Kamarudheen v. Laila

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 29TH DAY OF MAY 2017/8TH JYAISHTA, 1939 ## **RCRev..No. 122 of 2011 (A)** AGAINST THE JUDGMENT IN RCA NO.3/2008 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDL.DISTRICT COURT),PALAKKAD DATED 09-02-2011 AGAINST THE ORDER IN RCP NO.10/1995 OF THE RENT CONTROL COURT (MUNSIFF'S COURT), CHITTUR DATED 10-10-2007. ## REVISION PETITIONER/APPELLANT/RESPONDENT: KAMARUDHEEN, S/O. SHAIK HASSAN SAHIB, HOSPITAL JUNCTION, CHITTOOR TOWN, CHITTOOR VILLAGE, CHITTOOR TALUK. BY ADVS.SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR ## RESPONDENT/RESPONDENT/PETITIONER: LAILA, D/O. C.V.CHANTH MUHAMMED, THAMARACHIRA, COURT ROAD, CHITTUR VILLAGE, CHITTUR TALUK, REPRESENTED BY POWER OF ATTORNEY, SANTH MUHAMMED, S/O. VELLAPPA RAWTHER, KACHERIMEDU, CHITTOOR TALUK, CHITTOOR VILLAGE. BY ADV. SRI.D.KRISHNA PRASAD BY ADV. SMT.S.SANTHY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.05.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.707/2011 IN R.C.R.NO.122/2011** CLOSED 29/05/2017 SD/- **K.HARILAL, JUDGE** SD/- **P.SOMARAJAN, JUDGE** //TRUE COPY// AHZ/ ## **K. Harilal & P. Somarajan, JJ.** **---------------------------------------------------R.C.R. No.122 of 2011 (A)** **---------------------------------------------------Dated this the 29[th] day of May, 2017** ## **O R D E R** ## **Harilal, J.** The petitioner is the tenant against whom an order of eviction was passed concurrently under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), by the courts below. The legality and propriety of the concurrent findings of the courts below under Section 11(4)(ii) of the Act are challenged in this Revision Petition. 2. It is the case of the landlord that the tenant had put up a shed covered with asbestos sheet and also a latrine in the backyard open space of the tenanted premises, having an extent of four cents. So also, a well was dug in the open space. The said construction was made without the consent of the landlord and it reduced the value and utility of the tenanted premises, materially and permanently. Therefore, the landlord is entitled to get an order of eviction under Section 11(4)(ii) of the Act. ## **R.C.R. No.122 of 2011 (A)** :: 2 :: 3. The tenant resisted the said allegation against him contending that the said construction was made by him with the consent of the previous landlord. It is also contended that there was no landlord-tenant relationship, though, later, the said contention was not pressed into service. 4. The Rent Control Court allowed the petition on a finding that the construction was made unauthorisedly without the consent of either the previous landlord or the present landlord and the said construction had reduced the value and utility of the tenanted premises, materially and permanently. In appeal, the Appellate Authority also concurred with the aforesaid finding and dismissed the appeal. 5. Heard the learned counsel for the landlord and the learned counsel for the tenant. 6. Learned counsel for the tenant advanced arguments, contending that the construction was made, before the transfer of ## **R.C.R. No.122 of 2011 (A)** :: 3 :: the petition schedule building, to the present landlord, by way of sale. Therefore, the present landlord has no right to seek an order of eviction under Section 11(4)(ii) of the Act. Secondly, it is contended that even if, it is found that the construction was made without the consent of the previous landlord, the construction has not reduced the value or utility of the tenanted premises, materially and permanently. 7. Per contra, the learned counsel appearing for the landlord advanced arguments, justifying the finding of the courts below that the present landlord has the right to proceed with the eviction proceedings under Section 11(4)(ii) of the Act in continuation of the notice issued by the previous landlord alleging unauthorised construction and directing the tenant to remove the same. It is also pointed out that even if such a notice was not issued by the previous landlord, since the act of unauthorised construction has reduced the value and utility of the tenanted premises materially and permanently, the cause of action arose from the said act would continue as such, and the transferee landlord can also sue against ## **R.C.R. No.122 of 2011 (A)** :: 4 :: the tenant seeking an order of eviction under Section 11(4)(ii) of the Act. 8. In view of the arguments made by the learned counsel for the petitioner/tenant, the first question to be considered is, whether an order of eviction can be passed under Section 11(4)(ii) of the Act, if the alleged construction causing reduction of value and utility of the building materially and permanently was made earlier, without consent of the previous landlord. 