K. Hassan Koya v. James George, Santosh Kumar and Kala Santosh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **RCRev..No.71 OF 2018** **AGAINST THE JUDGMENT IN RCA 53/2017 DATED 05-01-2018 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **AGAINST THE ORDER IN RCP 215/2015 DATED 25-01-2017 OF ADDITIONAL MUNSIFF COURT-I,KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **K. HASSAN KOYA S/O. KONNARI IBRAHIM KUTTY HAJI, SHOP NO. 5/3457 B & C, MAVOOR ROAD, KALATHINKUNNU AMSOM DESOM,KOZHIKODE-673 004** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 JAMES GEORGE, AGED 78 YEARS S/O. K.C. GEORGE, KULANGARA HOUSE, VENGERI VILLAGE,NEDUNGOTTUR DESOM, KOZHIKODE-673009** - **2 SANTHOSH KUMAR, AGED 49 YEARS S/O. BHASKARAN, ADUKKATH HOUSE,KUNNAMANGALAM, KOZHIKODE-673 571** **3 KALA SANTHOSH, AGED 44 YEARS W/O. SANTHOSH KUMAR, ADUKKATH HOUSE, KUNNAMANGALAM, KOZHIKODE-673 571.** **R1 BY ADV. KUM.ANAGHA LAKSHMY RAMAN R1 BY ADV. SRI.LEGITH T.KOTTAKKAL R1 BY ADV. SRI.K.B.SIVARAMAKRISHNAN R1 BY ADV. SRI.S.VINOD BHAT THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18-06-2019, THE COURT ON 02-09-2019 PASSED THE FOLLOWING:** ## **R.C.R.No.71 of 2018** -:2:- ## **“C.R.”** ## **A.HARIPRASAD & T.V.ANILKUMAR, JJ. --------------------------------R.C.R.No.71 of 2018 ---------------------------------Dated this the 2[nd] day of September, 2019** ## **O R D E R** ## **T.V.ANILKUMAR, J.** Concurrent orders of eviction of the revision petitioner under Section 11(8) of Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') passed by the Rent Control Court and Rent Control Appellate Authority, Kozhikode, are challenged by him in this revision. There were other grounds of eviction also taken against the revision petitioner under Sections 11(2)(b), 11(4) (ii) and 11(3) but all except Section 11(3) were considered and rejected by the Rent Control Court on merits. Ground under Section 11(3) of the Act was not pressed by the landlords at the trial itself and resultantly petition for the eviction ## **R.C.R.No.71 of 2018** ## -:3:- under that Section was dismissed as withdrawn. 2. The revision petitioner/tenant challenged the order of Rent Control Court in R.C.P.No.215/15 dated 25.1.2017 in R.C.A.No.53/2017 while the respondents/landlords chose to accept the dismissal of petition under Sections 11(2)(b), 11(4)(ii) and 11(3) of the Act as final. The Appellate Authority, Kozhikode, concurred with the order of eviction passed under Section 11(8) of the Act and dismissed R.C.A.No.53/2017 by its impugned order dated 5.1.2018. 3. The revision petitioner is conducting 'Jass Medicals' in the tenanted two rooms in the ground floor bearing Door No.V/3457 B&C situated within the limits of Kozhikode Corporation. These two rooms measuring 450 sq.ft. of area are part of a larger building jointly owned by all the three respondents. To the immediate west of the tenanted rooms, the 2[nd] respondent who is one of the coowners, is conducting a fast food business under ## **R.C.R.No.71 of 2018** -:4:- the name and style, 'Hot & Cool' in Door No.V/3457 D. On the immediate east, another tenant is conducting a hotel under the name 'Deluxe Restaurant'. The 1[st] respondent had purchased half right of ownership in the building from the erstwhile landlord. The remaining undivided half was purchased by respondents 2 and 3, who are husband and wife, while the tenancy in favour of the revision petitioner was continuing with the previous landlord. The landlord and tenant relationship is not a matter in dispute between the parties in this case. 4. According to the respondents, fast food business cannot be profitably run in the small room which has only approximate 150 sq.ft of area, due to lack of space and convenience. The room is too insufficient for the customers to sit and take food. It is therefore stated that the 2[nd] respondent wants to expand his 'Hot and Cool' fast food shop into a full-fledged restaurant, for ## **R.C.R.No.71 of 2018** ## -:5:- which he bonafide requires additional space. His idea is that if the eastern wall of the small room is removed, the adjacent tenanted rooms could be annexed to the existing Door No.V/3457 D in his occupation whereby he will be enabled to make use of the combined space for running a pucca restaurant in a profitable manner. He has also stated that no suitable building or premises are available in the locality for conducting a profitable restaurant and unless eviction is ordered under Section 11(8) of the Act, he would be put to more hardship than what the revision petitioner would suffer by his eviction. It is also