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1991 DIGILAW 531 (KER)

George v. Thressia

1991-12-11

SHAMSUDDIN, THOMAS

body1991
Judgment :- Shamsuddin, J. This is a case, where a landlord indulges in dilatory tactics to defeat a tenant' valid right to get back accommodation as provided in an order of eviction for the purpos of reconstruction of the building under S.11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act' for short). 2. To appreciate the relief sought for by the tenant in the above C.M.P., it is necessary to briefly narrate the history of the case: The revision petitioner filed R.C.P. No. 85 of 1970 in the Rent Control Court, Ernakulam. The petition was dismissed by the Rent Control Court on 16-3-1973. On appeal, the appellate Authority allowed the appeal by order dated 5-11-74 and ordered eviction for reconstruction of the building under S.11(4)(iv) of the Act. The order also gave first option to have the reconstructed building allotted to the tenant with liability to pay fair rent as provided in the third Proviso to S.11(4)(iv) of the Act. A revision filed by the tenant was dismissed. A further revision to this court also ended in dismissal. The petitioner obtained possession of the building on 21-9-1976 and demolished the building. However, he did not reconstruct the building within six months in accordance with the directions contained in the order of eviction. In the circumstances, the tenant filed I.AI No. 428 of 1978 before the Rent Control Court for a direction to the respondent to reconstruct the building. By order dated 9-10-1980, the Rent Control Court gave a direction to reconstruct the building within six months. An appeal was filed by the landlord against the said order in R.C.A. No. 25 of 1981 which was dismissed. R.C.R.P. No. 62 of 1982 filed by the landlord challenging the order in R.C.A. No. 25 of 1981 also ended in dismissal. Inspite of this, respondent did not take any steps to reconstruct the building. At the instance of the tenant, in LA. No. 3504 of 1984, a further direction for reconstruction of the building within six months was given to the landlord by the Rent Control Court. Still, the landlord did not comply with the order. Thereupon, the tenant moved I. A.No. 5814 of 1986 before the Rent Control Court for a direction to the landlord to reconstruct the building and to pay compensation to him, besides imposition of a fine. Still, the landlord did not comply with the order. Thereupon, the tenant moved I. A.No. 5814 of 1986 before the Rent Control Court for a direction to the landlord to reconstruct the building and to pay compensation to him, besides imposition of a fine. The Rent Control Court by order dated 17-10-1989 directed the landlord to reconstruct the building and pay a fine of Rs. 500/-. That order was challenged in R.C.A. No. 20 of 1990, which ended in dismissal, against which C.R.P. No. 2576 of 1990 was filed before this court. The main ground alleged by the landlord was that the Municipality did not renew the licence and therefore he was not able to start construction. Finding that there was no bonafides in this contention, this court by order dated 28-2-1990 again directed the respondent to reconstruct the building within six months. It can be seen from the said order that the counsel for the Municipality submitted that the Municipality had no objection to the proposed construction. This Court passed an order on 4-3-1991 stating that there is no impediment for constructing the building as per the sanctioned plan. Ultimately, this court disposed of C.R.P. No. 2576/90 and 115/91 with the following observations: "Counsel for the landlord submits that a copy of the plan as sanctioned by the Municipality has been furnished to the tenant. We are glad to note the submission of counsel that construction activity has already been commenced. Recording of these submissions, would be a happy finale to the long pending proceedings. The matter is closed." 3. It is obvious from the above observations that this court was led to believe that landlord would start reconstruction immediately after the disposal of the revision petitions. But what we find is that at his instance, a stranger filed Original Petition No. 5227 of 1991 before this court alleging that the plan for reconstruction was passed in violation of the Building Rules and seeking to quash the plan and licence. An interim stay of reconstruction was obtained without impleading the tenant. However, the tenant got himself impleaded as additional 3rd respondent in the Original Petition. The Original Petition was dismissed with costs on 17-6-1991 with the following observations: "I do not think that there is any merit in the present petition. An interim stay of reconstruction was obtained without impleading the tenant. However, the tenant got himself impleaded as additional 3rd respondent in the Original Petition. The Original Petition was dismissed with costs on 17-6-1991 with the following observations: "I do not think that there is any merit in the present petition. So also I am satisfied that this petition was filed only in collusion with the 2nd respondent for the purpose of enabling him to effectively overcome the directions of the competent courts for reconstruction and giving the option to the tenant. For that reason alone, this court will be justified in refusing to exercise the extraordinary jurisdiction. The petitioner in the circumstances is liable for costs to respondents 1 and 3." 