## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
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## **`&`**
## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`**
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WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944
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## **`RCREV. NO. 270 OF 2017`**
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AGAINST THE ORDER/JUDGMENT DATED 26.07.2016 IN RCA NO.275 OF 2010 OF DISTRICT
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## **`COURT & SESSIONS COURT,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.100`**
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OF 2007 DATED 26.07.2016 OF MUNSIFF COURT, THALASSERY
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## **`REVISION PETITIONER/APPELLANT/PETITIONER:`**
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P.RAHMUNNISA
AGED 49 YEARS
W/O. ABDUL GAFOOR, AGED 49 YEARS,K.P.HOUSE, CHEMBILODE,
MOUWANCHERI P.O.,KANNUR - 670 613.
BY ADVS.
SRI.K.C.SANTHOSHKUMAR
SMT.K.K.CHANDRALEKHA
SMT.C.LEENA
SMT.K.S.SUDHA
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## **`RESPONDENT/RESPONDENT/RESPONDENT:`**
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P.K.PAVITHRAN
S/O. RAMUNNI, PROPRIETOR,NIJIL BUS, ROOM NO.C.P 111 425,HOSPITAL
ROAD, CHAKKARAKKAL,MOUWANCHERI, KANNUR - 670 613.
BY ADVS.
SRI.T.ASAFALI
SMT.LALIZA.T.Y.
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## **`THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON`**
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16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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R.C.R.No.270 of 2017
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## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`**
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------------------------------------------------
R.C.R.No.270 of 2017
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Dated this the 16[th] day of November, 2022
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## **`ORDER`**
## **`A.MUHAMED MUSTAQUE, J.`**
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The landlady is before us questioning the
concurrent judgment against her, dismissing a
petition for eviction on the ground of bona fide
need. The need that was projected is for her son.
He wants to start a business in Computer Sales and
Service Centre. The landlady's son was examined.
He possessed the qualification in Diploma
(Mechanical Engineering). Noting that he is not
qualified in computer, the Rent Controller as well
as the Appellant Authority have doubted his
competency to start such business. Apart from
that, it has come out pending the Rent Control
Petition, the landlady has constructed a multi-
storied building just behind the tenanted premises
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along with her siblings. The authorities below
holding that the landlady is having possession of
other buildings, as referrable under the first
proviso to Section 11(3) of Kerala Buildings
(Lease & Rent Control) Act, 1965 (for short, the
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'Act'), declined eviction.
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2.The Rent Control Authorities are not
masters to decide how one could carry his
business in the tenanted premises. The assessment
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ofbona fide need is not related to the
assessment of qualification to have expertise in
a business proposed, but essentially with
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reference to the state of mind projected before
the Court, vis a vis the requirement. It is
axiomatic that one could carry his business by
engaging any professional who has expert
knowledge in that. It is not necessary that one
should carry himself all that is required to run
a business. If that be the case, no one would be
able to start a business without acquiring domain
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knowledge. The computer Sales and Service
Centers perhaps may require an expertise or
domain knowledge. It is possible for the son of
the landlady to engage any employees who are
having domain knowledge. The perspective of
enquiry in a Rent Control Petition must be
objectively to find out that the need projected
is bona fide or not. It shall not be in such a
way to analyze the need as an employer in looking
up on the qualification of the employee to engage
him. Both authorities misdirected themselves
failed in conducting an enquiry objectively to
come to a conclusion. They themselves misplaced
on a wrong perspective to arrive at the
conclusion based on surmises and conjectures.
The concurrent findings are so absurd and
perverse, nothing prevents this Court from
invoking its revisional jurisdiction to set aside
those concurrent findings.
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3.In regard to the availability of a
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suitable building for the landlady in the same
locality, perhaps deeper discussions are required
in this matter. The first proviso to Section
11(3) states as follows.
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## `11.` **`Eviction of tenants.-`**
## `xxxxxxxxxxxx xxxxxxxxxxx`
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(3)A landlord may apply to the Rent
Control Court for an order directing the
tenant to put the landlord in possession of
the building if he bona fideneeds the
building for his own occupation or for the
occupation by any member of his family
dependent on him.