contended that there are suitable and adequate number of vacant shop rooms in the locality where the tenant can conveniently shift his medical shop and moreover, he owns another medical shop and two shopping complexes in his own name in different places. The respondents after sending lawyer's notice demanding surrender of the ## **R.C.R.No.71 of 2018** -:6:- premises and not being satisfied with the reply to the notice, sought recovery of the tenanted premises under Sections 11(2)(b), 11(4)(ii), 11(3) and 11(8) of the Act. 5. In the courts below, the revision petitioner disputed the bonafides of additional accommodation sought by the 2[nd] respondent. He alleged that the need urged for converting fast food shop into a restaurant was not bonafide but only a ruse for eviction. If the landlords have genuine desire to expand the business, they could have chosen to evict the tenant of the room on the immediate east conducting Deluxe restaurant being run in the same building. Another contention in the counter statement is that the respondents have in their possession a palatial building recently built very close to the tenanted rooms which will be sufficient for running the proposed restaurant. The revision petitioner also denied availability of any suitable building in the locality for ## **R.C.R.No.71 of 2018** -:7:- shifting his medical shop and further contended that income derived from the business in the tenanted premises was the main source of his livelihood and further emphasised that the amount of hardship he would suffer in the event of eviction would be comparably more than what the landlord would suffer in the event of refusal of eviction. 6. Both the courts below considered the disputed questions as to the alleged bonafides of respondents for additional accommodation and also plea of comparative hardship urged between the parties in accordance with Section 11(10) of the Act and concurrently held on evidence that the landlords bonafide required additional accommodation to expand the business and the hardship in the event of refusal of eviction would be comparably more on them than the tenant who got alternative premises to shift his business. 7. No oral evidence was adduced by the ## **R.C.R.No.71 of 2018** ## -:8:- revision petitioner before the trial court. Exts.B1 to B6 documents produced by him were admitted in evidence. The 2[nd] respondent who is one of the co-landlords was examined as PW1 as the sole witness on the side of the eviction petitioners. Exts.A1 to A11 were admitted in evidence through him. Besides these items of evidence, Exts.C1 and C1(a) Commission report and sketch also form part of the evidence in the case. None of the parties examined the Advocate Commissioner as witness. 8. Same questions considered by the courts below with respect to the bonafides of alleged need for additional accommodation as well as the comparative hardship of parties were raised in this revision also. 9. The courts below considered Section 11(3) of the Act as quite irrelevant and meriting no adjudication as the same was given up by the landlords in the trial court itself. Eviction was ## **R.C.R.No.71 of 2018** ## -:9:- consequently ordered solely under Section 11(8) read with Section 11(10). 10. On a meticulous scrutiny of the entire pleadings in the eviction petition, we find from the pleadings that there are hardly enough allegations, which can constitute a ground under Section 11(3) of the Act and in fact, the incorporation of the Section was under a misconception. We are satisfied having regard to the nature and scope of allegations in the pleadings, that the only ground of eviction under Section 11(8) of the Act was made out in contradistinction with Section 11(3). 11. Under the provisions of the Act, the distinction maintained by the legislature between Section 11(3) and Section 11(8) is clear. The test to be applied in a proceeding for eviction under Section 11(8) or 11(3) as the case may be, for distinguishing these two grounds of eviction is to ascertain whether landlord and tenant are stated ## **R.C.R.No.71 of 2018** ## -:10:- to be occupying different portions of the same building owned by the landlord or whether the tenant is stated to be occupying the whole building of the landlord. If the landlord is in occupation of a portion of his building and asks for eviction of the portion let to his tenant urging need for additional accommodation for personal use, it would then be a case of eviction falling under Section 11(8). On the other hand, if the tenant is put in occupation of the entire building owned by the landlord who has no part of the structure in his custody, it is then a case brought for eviction under Section 11(3) of the Act alone, provided other conditions for eviction are also present. Legally, the grounds of eviction under Sections 11(3) and 11(8) are fundamentally different and considered therefore as mutually exclusive. The distinction emerging between these two grounds has been discussed in **S.R.Sabu v.