C.K. Ashalatha Divakaran v. T.K. Sahira and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940 RCRev..No. 363 of 2017 RCA 135/2010 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP 306/2005 of RENT CONTROL COURT (MUNSIFF), KANNUR REVISION PETITIONER(S)/3RD APPELLANT/4TH RESPONDENT C.K. ASHALATHA DIVAKARAN, AGED 62 YEARS, D/O. (LATE) C.T. SREEDHARAN, SUSHEELA VILLA, MILL ROAD, KANNUR. BY ADVS.SRI.JESWIN P.VARGHESE SMT.K.P.SURYA ## RESPONDENT(S)/PETITIONERS: 1. T.K. SAHIRA AGED 45 YEARS, D/O. SHAHEED, UNIVERSAL MEDICALS, KL-VI, 250 SHOP, NEAR TO HOTEL KALYANA KRISHNA BHAVAN, SOUTH BAZAR, KANNUR - 2, PIN - 670 002. 2. C.K. CHANDRA PRABHA, D/O. (LATE) C.T. SREEDHARAN, SUSHEELA VILLA, MILL ROAD, KANNUR, PIN - 670 001. 3. SUBHA SASIDHARAN, W/O. (LATE) SASIDHARAN, SUSHEELA VILLA, MILL ROAD, KANNUR, PIN - 670 001. 4. SUSANTH SASIDHARAN, W/O.(LATE), SASIDHARAN, SUSHEELA VILLA, MILL ROAD, KANNUR, PIN - 670 001. ## 5. SUSHIL SASIDHARAN, W/O. (LATE) SASIDHARAN, SUSHEELA VILLA, MILL ROAD, KANNUR, PIN - 670 001. R1 BY ADV. SRI.ABDUL RAOOF PALLIPATH R1 BY ADV. SRI.K.R.AVINASH (KUNNATH) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **'CR'** **K. HARILAL & ANNIE JOHN, JJ. ------------------------------------------RCR No. 363 of 2017 (A) -----------------------------------------Dated this the 11[th] day of July, 2018.** ## **ORDER** ## K. Harilal,J. The revision petitioner is the third appellant/landlord in RCA No. 135 of 2010 of the Rent Control Appellate Authority, Thalassery. The aforesaid appeal was filed challenging the judgment passed by the Rent Control Court, Kannur in I.A.No. 1658 of 2009 in RCP No. 306 of 2005. The said application was filed by the first respondent/tenant herein seeking permission to construct building as per the plan approved in the name of the revision petitioner/landlord and to intimate the same to the Municipality for further steps and renewal of permit, if necessary. 2. The first respondent is the tenant who was evicted from the petition schedule shop room in execution of an order passed against him under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act (‘the Act’ for short). 3. According to the first respondent, he had surrendered the tenanted shop room in compliance with the order of eviction passed against him under Section 11(4)(iv) of the Act and the appellant RCR No.363/2017 -2- demolished the entire building before 1 1/2 years. In spite of the lapse of more than one year after the surrender of the petition schedule shop room and demolition of the entire building, reconstruction work of the new building is not yet started. The building plan granted by the Municipality is in force and he along with the other tenants are ready to construct one room each in the ground floor as per the plan. According to him, the appellant wilfully neglected to reconstruct the building and on the failure of compliance with the direction in the order of eviction, he is entitled to get permission to reconstruct the petition schedule room in accordance with the building permit and plan. So he prayed for the same. The other tenants also filed similar petitions with the very same relief. 4. The revision petitioner filed objection contending that the Rent Control Court has no power to direct the Municipality to renew the permit. The Rent Control Court ceased to have power and it is for the Munsiff Court to execute the order passed by the Rent Control Court. The first respondent did not surrender vacant possession of the building voluntarily. Eventually, the petitioner filed an EP and the tenanted premises was vacated pursuant to the order passed in the said EP. On account of the delay in getting the vacant possession of the building, the permit granted by the Municipality for the reconstruction of the building was lapsed. Moreover, there is material change in the Municipal Rules regarding the open space to be left in front of the building. The cost of materials required for construction RCR No.363/2017 -3- considerably also went high. He has not neglected to re-construct the building. The aforesaid petition was filed more than one year after the delivery of the petition schedule building and therefore, it is barred by limitation. 5. After considering the rival pleas stated above, the Rent Control Court passed the common order allowing all the petitions as prayed for. Even though the revision petitioner preferred appeals, the Rent Control Appellate Authority also concurred with the findings of the Rent Control Court and dismissed all the appeals, by a common judgment. The legality and propriety of the common findings, whereby the courts below granted permission to the respondent/tenant to reconstruct the building, after obtaining necessary permission from the Municipality are challenged in this RCR. