Renganatha Pai v. Director General Of Police — 1994 DIGILAW 279 (KER)

JUDGMENT P.A. Mohammed, J. 1. The substantial prayer in this writ petition filed by a residential tenant is for a direction to respondents 1 and 2 to afford adequate police protection to the petitioner and his family for tiling the collapsed roof and repairing two side-walls. Respondents 1 and 2 are the police officers and third respondent is the landlord of the building. Additional fourth respondent is the Accommodation Controller (Tahsildar, Cochin). Even though this is mainly a police protection case, the rights of the parties under the provisions of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Rent Control Act') and the Transfer of Property Act (for short 'the T.P. Act') are coming up for adjudication in this case. 2. The circumstances which compelled the petitioner to file this writ petition can be summarised thus?: The petitioner is residing with his wife and children - five daughters and one son, as a tenant under the third respondent in a tiny line-building obtained on a rental arrangement. The petitioner was paying the rent at the rate of Rs. 10.25 per month. However, the landlord filed a petition for eviction before the Rent Control Court, Cochin on the ground of arrears of rent. During the pendency of the said petition, the petitioner had paid the entire arrears of rent. Thereupon the case was compromised as per a joint statement. Ext. P1 is a copy of the order recording the statement, pursuant to which R.C.A.No.86/87 was dismissed. Thereafter, the petitioner was regularly paying the rent, but the landlord refrained from issuing receipt for such payments. The landlord did not attend to the periodical maintenance and necessary repairs of the building for the last so many years. Because of the continued neglect by the landlord to effect the periodical maintenance the building was in a bad shape and condition. Therefore, the petitioner filed a petition before the Accommodation Controller under S.17(2) of the Rent Control Act seeking a direction to the landlord for maintenance and necessary repairs. While so, on 14-1-1989 at about 5.30 p.m. the roof of the house was collapsed and front door and two windows were damaged. In that unfortunate incident the petitioner's grand daughter got injured. While so, on 14-1-1989 at about 5.30 p.m. the roof of the house was collapsed and front door and two windows were damaged. In that unfortunate incident the petitioner's grand daughter got injured. To relieve from the misery caused due to the aforesaid calamity the petitioner rushed to the landlord, who is staying in the neighbourhood requesting him to allow the petitioner to get the collapsed roof and walls repaired, at the cost of the tenant and to restore the building to its original shape. But no permission was granted. On 15-1-1994 the petitioner received a communication from the Accommodation Controller that no order under S.17(2) of the Rent Control Act can be passed on the application filed by the tenant inasmuch as the building was so old which requires re-construction. On 16-1-1994 the petitioner requested the second respondent, Sub Inspector of Police, to allow him to repair the collapsed roof of the building. Though the police officers visited the place there was no response in favour of the petitioner. Then he filed Ext. P3 petition before the Revenue Divisional Officer. Though this petition was forwarded to the police officer for investigation no tangible result was followed there also. The petitioner under this pitiable situation just fastened two or three plastic sheets in the place of collapsed roof of the building. The petitioner and his family members are living in complete misery and destitution. It is in this background the petitioner came before this court with the present writ petition. 3. Inasmuch as the petition filed under S.17(2) of the Rent Control Act before the Accommodation Controller was dismissed on 8-12-1993 the petitioner has sought to quash the said order in the present proceedings. It may be recalled that the said order was passed on a petition filed prior to the incident on 14-1-1994. However, the petitioner tiled C.M.P.No.9487 of 1994 to amend the writ petition seeking to incorporate an additional prayer in that behalf. That petition has been allowed. 4. The contentions raised by the third respondent are as follows: The building in question is in a dilapidated condition. When the petitioner proposed to re-construct the building, he filed O.S.No.352/83 before the Munsiff s Court, Cochin and obtained a decree for permanent prohibitory injunction. Ext. R3(A) dated 8-7-85 is the decree. The petition filed under S.17(2) was dismissed by the Accommodation Controller as per Ext. When the petitioner proposed to re-construct the building, he filed O.S.No.352/83 before the Munsiff s Court, Cochin and obtained a decree for permanent prohibitory injunction. Ext. R3(A) dated 8-7-85 is the decree. The petition filed under S.17(2) was dismissed by the Accommodation Controller as per Ext. R3(C) on the ground that the building is beyond repairs. When the building was collapsed on 14-1-1994 he filed O.S.No.47 of 1994 against the Assistant Commissioner of Police and the petitioner for a permanent prohibitory injunction restraining the police from giving assistance to the petitioner for re-construction of the building and has obtained an interim injunction in I.A.No.183/94 in the said suit on 20th January 1994. 5. The essence of the contention of the landlord is that the building is in a dilapidated condition, which requires re-construction. Even after the collapse of the roof and two side walls the tenant continued to stay there undergoing all miseries. The landlord approached the civil court and obtained decrees against the tenant from making re-construction. It is after the collapse of the roof on 14-1-1994 the landlord filed O.S.47/94 and obtained interim injunction against the police from affording protection to the tenant for re-construction of the building. It is pertinent to note here that the landlord in all these years did not approach the Rent Control Court for eviction of the tenant on the ground that the building requires reconstruction. That is the procedure established by law for evicting the tenant. He did not move the Rent Control Court obviously for the reason that in case eviction is allowed on the ground that the building requires reconstruction under Cl.