** **T.K.Vasudevan and another (AIR 2001 SC 2881)** and **R.C.R.No.71 of 2018** ## -:11:- ## **Indian Saree House and ors. v. Radhalakshmy and** **ors. (2006(3) KLT 129)** . 12. The 2[nd] respondent is in admitted occupation of Door No.V/3457 D among the four rooms conducting fast food business. The immediate two eastern rooms in the building alone are the tenanted premises. The second respondent has planned to annex the petition schedule shop rooms to his room and convert the business into a profitable restaurant. His case therefore obviously falls under Section 11(8) of the Act. There is no case for the revision petitioner that he is in exclusive occupation of the whole building. Section 11(8) of the Act alone could therefore apply to such a situation in contradistinction with Section 11(3). The courts below, according to us, have rightly understood the case of the respondents as being covered and confined solely to Section 11(8) read with Section 11(10) of the Act. ## **R.C.R.No.71 of 2018** -:12:- 13. The learned counsel for the revision petitioner argued that the respondents could not legally fall back upon Section 11(8) and get eviction on that ground also. His submission is that all the three respondents being co-owners of the building could not have sought additional accommodation for the sole need of the 2[nd] respondent, since eviction otherwise than for common need and benefit of all co-owners is not contemplated by Section 11(8) of the Act. It is clear from the pleadings of the respondents that the additional accommodation sought is intended to satisfy the need of the 2[nd] respondent to conduct restaurant business expanding his current fast food shop. Referring to the testimony of PW1, who is the 2[nd] respondent, the learned counsel for the revision petitioner further submitted that the 1[st] respondent did not need the tenanted rooms for any purpose as he had already moved the Rent Control authorities for eviction of the tenant conducting ## **R.C.R.No.71 of 2018** -:13:- Deluxe restaurant in the eastern room for the purpose of housing an office for him. Respondents neither dispute pendency of the eviction petition brought against the tenant nor the need urged in that proceeding. 14. The argument of the learned counsel is that when co-owners seek eviction under Section 11(8), additional accommodation urged must necessarily be for their common and joint need as distinct from individual need of only one of them. According to him, this position cannot change despite Section 11(8) of the Act, employing the words ”additional accommodation” and “personal use” with reference to a singular landlord. Referring to Section 13(2) of the General Clause Act, 1897 and two decisions reported in **E.Alfred** **v. First Additional Income Tax Officer, Salem (AIR** **1958 Madras 11)** and **Palaniammal & others vs. Pavayammal & others (AIR 1985 Madras 310)** , it was canvassed that “landlord” used in singular in ## **R.C.R.No.71 of 2018** ## -:14:- Section 11(8) would include “landlords” in plural also. There is no doubt that singular expression 'landlord' becomes plural when more than one landlord invoke Section 11(8) for eviction. But there is nothing in Section 11(8) or the scheme thereof to suggest that the need advanced must necessarily be joint or common to all the co-landlords. If the co-owners mutually agree upon to recover tenanted premises for the additional accommodation and personal use of anyone of them, such a consensual arrangement between the landlords can never be said to militate against the spirit of Section 11(8). The argument of the learned counsel could be said to be sound only in a case where one among co-owners withholds his consent and refuses to join the proceeding for eviction. It is the settled position of law that one co-owner cannot seek to recover possession of tenanted premises except with the consent of other shares also. Such a ## **R.C.R.No.71 of 2018** -:15:- situation has never emerged in the present case and further there is unequivocal assertion made by first respondent in the eviction petition that he has no objection to the tenanted rooms being used for the restaurant business of the second respondent. The contention of the revision petitioner that eviction under Section 11(8) will not lie in the absence of co-landlords pleading joint need and accommodation for all of them is therefore liable to be rejected. 