9. According to Section 11(4)(ii) of the Act, a landlord may apply to the Rent Control Court seeking an order of eviction if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently. On an analysis of the aforesaid provision, the sole question is whether the tenant has used the building in the manner specified under the said Section. The statutory insistence is that the tenant should have used the building in such a manner as specified in the Section, but does not insist anything about the time of such a usage. We find that if once the ## **R.C.R. No.122 of 2011 (A)** :: 5 :: tenant had used the building in such a manner as to destroy or reduce its value or utility materially and permanently, the said act would give rise to a cause of action to seek an order of eviction under Section 11(4)(ii) of the Act, and that cause of action would continue as such, notwithstanding the subsequent transfer of property to another person, as the consequences that arise from the destruction or reduction of value or utility of the building are permanent and material. The destruction or reduction of value and utility was caused to the building and it was material and permanent. So the cause of action will not be abated as the present landlord would step into the shoes of the previous landlord, with the right to sue against the tenant for that destruction or reduction, as the case may be. Therefore, we are of the opinion that an order of eviction under Section 11(4)(ii) can be passed on the Rent Control Petition filed by the present landlord, even if the unauthorised construction, causing reduction of the value and utility of the building was made, without consent of the previous landlord, at the time when the building was owned by him. ## **R.C.R. No.122 of 2011 (A)** :: 6 :: 10. In the instant case, the tenant himself admitted that he had made the alleged construction without the consent of the previous landlord and he had issued notice requiring him to remove the said unauthorised construction. The nature of construction is also admitted and the same is evidenced by Ext.C1 commission report. It is also admitted that even though he had received the notice issued by the previous landlord, no reply had been sent to him denying unauthorised construction, alleged against him. The unauthorised construction includes a shed covered by asbestos sheet, a latrine and a well. It also stands undisputed that the petition schedule building and the unauthorised construction were made in the property having an extent of four cents only, situated in the heart of Chittoor town. The tenant has no case that he has not used the unauthorised construction or he has not been using the said unauthorised construction at the time of filing the Rent Control Petition. 11. In the above context, the decision of this court in **Michael** v. **Paramara Group Devaswom (2006(1) KLT 979)** and the decision ## **R.C.R. No.122 of 2011 (A)** :: 7 :: ## of the Apex Court in **Vipin Kumar** v. **Roshan Lal Anand and others** **(JT 1993(3) SC 171)** assume relevancy and significance and also would fortify the above view. In the aforesaid decision, the court held that constructions and additions made by the tenant encroaching into open space will attract Section 11(4)(ii) of the Act and the constructions in open space amounts to deprivation of vacant space outside the original building and even though the value of the building has increased, so far as the landlord is concerned, it has been deprived of the vacant space outside the original building. In _**Vipin Kumar's case**_ (supra), the Apex Court held that the question whether the value and utility of the building has reduced materially and permanently must be considered in the perspective of the landlord and the opinion of others has no value, even if according to others the value has increased. 12. In the instant case, the courts below meticulously appreciated the evidence on record falling under Section 11(4)(ii) of the Act and rightly arrived at a finding that the unauthorised construction reduced the value or utility of the tenanted premises ## **R.C.R. No.122 of 2011 (A)** :: 8 :: materially and permanently. We do not find any reason to interfere with the concurrent findings of the courts below. 13. The learned counsel for the revision petitioner seeks time to vacate the petition schedule building but the learned counsel for the respondent opposed the same and submits that a reasonable time alone can be granted to vacate the premises. Having regard to the entire facts and circumstances of the case and the submissions of the Bar, we are inclined to grant eight months' time from today to vacate the petition schedule building on the following conditions: (1) the Revision petitioner shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that he would peacefully surrender the petition schedule building within eight months from today; and (2) the Revision petitioner shall pay the entire arrears of rent, if any, within two weeks ## **R.C.R. No.122 of 2011 (A)** :: 9 :: from the receipt of this order and shall continue to pay the rent without default. (3) In the event of failure of any of the conditions, the time granted to vacate the petition schedule building would stand automatically repealed and the landlord is at liberty to proceed with the Execution proceedings. The Rent Control Revision is dismissed accordingly. **K. Harilal Judge** **P. Somarajan Judge** ahz/