(iv) of sub-section (4) of S.11 the tenant will have the first option to have the re-constructed building allotted to him with liability to pay its fair rent as provided in the third proviso to the said clause. It is obviously to defeat that right of the tenant, the landlord is refraining from moving the Rent Control Court for eviction. However, the landlord did not give satisfactory explanation for not approaching the Rent Control Court even though it was clearly established that the building requires reconstruction. 6. Before examining the question whether the petitioner is entitled to get police protection for effecting the repairs or reconstruction of the building in question, it is necessary to elicit the nature of the right the petitioner is having in the present case. 6. Before examining the question whether the petitioner is entitled to get police protection for effecting the repairs or reconstruction of the building in question, it is necessary to elicit the nature of the right the petitioner is having in the present case. Admittedly he is a tenant under the provisions of the Rent Control Act and he can be evicted from the building only in accordance with the provisions of the Rent Control Act. The cause of action of this proceeding is the incident which took place on 14-1-1994. It was an unfortunate event which put the family of the petitioner in perpetual misery and despair. The roof of the building was collapsed and two side walls crumbled. The fourth respondent Accommodation Controller in his report dated 15-2-1994 submitted to this court discloses thus: "The petitioner Sri. Ranganatha Pai is residing with his family in room No. 8/718 of a line building of Mattancherry village. The. other three rooms of the line building are not in existence now. The roof and two wall s of the northern and southern sides of the above room in which the petitioner is residing has been fallen down on 14-1-1994. The petitioner's two daughters and eleven month old grand daughter have been injured in the above incident." The present position of the building is described in the report as below: "The room is having 4.75 metres length and 2.55 metres width. The roof and parts of the northern and southern walls of the room have been fallen down. There are cracks in the eastern wall. There were only one door and two windows to the above room. They are also seen fallen down on 14-1-1994. The above room cannot be repaired at this stage. It has to be reconstructed." The Accommodation Controller further said that the petition filed by the tenant under S.17(2) was dismissed for the reason that the building requires re-construction and not repairs. I had an occasion to deal with the question whether the Accommodation Controller has jurisdiction to conduct the enquiry under S.17(2) of me Rent Control Act once it is found that what is required is re-construction and not repair. I had an occasion to deal with the question whether the Accommodation Controller has jurisdiction to conduct the enquiry under S.17(2) of me Rent Control Act once it is found that what is required is re-construction and not repair. That was in the decision in Chellammal v. State of Kerala & others ( 1994(1) KLJ 630 ) wherein it was held: "If the work alleged to be involved in an application filed by the tenant amounts to reconstruction or renovation, the Accommodation Controller has no jurisdiction to deal with such application. Therefore, the application by the tenant under S.17(2) shall be confined to periodical maintenance and necessary repairs." That being so, the view taken by the Accommodation Controller in dismissing the application under S.17(2) of the Rent Control Act filed by the tenant cannot be said to be wrong. Ext. R3(C) order is therefore legally valid. The challenge against Ext. R3(C) accordingly fails. 7. What this court sees from the report of the Accommodation Controller is that the roof and two side-walls of the building had been collapsed on 14-1-1994. It was not due to the act of the tenant or the landlord. As a result of the said incident material part of the building is rendered substantially unfit for the occupation for which it was let. That does not mean the tenancy has been ipso facto determined. This is a case where the principle of 'vis major' will apply. It can be said to be an'act of God'. To put it differently it may be due to 'irresistible force' which attracts the provisions contained in S.108(e) of the T.P. Act. Once this provisions is found to be applicable, then the lease is void at the option of the lessee. What the tenant did after the incident whereby the roof and the two side walls of the building collapsed, was to request the landlord to permit him to restore the building to its original position after making major repairs or renovation at his own expenses so as to make the building fit for human occupation. That means the petitioner opted to continue as a tenant and he did not want to surrender possession of the building to the landlord and thus the lease continued to be in force with all vigour. 8. That means the petitioner opted to continue as a tenant and he did not want to surrender possession of the building to the landlord and thus the lease continued to be in force with all vigour. 