4. After the dismissal of the Original Petition, CM.P.No. 2910 of 1991 was filed by the tenant seeking to permit him to reconstruct the building and adjust the cost in future rent. In the said C.M.P., the landlord filed an affidavit on 16-10-1991 undertaking to complete the construction as per the plan within 11/2 months. This undertaking was also not complied with. From the facts narrated above, it would be clear that the landlord has been playing hide and seek after getting an order for eviction of the tenant and demolishing the building occupied by the tenant. 5. The question to be considered is whether the court has power to permit the tenant to reconstruct when the court is satisfied that the landlord is not prepared to reconstruct after demolishing the existing building. Our answer to this question is in the affirmative. 6. The second Proviso to S.11(4)(iv) reads as follows: "Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction". We feel that the expression "to give effect to the order in any manner the Court deems fit" is wide enough to cover that power. 7. We feel that the expression "to give effect to the order in any manner the Court deems fit" is wide enough to cover that power. 7. It is a well known principle of Interpretation of Statutes that where a statute confers powers or duties, the court will adopt an interpretation to take in all incidental powers to give full effect to the exercise of such powers or duties. Maxwell on Interpretation of Statutes, 11th Edition, Page 350 states: "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution." Craies on Statute Law enunciates the same principle at page 111 of VI Edition states: "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail to be carried out. Thus, in Cookson v. tee (1854) 23 Q. Ch.473,475, Lord Cranworth L.C.) a private Act vested certain lands in trustees for the purpose of enabling them to sell the lands for building purposes, but the Act contained no express power to expend any portion of the purchase moneys in setting out the lands or in making roads. In these circumstances the court held that, having regard to the object of the Act, namely such power ought to be implied." In Sutherland on Statutory Construction, III Edition, Volume 3, S.5402, page 19, the learned author observes as follows: "Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication (United States v. Sischo, 262 U.S.165, 67 L.Ed.92, 43 Sup. Ct.511 (1923) That which is clearly implied is as much a part of a law as that which is expressed. (State v. Nestos, 48 N.D.894, 187 N.W.233, 235 (1922). In his book on Statutory Construction, at page 267, Crawford gives reasons for such implications: "The reason for allowing the court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. (State v. Nestos, 48 N.D.894, 187 N.W.233, 235 (1922). In his book on Statutory Construction, at page 267, Crawford gives reasons for such implications: "The reason for allowing the court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission. Consequently, these minor details are considered as if included in the general terms of the enactment as well as in the purpose sought to be achieved by the legislature, and therefore, are regarded as actually intended by the legislature." Learned author observed that implication and intendments arising from the language of a statute are as such part of it as if they have been expressed. Learned author cited a catena of decisions in support of this observation. 8. In Radha Textiles v. Kora Easo (1980 K.L.T. 235), similar question arose before Chandrasekhara Menon, J. It was a case where eviction, was ordered on an application filed by a landlord on the ground of need for reconstruction. Delivery of possession was effected and building was reconstructed. At the instance of the evicted tenant, the Rent Control Court made a direction to the applicant to put the tenant in possession of an area of 250 square feet at the south western corner in the ground floor of the reconstructed building with the amenity of a corridor of 2 feet in width for giving access to the room from the northern K.K.Road. The applicant was given the right to recover possession through court in which case the tenant himself was allowed to construct a corridor of the nature specified above at his own cost and under the supervision of a Commissioner after obtaining necessary sanction from the Municipality. It was contended in that case that once an order for eviction was passed, the court became functus officio and the above directions made by the Rent Control Court was without jurisdiction. In the context of the above contention, His Lordship considered the rules of interpretation and scheme of the Act in the light of the object for which the provision is enacted. In the context of the above contention, His Lordship considered the rules of interpretation and scheme of the Act in the light of the object for which the provision is enacted. Dismissing the contentions raised on behalf of the landlord, the court observed: "Provisos in the provision are indicative of the fact that the Rent Control Court does not become functus officio as such if it passes an order for eviction. Though there is no specific provisions which says that after the order for eviction under the particular clause the tenant can make an application to the Rent Control Court, if the landlord refuses to give the first option to the tenant who was evicted for the reconstruction of the building, I think it is implied that the court would have the power to entertain such application and pass orders therein. The order passed in such cases being under S.11(4)(iv) whichgives the tenant the first option to have the reconstructed building allotted to him with liability to its fair rent, the power to pass such order should necessarily carry with it the necessary incidental power to make the landlord to confirm to such order". According to us, the law has been correctly stated by the learned judge. 