T.K. George v. K.S. Ramakrishnan Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930** **WP(C).No. 6833 of 2005(L)** **------------------------------------RCR.1/2003 OF ADDL. DISTRICT COURT-II, MAVELIKKARA, RCP.1/1987 OF MUNSIFF COURT,CHENGANNUR. (EP 10/1995)** **....................** ## **PETITIONER/ CR. PETITIONER:** **--------------------------------------------** **T.K.GEORGE, VANKARIMPIL, THITTAMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK.** **BY ADV. SRI.K.K.JOHN, SRI.BROSE JOSEPH NEELIYARA, DR.ABRAHAM P.MEACHINKARA.** **RESPONDENTS:** **-----------------------** **1. K.S.RAMAKRISHNAN PILLAI, PUTHENPURACKALAYA KOCHUVEETTIL, PERISSERY MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK.** ## **2. KUTTAN PILLAI MURALEEDHARAN NAIR -DO-.** ## **3. MUNSIFF'S COURT, CHENGANNUR.** **4. THE ADDL.ASST.CONTROL APPELLATE AUTHORITY, MAVELIKKARA.** **BY ADV. SRI.P.R.VENKETESH, SMT.LATHA GIRI, SRI.A.K.HARIDAS, SRI.L.RAJESH NARAYAN, SRI.MANURAJ. K.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON 08/04/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.6833/2005-L:** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE ORDER DTD. 12/08/2003.** **EXT.P.2: COPY OF THE ORDER DIRECTING THE LANDLORD TO GIVE POSSESSION OF THE BUILDING TO R.1.** ## **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **prv.** ## **C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.6833 of 2005-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of April, 2008.** ## **JUDGMENT** ## T.R. Ramachandran Nair, J. The landlord in a Rent Control Petition is the petitioner herein. He is the petitioner in R.C.P.No.1 of 1987 of the Rent Control Court, Chenganur. Eviction was finally ordered by the Rent Control Appellate Authority on the ground of reconstruction of the building under Section 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act, 1965. C.R.P.No.276/1992 filed by the tenants, was dismissed as per order dated 31.1.1992 and the tenants were granted four months' time to vacate the building. 2. Subsequent disputes arose at the stage of execution of the order of eviction. Alleging that the tenants have not surrendered the building, the landlord filed E.P.No.22/1992 before the Munsiff's Court, Chengannur and the building was delivered through court on 17.6.1992. Subsequently, the building was demolished and reconstruction was effected. The present proceedings arose since, as provided under the Act, the tenant was not allowed to exercise his option by the landlord and they was not re-inducted. 3. The tenant thereafter filed an execution petition before the WPC 6833/2005 -2- Munsiff's Court, Chengannur, which was disposed of by Ext.P1 disallowing his claim. The execution court found against him on the ground that as the tenant has not surrendered vacant possession of the building within the time allowed by the order of eviction, he is not entitled to exercise his option for a shop room in the reconstructed building. The District Court, in revision reversed the same against which the landlord has filed the present writ petition. 4. We heard Shri K.K. John, learned counsel for the petitioner and Shri A.K. Haridas, learned counsel for the respondents. 5. Learned counsel for the petitioner submitted that the view taken by the District Court is unjustified on the facts of the case. The tenant was obliged to vacate the building within four months from 31.1.1992, the date of the order in C.R.P.No.276/1002. Delivery was ordered through court which was effected on 17.6.1992. It is therefore submitted that as the tenant had not surrendered possession of the building within the time granted by this court, he is disentitled to exercise the option to get a room in the reconstructed building. Reliance was placed on the dictum laid down by the Apex Court in **Ram Nath & another v. M/s. Ram Nath Chhittar Mal** (AIR 1961 SC 104). 6. Learned counsel for the respondent submitted that it was a case WPC 6833/2005 -3- where the landlord, in spite of the request of the tenant, did not take possession of the building and he wanted delivery through court which aspect has been found in favour of the tenant by the District Court. It is also submitted that going by the decisions of this court in **George v.** Narayani (1998 (1) KLT 239) which is confirmed in **Thankamma Mathew v. Ravi Mathew** (2005 (4) KLT 859), the right of option provided for the tenant under the Act cannot be denied merely because the delivery of the building was taken through the court. 