15. The next question that arises for consideration is whether the need urged by the 2[nd] respondent for additional space for expanding his fast food business has been shown to be bonafide or not. The bonafide claim understood in terms of Section 11(10) of the Act is no way different from the expression 'bonafide' used in Section 11(3) of the Act. Bonafide need or requirement must be the outcome of the natural, sincere, real and honest desire of the landlord rather than a mere wish or ## **R.C.R.No.71 of 2018** ## -:16:- desire. This principle of law has long been settled as is discernible from **Mattulal v. Radhe Lal (AIR 1974 SC 1596), Chandukutty v. George (1977 KHC 239)** and **Adil Jamshed Frenchman (Dead) By Lrs. v. Sardar Dastur Schools Trust and others** **(2005 KHC 413)** . We find that keeping these principles in view, both the courts below considered the alleged bonafide claim of the respondents and found on evidence that the 2[nd] respondent bonafide needed additional accommodation of tenanted premises for expanding his fast food business into a pucca restaurant. Since the findings are based on facts and evidence, we do not find any reasonable ground to interfere with the same in exercise of this limited revisional jurisdiction under Section 20 of the Act. 16. One of the arguments advanced by the learned counsel for the revision petitioner is that it was more appropriate for the respondents ## **R.C.R.No.71 of 2018** -:17:- to have sought eviction of the tenant in occupation of the eastern room where Delux restaurant is being run, if the need of the respondents is really bonafide and genuine. The argument is based on the fact that the eastern room has all the facilities for running a new restaurant since another restaurant is already being conducted therein. But this argument is not capable of acceptance in asmuch as the tenanted rooms are very closely adjacent to the room where fast food business is conducted and taking advantage of the proximity of both the rooms, the 2[nd] respondent could easily combine both the premises together by removing the middle wall after recovery of petition schedule premises. Further, it is within the sole choice and wisdom of the landlords to identify the premises where they intend to run or expand their proposed business. The tenant has no say at all in the matter. No tenant can dictate, for any justifiable ## **R.C.R.No.71 of 2018** -:18:- reason, that the landlord ought to confine eviction to any particular tenanted room. 17. The bonafides of the claim is attacked by the revision petitioner on another premise also, namely, the room in the occupation of second respondent is reasonably sufficient to carry on his current fast food business even in the absence of addition of more space. PW1 admitted that at the time of commencement of tenancy, he was a franchisee of Five-star chicken brand. The revision petitioner therefore contended that the space in the room was sufficient for sale of meat in packed materials. But PW1 did not admit that packaged meat alone was sold in his shop. According to him, the room was utilised as dining place for serving the customers with cooked food. Ext.C1 report of the Commissioner corroborates what PW1 said in this respect. The Advocate Commissioner found the furniture arranged inside the room and the food also being served in the ## **R.C.R.No.71 of 2018** ## -:19:- tables. He too opined that there was crowd of customers waiting outside the shop due to lack of space and he was convinced that room was not adequate enough to cater to the need of the customers. No objection is seen filed to this report nor this part of the evidence on record rebutted by the revision petitioner. The courts below after appreciating the evidence concluded that the claim of the landlords was bonafide. We too agree with the finding that the claim for additional accommodation was genuine. 18. The next challenge as to the finding of the courts below relates to the issue of comparative hardship of parties recorded under Section 11(10) of the Act. According to the revision petitioner, the hardship will be comparably more on him in case of his eviction, than the 2[nd] respondent since he has recently constructed a new and suitable building in the locality where a restaurant suiting his needs ## **R.C.R.No.71 of 2018** ## -:20:- could be conveniently conducted. 