9. In Venkatesam v. Krishnaiah (ILR 1968 A.P. 706) Andhra Pradesh High Court considered the scope of S.11(4) of the Andhra Pradesh Buildings Lease (Rent and Eviction Control) Act. The court held that the power to pass an order carries with it the necessary and incidental power to implement it. 10. Similarly, in Narayana v. Desika (AIR 1933 Madras 689) a Division Bench of the Madras High Court said that the court making an order under S.78 of the Madras Hindu Religious Endowment Act has jurisdiction to do all the acts necessary for execution of such order. 11. In C.R.P. No. 885 of 1972, a Division Bench of this court had to consider the scope of S.11(4)(iv). In the course of the judgment, the court observed: "The jurisdiction to enforce the conditions on which the Rent Controller passed the order under S.11(4)(iv) is impiiedly vested in him. 11. In C.R.P. No. 885 of 1972, a Division Bench of this court had to consider the scope of S.11(4)(iv). In the course of the judgment, the court observed: "The jurisdiction to enforce the conditions on which the Rent Controller passed the order under S.11(4)(iv) is impiiedly vested in him. If the accommodation controller's jurisdiction is thus excluded with respect to a building reconstructed in pursuance of an order under S.11(4)(iv) and if we are to hold that the Rent Controller has also no jurisdiction to enforce the conditions imposed by him at the time of ordering the eviction, the tenant would be constrained to institute a suit for declaration of his rights and to recover possession of the accommodation. The very object of the Act is to ensure speedy settlement of disputes between the landlord and the tenant, and that will be defeated if the tenant is driven to protracted litigation in a civil court to get back the accommodation in the reconstructed building after having been evicted on the specific condition that he would be but back into possession as soon as the reconstruction is over." 12. In Ratnakarashenoy v. The Rent Controller & others (1989 (2) KLT 690 =1989 (2) K.LJ. 473) the amplitude of the power of the court under second proviso to S.11(4)(iv) came for consideration before one of us (Thomas, J). In the course of the judgment, the court observed: "The Rent Control Court has wide powers to issue directions to contain the strategy of the landlord stalling the tenant's right of re-entry. Such powers are conferred by the provisos and it is the duty of the Rent Control Court to use such powers inappropriate cases and prevent mischief being perpetrated. Such powers include even the power to allow the affected tenant to reconstruct the building at his cost, if the landlord declines to reconstruct the building after pulling it down. The second proviso does not contain any restriction or limitation for the Rent Control Court to issue any direction in appropriate cases." 13. We affirm the said principle of law and hold that wide powers envisaged in the provision include powers even to permit the affected tenant, in an appropriate case, to carry out the reconstruction if landlord persists in his unreasonable refusal to complete reconstruction. We affirm the said principle of law and hold that wide powers envisaged in the provision include powers even to permit the affected tenant, in an appropriate case, to carry out the reconstruction if landlord persists in his unreasonable refusal to complete reconstruction. Of course, the court, would then indicate the mode of adjustment of the cost incurred by the tenant for such reconstruction. 14. The foregoing discussion would show that the court has ample power to pass incidental orders to give effect to the order passed by it under S.11(4)(iv). There was a specific direction in the order of eviction to reconstruct the building within six months and to give the tenant the first option to get the room allotted to him. In the instant case, repeated orders were passed by the court directing the landlord to reconstruct the building. The landlord after getting delivery of the building and demolishing it, refused to comply with the above direction under one pretext or other. The 2nd proviso gives wide powers to the court to give effect to its orders. Accordingly, we allow the petition and permit the tenant to carry on the construction of the building in the disputed premises according to the licence and plan approved by the Municipality, Tripunithura. The amount spent by the tenant will be a charge on the building constructed and he will be entitled to adjust the amount towards future rent. The tenant will be entitled to his costs, which we fix at Rs.1000/-.