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Provided that the Rent Control Court shall not
give any such direction if the landlord has
another building of his own in his possession
in the same city, town or village except where
the Rent Control Court is satisfied that for
special reasons, in any particular case it
will be just and proper to do so;
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Provided further that the Rent Control
Court shall not give any direct to a tenant to
put the landlord in possession, if such tenant
is depending for his livelihood mainly on the
income derived from any trade, or business
carried on in such building and there is no
other suitable building available in the
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locality for such person to carry on such trade
or business;
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Provided further that no landlord whose
right to recover possession arises under an
instrument of transfer inter vivos shall be
entitled to apply to be put in possession
until the expiry of one year form the date of
such transfer;
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Provided further that if a landlord after
obtaining an order to be put in possession
transfers his rights in respect of the building
to another person, the transferee shall not be
entitled to be put in possession unless he
proves that he bona fideneeds the building for
his own occupation or for the occupation by any
member of his family dependent on him.
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4. If there are available suitable buildings
in the locality for the landlady, she has to plead
and prove special reasons for non-occupying those
buildings. If the landlady fails to plead and
prove special reasons, the Rent Control Court can
decline the order of eviction under Section 11(3)
of the Act.
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5.The Rent Control Petition was filed in the
year 2007. Pending the Rent Control Petition, the
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landlady along with her siblings started a new
construction behind the building of the tenanted
premises. The landlady appears to have 4 rooms in
that new building. An Advocate commissioner was
appointed in the matter. The Advocate Commissioner
reported the nature and lie of the building. The
Advocate Commissioner also reported the plinth
area of each room in the new building. In the
chief examination itself, the landlady and others
spoke about the unsuitability of the building
stating that the dimension of these rooms are less
comparing to the petition schedule building. It
is also stated that these rooms is facing side
roads and whereas the tenanted premises is facing
the main road of Chakkarakkal, Thalassery.
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6.This Court in Asher v. Hassankutty Hajee
[ILR 2004 (2) Ker. 506] had held that, if a
landlord is in possession of a room in the co-
ownership, the first proviso to Section 11(3) of
the Act will not be attracted. But here is a case
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where the landlady, admittedly is having 4 separate
rooms in the new building after the partition with
the siblings. Therefore, it cannot be said that
those rooms are not in exclusive possession of the
landlady. What is expected from the landlady in
such circumstances, is an explanation for not
occupying the new rooms. It was not possible for
the landlady to plead in regard to the rooms
available with them when the same was not in
existence at the time of filing the Rent Control
Revision. According to the landlady, the
construction of a new building was carried out in
the year 2009. According to the counter filed by
the tenant, the construction of the new rooms was
also recent. That be the case, non-mentioning of
these rooms in the petition is justified. The
explanation put forward by the landlady for non-
occupying the rooms available with her, according
to us, is acceptable. Nobody has a case that the
room is having the same advantage as the petition
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schedule building. The petition schedule building
is facing the main road. It is also stated by the
landlord that the dimensions and plinth area is
less than the tenanted premises. It is for the
landlady or her dependents to decide where they
have to start their business. Once it is explained
that the additional rooms are available with the
landlady is not suitable to the proposed business,
the tenant cannot dictate those rooms should be
acquired for the need urged. It is to be noted that
the tenant is a bus operator and is using the
tenanted premises as an office for his staff. He
could have very well requested the landlady to
shift him into the new rooms. He has not preferred
for obvious reason that the room in his occupation,
is having the advantage of road frontage. This
would also show the claim of the landlady that
other rooms available are not suitable for her. The
explanation put forward by the landlady, in such
circumstances, ought to have been accepted by the
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Authorities below.
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7. Therefore, we are of the view that finding
that the petition is hit by the first proviso to
Section 11(3) is unsustainable.
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9. Coming back to the protection of the tenant
under the second proviso to Section 11(3) of the
Act, it is to be noted that the tenant is not
depending upon any income from the petition
schedule premises. He is a bus operator. If that
be so, he cannot also claim protection under the
second proviso to Section 11(3) of the Act.
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In the result, this Rent Control Revision is
allowed. The impugned orders are set aside. The
tenant is ordered to surrender the building within
one month from today.
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## **`Sd/-`**
## **`A.MUHAMED MUSTAQUE JUDGE`**
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Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
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Raj.
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