19. It is also contended that the 2[nd] respondent is not depending for his livelihood on the income from the fast food business conducted in the western room, since he has got many other businesses in several other places in the State. He is also alleged to be a licensee of a canteen run in the premises of Baby Memorial Hospital Complex closely situated to the tenanted building. On the other hand, according to the version of the 2[nd] respondent, the revision petitioner has got a Medical shop in his own name in Parappanangadi Municipality and also a two-storied building owned by him in Ward No.22 of the same Municipality where he can shift his Medical shop from the petition schedule premises. Similar facility of accommodation was contended to be available in his own another building also in Ward No.15 of Parappanangadi Municipality. 20. The courts below weighed the evidence on ## **R.C.R.No.71 of 2018** ## -:21:- both sides and after appreciation of all materials on record, came to a conclusion that there was nothing on record to show that advantage that would accrue to the respondents in the event of eviction of revision petitioner, would not outweigh the hardship suffered by the latter on eviction. The learned counsel for the revision petitioner strenuously contended that the finding entered by the courts below under Section 11(8) read with Section 11(10) of the Act was illegal, irregular and improper in asmuch as it was rendered without proper appreciation of evidence and also without taking notice of the legal principles having bearing on the legal theory of comparative hardship. 21. Sections 11(8) and 11(10) of the Act read as follows; “ **Section 11(8)** : A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the **R.C.R.No.71 of 2018** ## -:22:- landlord in possession thereof, if he requires additional accommodation for his personal use. xxxxxxxxxxxxxx **(10)** The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7), or sub-section (8) is bonafide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application: Provided that, in the case of an application made under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord: Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.” 22. It is mandatory that a definite finding on the issue of comparative hardship between the ## **R.C.R.No.71 of 2018** -:23:- parties must be entered in a proceeding for eviction under Section 11(8). If the Rent Control authorities find on evidence that hardship to which the tenant would be exposed in the case of eviction will be higher than that of the landlord in the case of refusal of eviction, prayer for eviction could only be declined. If, on the other hand, the evidence fortifies a finding that landlord would occasion to suffer greater than the tenant in case of refusal of eviction, an order of eviction under Section 11(8) in such a case would certainly be justified. 23. But most often, question arises as to how the rival fight between parties pleading comparative hardship could be determined and what could be counted as relevant matters and circumstances relevant for a finding on the claim based on comparative hardship. This is because the specific conditions determining the issue as to comparative hardship are not enumerated in Section ## **R.C.R.No.71 of 2018** ## -:24:- 11(8) as in the case of Section 11(3). 24. Section 11(3) of the Act has laid down in very clear and specific terms certain conditions to be satisfied by the landlord as well as tenant in prosecution or defence of eviction proceeding as the case may be, before the Rent Control Authorities. A landlord not being in possession of any building of his own in the locality sufficient to satisfy his proved bonafide need, cannot nonetheless recover tenanted premises on the ground of Section 11(3) if the tenant mainly depends on the income derived from his business and further has no alternative suitable accommodation available in the locality for shifting his business. Strictly speaking, none of the conditions appearing in Section 11(3) is relevant in an eviction petition brought under Section 11(8) seeking additional accommodation. Section 11(8) is absolutely silent as to the relevant considerations on which comparative ## **R.C.R.No.71 of 2018** -:25:- hardship in issue between parties could be decided. Nonetheless the _preponderance of judicial precedents_ is in favour of the view that availability of suitable and alternative premises with both the landlord and tenant to satisfy their needs in a proceeding for eviction under Section 