8. It was argued on behalf of the landlord that the lease was extinguished in this case as there was total destruction of the building. In support of this contention a decision of the Division Bench of this court in Sidhanhan v. Ramadasan ( 1984 KLT 538 ) is brought to my notice. It is no doubt true that the Division Bench in the facts of that case took the view that when there was total destruction of the building the lease was extinguished, but this view was based on the principle that a demise must have a subject matter and when the subject matter is destroyed the lease comes to an end. The Division Bench derives support from Woodfall' s Law of Landlord and Tenant, wherein it is said: "A demise must have a subject-matter, either corporeal or incorporeal. If the subject-matter is destroyed entirely, it is submitted, that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so demise continues." The underscored portion of the above quotation makes the matter clear and the Division Bench has not placed any reliance on that portion which appears to be outside the purview of the facts involved in that case. Lord Denning in Simper v. Coombs (1948) ALL E.R.306, while deciding a case where the question whether the tenancy was extinguished by the destruction of the building by bomb during the war involved, observed: "The destruction of the house by a bomb did not determine the tenancy. Lord Denning in Simper v. Coombs (1948) ALL E.R.306, while deciding a case where the question whether the tenancy was extinguished by the destruction of the building by bomb during the war involved, observed: "The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands." The decision of the Division Bench in Sidharthan's case supra was clearly distinguished in a later decision of this court in George v. Peter ( 1990(2) KLT 187 ), wherein it is held: "Even after the destruction of the superstructure of the shop room the tenant is entitled to continue in possession of the land upon which the superstructure of the shop room stood before its destruction; as part of the property demised subject to all the rights and liabilities as a tenant, since the landlord tenant relationship between the plaintiff and defendant continues to exist. The tenant may be bound to pay the rent under the lease. He may be entitled to exercise an option to give up tenancy under S.108 (e) of the T.P. Act." 9. A Division Bench of the Bombay High Court in Krishna Laxman Yadav v. Narsinghrao Vithalrao Sonawane and another ( AIR 1973 Bom. 358 ) held that "The destruction of the house did not determine the tenancy. The right of occupation is incidental to the contract of tenancy which has continued to exist between the parties". This court in George v. Varghese reported in 1976 KLT 859 held that "The destruction of the household property under the circumstances mentioned in S.108(e) by itself does not amount to a determination of the lease under S.11. In other words, even though the leasehold property is destroyed the tenancy is not automatically determined." The Andhra Pradesh High Court in Eashwar v. B. Sudershan ( AIR 1985 A.P. 4 ) held: "The landlord is under an obligation to effect repairs to the part of the building collapsed due to natural calamities. But on that account he has no right to put an end to the tenancy and the occupation of the tenant cannot be said to be unauthorised or illegal so long as he is not ejected under the provisions of the Act. But on that account he has no right to put an end to the tenancy and the occupation of the tenant cannot be said to be unauthorised or illegal so long as he is not ejected under the provisions of the Act. The putting of the roofing and the doorway without the permission of the landlord as found by the courts below, it cannot be said to be in transgression of any provision of law. At the most the appellant is forfeited to claim any expenditure he incurred in putting up the superstructure. But that does not disentitle him to continue in possession." 10. According to me, what S.108(e) contemplates is not total destruction but destruction of any material part of the property. That does not mean the property cannot be restored to its original position, either by effecting any major repair or reconstruction. In the facts of the present case it is not a total destruction of the building. What is destroyed is the roof of the building and two side walls, and rest of the building stands as such. When it is found there is no extinguishment of lease on total destruction of the building, there is no reason to say so in the case of partial destruction. Therefore, this is a case where the petitioner has lawfully exercised the option to continue to enjoy the lease. The leasehold right is-continuing and it is not extinguished by the reason of the incident which took place on 14-1-1994. 11. Before this court finally declares the above right available to the petitioner, it is necessary to examine whether the benefit of option available under S.108(e) of the T.P. Act can be availed of by a. tenant who is governed by the Rent Control Act. The benefit of option available under S.108(e) of the T.P. Act, it appears to me, is a protection available to the tenant against the unreasonable demand of the landlord to surrender possession in the case of total or partial destruction of the building. There is no provision in the Rent Control Act, which deals with the option contemplated under S.108(e) of the T.P. Act. It is also to be noticed that there is no provision in the Rent Control Act dealing with total or partial destruction of the building as a result of the act of God or irresistible force. There is no provision in the Rent Control Act, which deals with the option contemplated under S.108(e) of the T.P. Act. It is also to be noticed that there is no provision in the Rent Control Act dealing with total or partial destruction of the building as a result of the act of God or irresistible force. As pointed out above, re-construction is a ground for eviction of the building by the landlord under S.11(4)(iv). Thus the right of the tenant to continue in possession as long as he is not evicted in accordance with law, remains undisturbed. S.17(2) deals with the duty of the lessor to attend to the periodical maintenance or repairs of the building. That does not take in re-construction of the building also comes within the ambit of S.17(2), then the tenant could have continued in possession even after reconstruction as per the orders of Accommodation Controller in which case the right of eviction of the