T.R. Parvathy Ammal vs V. Sankara Menon

K.K. Narendran, J.—The short point that arises for consideration in this Civil Revision is whether the tenant of a residential building can take shelter under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965, for short the Act, if, residing in the building, he conducts a trade or business there and is depending for his livelihood mainly on the income derived therefrom. The petitioner is the owner of a building let out to the respondent tenant. She filed a petition for eviction before the Rent Control Court, Palghat against the respondent u/s 11(3) of the Act. The respondent''s case in the counter filed before the Rent Control Court was that the building was let out to him for his residence and for conducting a cycle shop. The respondent also contended that the petitioner did not bona fide require the building for her use and at any rate he is protected by the second proviso to Section 11(3) of the Act. The Rent Control Court dismissed the petition for eviction holding that the petitioner did not bona fide require the building and that at any rate the respondent is entitled to the protection of the second proviso to Section 11(3). The petitioner-landlord challenged the above order in appeal. The Appellate Authority allowed that appeal upholding the petitioner''s bona fide requirement of the building for her own occupation. The Appellate Authority also held that the respondent was not entitled to the protection of the second proviso to Section 11(3) as it was no proved in the case that there was no other suitable building available in the locality to carry on his business. Accordingly, the Appellate Authority reversed the order of the Rent Control Court and allowed the petition for eviction. The respondent-tenant went in revision before the District Judge, palghat. The learned District Judge though found the petitioner''s bona fide requirement of the building, allowed the revision and dismissed the petitioner''s eviction petition holding that the respondent was entitled to the protection of the second proviso to Section 11(3). The petitioner-landlord has come up in revision against the above order of the District Judge.

The second proviso to Section 11(3) of the Act reads:--

"Provided further that the Rent Control Court shall not give any direction 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 locality for such person to carry on such trade or business."

The evidence in the case is that the respondent-tenant resides in the building in question with his family and conducts the business of giving cycles on hire. In view of the fact that the respondent resides in the building with his family, it cannot be said that the building is not a residential building even though the tenant conducts a business also there. The case of the respondent is also, that he took the building for his residence and for conducting a cycle shop. It is clearly stated in the Rule 12 particulars appended to the petition for eviction that the building is a residential one. This is not controverted in the counter filed by the respondent. Even if the tenant of a residential building conducts some business also there, the building will not become a non-residential one. As per Section 17 of the Act a residential building can be converted into a non-residential building only with the written permission of the Accommodation Controller. In this case, the parties have no case that such a permission is there. One of the conditions insisted by the proviso is that no other suitable building should be available in the locality for the tenant to carry on the business or trade he is carrying on in the building from which he is sought to be evicted. So, the availability is of a building to conduct the trade or business. In other words, if a suitable non-residential building is available in the locality, the protection of the proviso will not be there. The proviso is unconcerned about the residential accommodation of the tenant. This can only be because ''he building contemplated by the proviso is a non-residential building in which he carries on his trade or business. So, the tenant of a residential building will not be entitled to the protection of the second proviso to Section 11(3) of the Act even though living there he carries on a trade or business also.

For the reasons stated above, it cannot be said that the decision of the Appellate Authority allowing eviction was in any way illegal, irregular or improper, in that case, the learned District Judge had no jurisdiction to interfere in revision u/s 20 of the Act. The impugned order is set aside. The eviction ordered by the Appellate Authority will stand. The respondent-tenant is given three months'' time to vacate the building. The Civil Revision Petition is allowed as above. The parties will suffer their costs.