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 7. The scope and the extent of consideration in this revision petition is confined to the legality and propriety of the concurrent findings of the courts below whereby the first respondent along with the other tenants were granted permission to re-construct the tenanted building with the permission of the Municipality in the place where the old tenanted building was situated. Going by the impugned order, it is seen that the revision petitioner has contended that the Rent Control Court ceased to have power and it is for the Munsiff’s Court to execute the order passed by the Rent Control Court. RCR No.363/2017 -4- According to the learned counsel appearing for the revision petitioner, the expression 'court' in second proviso to Section 11(4)(iv) of the Act means and includes the Munsiff's Court and not the Rent Control Court. Therefore, the Munsiff's Court alone has the jurisdiction and power to grant permission to the tenants to re-construct the building. The Appellate Authority has considered the said contention and rejected. 8. The question to be considered in this Revision is whether the Rent Control Court has jurisdiction and power to entertain an application filed under the second proviso to Section 11(4)(iv) of the Act and issue necessary directions to the landlord to see that the tenant is put back in possession of the tenanted building. On a reading of the second proviso to Section 11(4)(iv) of the Act, it could be seen that the aforesaid provision confers power to the 'Court' to issue directions regarding the re-construction of the building, on failure of compliance by the landlord. In the first proviso, the expression ‘Rent Control Court’ is used; but in the second proviso, it seems reduced to ‘Court’. We are of the opinion that the expression 'Court' in the second proviso is also intended to mean the Rent Control Court and not Munsiff's Court. The word ‘Court’ used in the second proviso cannot be interpreted in isolation and both provisos must be read and interpreted together harmoniously with the principal section. So, on a combined reading of the principal section with both provisos, it is well discernible that the Rent Control Court itself is empowered to entertain RCR No.363/2017 -5- applications and issue directions to give effect to the order in any manner the Rent Control Court deems fit and in appropriate cases to put the tenant back in possession. In the above view, the courts below are justified in finding that the Rent Control Court is the proper court empowered to pass such an order granting permission to reconstruct the building by the tenant himself. 9. Another question to be considered is whether the Rent Control Court has power to pass an order granting permission to the tenant to re-construct the building. This Court is of the view that by employing the wording "the Court shall have power to issue directions to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession", the Rent Control Court has been given very wide discretionary power to issue the necessary orders to see that the tenant is put back in possession of the new building and the expression "any manner" includes power to grant permission to the tenant to re-construct the tenanted building in accordance with the approved permit and plan and to occupy the same. But such permission can be granted as last resort, where all other measures are exhausted. The above view is supported by the decision of this Court in _**Karthiyani Amma v. Lakshmi Amma**_ (1992 (1) KLT 138). 10. In the above view, the courts below are fully justified in granting permission to re-construct the tenanted room in the building where the old tenanted building was originally situated, when the RCR No.363/2017 -6- landlord failed to re-construct the building within the time specified by the Rent Control Court in the order passed under Section 11(4)(iv) of the Act. 11. Further, it is contended by the learned counsel for the revision petitioner that the re-construction of the proposed building became impossible as per the present Building Rules. But no materials had been produced before the Rent Control Court or the appellate authority to substantiate the said contention that the re-construction became impossible due to change in the Building Rules. In the absence of any materials in this regard, the courts below are justified in rejecting the said contention. With abundant caution, the Rent Control Court has made it clear that if any modification is required in the permit and plan to comply with the amendment, if any, in the Building Rules, the same can be done by the Municipality and a further direction was issued to communicate a copy of the order to the Kannur Municipality also. Further, we notice that with abundant caution, the courts below have concurrently held that the respondent/tenant is entitled to re-construct the building as per the plan and permit issued to the landlord by the Municipality and the cost of construction can be adjusted by the tenant from the rent of the building which accrues later. It is needless to say, the building after re-construction would belong to the appellant/landlord. We find that the appellate authority has considered all the legal issues and answered the same correctly. We do not find any reason to interfere with the orders passed by the RCR No.363/2017 -7- courts below. Accordingly, this RCR is dismissed. However, it is made clear that the Municipality is at liberty to take a decision in accordance with the present Building Rules. **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_