11(8) is one of the matters relevant to the decision on the issue of comparative hardship between the parties. Equally relevant also is the question as to whether parties mainly depend for their livelihood on the income derived from the business or trade in case tenanted premises have been let out for conducting business. Reference in this connection could be profitably made to **Phiroze Bamanji Desai v. Chandrakant M.Patel & ors. (AIR 1974 SC 1059)** , **Mst.Bega Begum & ors. v. Abdul Ahad Khan (Dead) by L.Rs & ors. (AIR 1979 SC 272)** , **Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada [(2003)2 SCC 320]** , **Arumugham v. R.Leena (2005 KHC 958)** , **Jose v. Antony (2005 KHC** ## **R.C.R.No.71 of 2018** ## -:26:- **44)** and **Indian Saree House and ors. v.** **Radhalakshmy and ors. (2006(3) KLT 129)** . In our view, the considerations relevant for decision on the issue of comparative hardship in terms of Section 11(10) are unrestricted and wider in scope than the conditions specified in Section 11(3). But only thing that needs to be ensured by the court is that those considerations must be materially relevant and essential to the just decision of the issue. Discretion of the court in this respect should be exercised carefully guided by sound judicial principles and also in conformity with principles of justice, equity and good conscience. Burden of proving such relevant facts within the scope of Section 11(10) is equal to both the parties unlike the burden of proof cast by Section 11(3) of the Act. The landlord seeking eviction under Section 11(8) has not only to prove the bonafides of his claim for additional accommodation but also the comparable degree of ## **R.C.R.No.71 of 2018** -:27:- hardship which he would suffer than the tenant in the case of refusal of eviction. Burden thereafter shifts to the tenant who would then be liable to show that hardship on him exceeded the landlord in case he seeks to secure a decision favourable to his continuance. Two decisions reported in **AIR 1974 SC 1059** cited _supra_ and **Arjunan v. Eranu (1991(2) KLT 279)** make the legal position clear in this respect. 25. The learned counsel for the revision petitioner seriously urged that the 2[nd] respondent owned a six storied palatial building having an approximate area of 13,000 sq. ft. around 250 ft. north of the petition schedule shop rooms, where he could conveniently conduct a restaurant business to satisfy his alleged need. PW1 also admits that he owns a building in the same locality, but according to him, the construction has not been so far finished due to his financial stringency. Ext.C1 report discloses that ## **R.C.R.No.71 of 2018** -:28:- construction progressed only upto the stage of plastering. According to PW1, he would require an additional amount of more than Rs.1½ Crores to finish the construction for which he is not in a position to raise funds in the near future. We do not have any rebuttal evidence adduced by the tenant disputing the above assertion made by PW1 as false. If, as a matter of fact, PW1 cannot complete the building owing to dearth of funds, his mere ownership and possession of the building is no ground to hold that he failed to establish the plea of comparative hardship under Section 11(10). 26. There is another allegation that PW1 is conducting in his name a canteen in the compound of the Baby Memorial Hospital complex and income from canteen is an additional source for his livelihood. First part of the allegation has not been proved to be correct since Ext.B3 licence issued under the Food Safety Standards Act, 2006 ## **R.C.R.No.71 of 2018** -:29:- shows that he is only a Manager of the canteen. The revision petitioner produced Ext.B4 licence issued under the FSS Act, 2006, showing that PW1 is a proprietor of a restaurant in Beach Road, Calicut-1. This seems to be correct even though PW1 tried to explain in vain that his father is the real proprietor. PW1 was shown to be conducting a shop selling soft-drinks in New Bus Stand, Kozhikode, under the licence issued from the Corporation. This is not denied by PW1. He has admitted to be conducting a crockery business within Calicut Corporation near the EMS Stadium Complex. The courts below examined these evidence and held that none of the business premises of PW1, except the fast food shop is in the ownership of the respondents and therefore, eviction cannot be denied on the ground of possession of alternative premises to shift the business. One thing is, however, certain as found by the courts below from the evidence on record that the 