7. A reading of Ext.P1 order passed by the Munsiff shows that the learned Munsiff ordered against the tenants following the dictum laid down by the Apex Court in **Ram Nath's case** (AIR 1961 SC 104). The District Judge considered the matter elaborately. The evidence of P.W.1 as well as Exts.A3 and A4 are relied on to hold that the tenant was always ready and willing to vacate the premises and the articles have already been removed as early as on 14.5.1992 and when the amin went for effecting delivery, the building was remaining vacant. In that view of the matter, the learned District Judge concluded that it cannot be said that there was any laches on the part of the tenant in surrendering the building. Reliance was placed on the decision of this court in **George's case** (1998 (1) KLT 239) to hold that WPC 6833/2005 -4- the right of the tenant to have option under the third proviso to Section 11 (4)(iv) is not lost merely because he has not voluntarily surrendered the building. 8. Learned counsel for the petitioner heavily relied upon the dictum laid down by “Ram Nath's case” (supra) by the Apex Court. But a reading of the judgment shows that the provisions of Delhi & Ajmer Rent Control Act (38 of 1952) and the Kerala Act are different. Therein, the Apex Court was considering whether the provisions of Sections 15(2) and 15(3) of the Act were complied with by the tenant. In that case, a compromise decree was passed. Going by Section 15(2), the tenant has to deliver possession on or before the date specified in the decree/order which compels the landlord to provide occupation to the tenant and going by Section 15(3) also, there is an obligation on the tenant to deliver possession on or before the date specified in the decree or order. It is in that view of the matter that the Apex Court held that the tenant who failed to surrender the building within the specified date, lost his right to get occupation in the reconstructed building. This is clear from para 5 of the judgment at page 106. The relevant portion of the same is extracted below: “As the respondent did not deliver possession to the appellants on or before the dates specified in the decree the provisions of S.15 contained in sub-sect.(3) of that Act were not available to them and WPC 6833/2005 -5- they were not entitled to be put into possession as prayed by them.” We find that the situation herein is totally different. There is no similar provision under the Kerala Act and specifically in Section 11(4)(iv). In fact, the legal question was examined by a learned Single Judge of this court in **George's case** (supra). It was held that the Act does not provide for any loss of right in the tenant merely because he did not voluntarily surrender the building. This position was upheld by a Division Bench in the later decision in **Thankamma Mathew's case (** supra). After analysing the position, their Lordships held in para 4 as follows: “Even the expression 'the tenant who was evicted' does not indicate a voluntary surrender and suggests an involuntary surrender in the wake of an order of eviction. The fact that the tenant had surrendered possession only because of execution proceedings taken against him to execute the order of eviction passed under S.11(4)(iv) cannot in any way take him out of the sweep of the expression 'the tenant who was evicted' under the third proviso to S.11(4)(iv). 9. In the light of the above legal position, we find that the argument raised by the learned counsel for the petitioner that the tenant has lost his right to have the option to get a room in the reconstructed building, is not correct. We agree with the view expressed by the learned District Judge on that aspect. 10. The learned District Judge has upheld the right of the tenant to WPC 6833/2005 -6- get possession of the room in the reconstructed building on payment of fair rent. Fair rent has been fixed at Rs.6/- per sq. ft. which will fetch a monthly rent of Rs.890/-. The plinth area of the room is 118.3 sq. ft. and the verandah is having a plinth area of 29.9 sq.ft. Thus, the total plinth area will be 148.2 sq. ft. Learned counsel for the tenants fairly submitted that his clients are prepared to pay monthly rent at Rs.10/- per sq. ft. 11. Therefore, we modify the order passed by the District Judge to the effect that monthly rent payable by the tenant will be at Rs.10/- per sq. ft. apart from the electricity and water charges as ordered by the District Judge. In all other respects, the order passed by the District Judge is upheld. No other question arises. Hence, the writ petition is dismissed subject to the above modification.` ## **(C.N. Ramachandran Nair, Judge.)** ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/** WPC 6833/2005 -7- ## C.N. Ramachandran Nair & ## T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - O.P.No.6833 of 2005 - - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT April, 2008.