P. Rahmunnisa v. P.K. Pavithran

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`** ``` WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 ``` ## **`RCREV. NO. 270 OF 2017`** ``` AGAINST THE JUDGMENT DATED 26.07.2016 IN R.C.A. NO.275 OF 2010 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, DISTRICT JUDGE, THALASSERY IN R.C.P. NO.100 OF 2007 ON THE FILE OF THE RENT CONTROLLER/MUNSIFF, THALASSERY ``` ## **`REVISION PETITIONER/APPELLANT/PETITIONER:`** ``` 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 ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT:`** ``` 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. ``` ## **`THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON`** ``` 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.C.R.No.270 of 2017 ``` ``` 2 ``` ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`** ``` ------------------------------------------------ R.C.R.No.270 of 2017 ------------------------------------------------ Dated this the 16[th] day of November, 2022 ``` ## **`ORDER`** ## **`A.MUHAMED MUSTAQUE, J.`** ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 3 ``` ``` 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 ``` ``` 'Act'), declined eviction. ``` ``` 2.The Rent Control Authorities are not masters to decide how one could carry his business in the tenanted premises. The assessment ``` ``` ofbona fide need is not related to the assessment of qualification to have expertise in a business proposed, but essentially with ``` ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 4 ``` ``` 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. ``` ``` 3.In regard to the availability of a ``` ``` R.C.R.No.270 of 2017 ``` ``` 5 ``` ``` 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. ``` ## `11.` **`Eviction of tenants.-`** ## `xxxxxxxxxxxx xxxxxxxxxxx` ``` (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. ``` ``` 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; ``` ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 6 ``` ``` locality for such person to carry on such trade or business; ``` ``` 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; ``` ``` 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. ``` ``` 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. ``` ``` 5.The Rent Control Petition was filed in the year 2007. Pending the Rent Control Petition, the ``` ``` R.C.R.No.270 of 2017 ``` ``` 7 ``` ``` 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. ``` ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 8 ``` ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 9 ``` ``` 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 ``` ``` R.C.R.No.270 of 2017 ``` ``` 10 ``` ``` Authorities below. ``` ``` 7. Therefore, we are of the view that finding that the petition is hit by the first proviso to Section 11(3) is unsustainable. ``` ``` 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. ``` ``` 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. ``` ## **`Sd/-`** ## **`A.MUHAMED MUSTAQUE JUDGE`** ``` Sd/- SHOBA ANNAMMA EAPEN JUDGE ``` ``` Raj. ```