2[nd] ## **R.C.R.No.71 of 2018** -:30:- respondent is not depending for his livelihood mainly on the income derived from the tenanted rooms since he has been proved to own other businesses in different places and is earning from those sources also. 27. The contention of the respondents that revision petitioner is conducting a Medical shop under the name, Jass Medicals in Payaningal Junction within Parappanangadi Municipality is proved by Ext.A8 information issued by the State Public Information Officer in reply to the queries raised under the Right to Information Act, 2005. The revision petitioner did not go to box nor deny Ext.A8. Ext.A10 is a similar reply obtained from the same Municipality showing that in Ward No.15, the revision petitioner owns a building consisting of 10 rooms and he keeps them in his occupancy without any of rooms being let out for any trade of others. Ext.A11 is another reply from the same Municipality which discloses that in Ward No.22 ## **R.C.R.No.71 of 2018** ## -:31:- also, the revision petitioner has a two-storied building in his own occupancy. None of the rooms has been rented out as per the information collected through the same reply. Ext.A7 reply obtained from the Palakkad Municipality under the RTI Act shows that the revision petitioner owns jointly a building in Palakkad along with other family members. These facts would establish that the revision petitioner is also not a person who is mainly depending for his livelihood on the income derived from 'Jass Medicals'. The tenant has not rebutted the above items of evidence nor explained as to why he is reluctant to shift 'Jass Medicals' to other places in his possession. Nothing has been shown to the effect that the buildings in his possession are unsuitable for a medical shop. 28. It is true that buildings in his possession are situated outside the locality or town in which petition schedule shop rooms are ## **R.C.R.No.71 of 2018** -:32:- located. In our view, having regard to the wider range and scope of Section 11(8) than that of Section 11(3), in deciding the plea of parties with respect to comparative hardship, alternative and suitable buildings in the possession of parties situated in different locality or town are also relevant facts for consideration. The failure of revision petitioner to explain as to why he abstains from availing the alternative accommodation is a strong circumstance to indicate that he is not going to suffer any hardship in the event of his eviction from the tenanted premises. 29. Ext.C1 commission report specifically points out that around 50 mtrs. west to the petition schedule shop rooms, there is a vacant shop named 'Tea Brake' and further there is another shop room also similarly vacant just opposite to the first mentioned shop. The revision petitioner has not explained as to how these vacant shop rooms become unsuitable to him, ## **R.C.R.No.71 of 2018** -:33:- despite there being strong assertion by PW1 that the tenant could conveniently shift to those vacant shop rooms. No objection has been filed to the Commission report nor the Advocate Commissioner was summoned and examined touching upon the veracity of the commission report. The commission report goes a step further to point out that there are three vacant shop rooms situated around 100 mtrs. east of the petition schedule shop rooms. More number of shop rooms have been pointed out as lying vacant around 500-600 mtrs. away to further east. The Advocate Commissioner has noticed that the mobile phone numbers were also displayed to enable the interested parties to contact the owners or their agents. In paragraph 12 also, availability of a few more vacant rooms is narrated. 30. The courts below discussed all these facts and according to us, on proper assessment of materials on record and evidence, it was rightly ## **R.C.R.No.71 of 2018** ## -:34:- held that alternative accommodation was available for the revision petitioner for shifting business. 31. We are satisfied that there is nothing on record to show that advantage to the respondents consequent on eviction of revision petitioner will outweigh the hardship that will be caused to the revision petitioner on his eviction. Nothing on record warrants our interference with the findings of the courts below recorded under Section 11(8) read with Section 11(10) of the Act. The impugned order of eviction passed by the Rent Control Appellate Authority, Kozhikode, is consequently confirmed. In the result, the revision fails and it is dismissed. Sd/- ## **A.HARIPRASAD JUDGE** Sd/- **T.V.ANILKUMAR JUDGE** ami/DST