IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 RCRev..No. 87 of 2009() ----------------------- RCA.35/2007 of D.C. & SESSIONS COURT,KOLLAM RCP.60/2005 of ADDL.MUNSIFF COURT, KOLLAM .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS --------------------------------------------------------------- 1. SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM. 2. PROJECT OFFICER, QUILON KHADI AND VILLAGE INDUSTRIES BOARD, NEAR RAILWAY STATION, KOLLAM. BY ADV. SRI.K.P.HARISH,SC,KERALA KHADI BOARD RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. KAMALUDHEEN MUSALIAR, AGED 62, S/O.THANGALKUNJU MUSALIAR, SITARA, ASRAMOM, KOLLAM. 2. T.K.JALALUDDIN MUSALIAR, AGED 59, S/O.THANGAL KUNJU MUSALIAR, MAISON AMITAGE, KILIKOLLOOR, KOLLAM. 3. ABDUL KAREEM MUSALIAR, AGED 52, S/O.THANGAL KUNJU MUSALIAR, KAMPIKETTIL HOUSE, KANNIMEL CHERRY, KILIKOLLOOR, KOLLAM. 4. USMAN MUSALIAR, AGED 55, S/O.THANGAL KUNJU MUSALIAR, GUL MOHUR, PATTOM, THIRUVANANTHAPURAM. 5. ASUMA BEEVI, AGED 60, D/O.THANGAL KUNJU MUSALIAR, KOHINNOOR, PULIMOODU, THIRUVANANTHAPURAM. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R .No.87 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of April, 2009 ORDER C.K.Abdul Rehim, J. The Secretary and the Project Officer of the Kerala Khadi and Village Industries Board, Kollam, the tenant of the petition schedule building, are the revision petitioners. The respondents/landlords sought eviction on the grounds under Sections 11(4)(iii) and 11(4)(v) of the Kerala Buildings ( Lease and Rent Control) Act, 1965. The ground under Section 11(4)(v) was not pressed before the Rent Control Court. The Rent Control Court ordered eviction under Section 11(4) (iii), which was confirmed in appeal by the appellate authority. This revision petition is against the findings of the courts below, ordering eviction under Section 11(4)(iii). 2. The schedule building was tenanted during the year 1982. It is evident that the petition schedule building is a shop room having an area of about 300 Sq.ft. It is admitted case that during the year 1996, the tenant constructed a two storied building in 15 cents of land owned by them. The building is having an approximate carpet area of RCR.No.87/09 2 5000 Sq.ft. The contention of the landlords is that, since the the tenant had put up a building reasonably sufficient for their requirement in the same city, they are liable to be evicted under the provisions of Section 11(4)(iii). The Rent Control Petition was resisted on the ground that the building constructed by the tenant is intended to house their District Office and also to conduct wholesale business therefrom. The petition schedule building is situated at Chinnakada, whereas the new building put up by the tenant is situated at Karbala junction, near the Railway Station. It is evident that both the buildings are situated within the city of Kollam in places having commercial importance. The contention of the tenant that the area wherein the new building is put up is not suitable for retail business. It has come out in evidence that the tenant has already started business of selling articles from the new building. Eventhough it was denied by the tenant that no retail business is being conducted therefrom, it has come out in evidence through Exts.A4 and A5 bills that retail sale is also conducted therein. CPW1, the representative of the tenant, admitted that the bill related to retail sale from the new building. But according to him, there is no regular retail and if anybody comes for retail purchase, the same will not be refused. RCR.No.87/09 3 3. The question which arises for consideration is that whether the building put up by the tenant is reasonably sufficient for their requirement for conducting business carried on in the tenanted premises.. The sufficiency of the requirement of the tenant has to be evaluated, not on the basis of any financial viability. It is held by this court in Kalliani Amma v. Sarojini Amma ( 2004 (2) KLT 976) that the Rent Control Court is not bound to examine the question whether it would be financially viable for the tenant to conduct the business in the building put up. 4. On a comparison of the area available for occupation in the schedule building and in the building newly put up by the tenant, we could not find any reason to say that the building put up by the tenant is not reasonably sufficient for their requirement. We are afraid, we could not entertain the apprehension expressed by the tenant that the area is not suitable for retail business, in view of the provisions in Section 11(4) (iii) of the Act. Further contention that they are intending to house the District office in the new building and there will not be space available for starting retail business, also could not not be considered in view of the fact that the building put up by the tenant is RCR.No.87/09 4 sufficiently large. 5. The legislative intent of Section 11(4)(iii) is that the tenants who has put up a building of their own or subsequently acquired possession of any other building, should not be permitted to have the luxury of more than one building in their possession, when there is shortage for availability of commercial buildings, at large. Therefore, the contention raised to resist the eviction under Section 11(4) (iii) is not tenable, when it is proved that the tenant had already put up another building in the same city which is comparatively very big when compared to the scheduled room. The tenant had not succeeded in proving through any cogent and reasonable evidence that the building put up by them is not reasonably sufficient for carrying on the business conducted in the premises. In the attenuated jurisdiction under Section 20 of the Rent Control Act, we do not find any reason to interfere with the concurrent findings of facts arrived by the courts below. We do not find any illegality, irregularity or impropriety in the findings of the courts below. Therefore, there is no merit in the revision petition and accordingly the same stands dismissed. 6. Sri.K.P.Harish, learned counsel appearing for the revision RCR.No.87/09 5 petitioners, lastly sought indulgence of this court for granting reasonable time for the revision petitioners to vacate the schedule premises. This request is opposed by Sri.V.V.Raja, learned counsel appearing for the respondents. However, considering the entire facts and circumstances of the case, we are inclined to grant reasonable time for the revision petitioners to vacate the tenanted premises. 7. In the result, the revision petition is disposed of on the following directions; The Execution Court is directed to keep in abeyance eviction of the revision petitioners from the tenanted premises till 01/11/2009, if the petitioners jointly file an affidavit before that court, within three weeks from today, undertaking to hand over peaceful and vacant possession of the schedule premises to the landlords and continues to pay the rent which falls due till October 2009 regularly, without any default. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.87/09 6