landlord on the ground of reconstruction would become otiose. That means S.17(2) is only applicable in the case of periodical maintenance and necessary repairs. This would otherwise lead to the conclusion that the right of option available to the tenant under S.108(e) of the T.P. Act is not a'double protection' but an enforceable protection uncovered by the provisions contained in the Rent Control Act. 12. The constitution bench of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal ( AIR 1979 SC 1745 ) held thus: "But in all social legislations meant for the protection of the needy, not necessarily the so-called weaker section of the society as is commonly and popularly called, there is appreciable in road on the freedom of contract and a person becomes a tenant of a landlord even against his wishes on the allotment of a particular premises to him by the authority concerned. Under S.107 of the Transfer of Property Act a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has abrogated or affected this provision. S.108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly. None of the State Rent Acts has abrogated or affected this provision. S.108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by starting certain provisions with anon obstante clause have done away with the law engrafted in S.108 of the Transfer of Property Actexcept in regard to any matter which is not provided for in the State Act either expressly or by necessary implication." (Italics supplied) The above paragraph makes it clear that even after the introduction of the Rent Control Acts certain provisions contained in the T.P. Act are unaffected. The Supreme Court as an example, pointed out that none of the State Rent Control Acts has abrogated or affected the provisions contained in S.107 of the T.P. Act, which stipulated registration of the instrument. The provision contained in S.108(e) of the T.P. Act with regard to the option available to the tenant have not been done away with by the Rent Control Act. The underscored portion in the above quoted passage from Dhanapal Cheltiar's case supra sufficiently will supply a guide for finding that the right of option available to the tenant under S.108(e) of the T.P. Act still survives. Therefore, in my view, the provisions contained in S.108(e) of the T.P. Act are still available for enforcement, notwithstanding the applicability of the Rent Control Act to the building in question. I am persuaded to take this view in consonance with the decision of the Supreme Court Mani Subrat Jain v. Raj a Ram Vohra (MR 1980 SC 299) wherein it is held that the benefit of interpretative doubt belongs to the potential evictee. No matter such benefit comes from the interpretation of the provisions of T.P. Act once it is in favour of the tenant who is facing eviction. 13. No matter such benefit comes from the interpretation of the provisions of T.P. Act once it is in favour of the tenant who is facing eviction. 13. Once it is found that the tenant is entitled to continue in possession even after the collapse of the roof and two side walls, then the right to restore the building to its original shape either by making reconstruction or renovation or in any other form, cannot be denied to him. The tenant is liable to keep the building in as good condition as it was in at the time he was put in possession. He is entitled to continue in possession till he is lawfully evicted and liable to pay the contract rent to the landlord. The tenant cannot claim reimbursement of the expenses he incurred for restoring the building to its original shape. However, the tenant cannot put up altogether a new structure or change the basement. He is under law entitled only to restore the building to its original shape without addition or subtraction. 14. If there was no collapse of the roof and two side walls on 14-1-1994, no cause of action for the present proceeding would have been there. The incident on account of 'irresistible force' created aright of option in favour of the tenant. That being so, the decree in O.S.352/83 obtained by the third respondent will not prevent the petitioner from proceeding with the work of the building to restore to its original shape. Ext. R3(A) decree is therefore not a bar for enforcing the protection available to the tenant as a result of exercise of option under S.108(e) of the T.P. Act. 15. As noticed the landlord in this case has obtained an interim injunction order in I.A. 183/94 in O.S.47/94 from the Munsiff s Court, Cochin on 20-1-1994 restraining the Asst. Commissioner of Police, Mattancherry from rendering any assistance to the petitioner in the matter of the re-construction of the building. It is not known whether the said order is continuing in force even now. Details of the order are not available. A copy of the order was produced pursuant to the direction issued by this court. Commissioner of Police, Mattancherry from rendering any assistance to the petitioner in the matter of the re-construction of the building. It is not known whether the said order is continuing in force even now. Details of the order are not available. A copy of the order was produced pursuant to the direction issued by this court. The petitioner was not made a party to the said petition though he is shown as one of the defendants in the suit.1 am too much distressed to see the manner the landlord is creating impediments in the way of enjoyment of rights of the petitioner to continue in possession of the building in its original shape without recourse to the procedure established by law for eviction from the leasehold premises. Police officials are practically restrained from giving protection to the petitioner for doing any works to restore the building to its original position. Be that as it may, I cannot deny the right of the petitioner to seek police protection if there are justifying circumstances for such and when his legal right to restore the building to its original shape either by re-construction or by effecting the works in any other manner is sufficiently established. 16. Yet there is another aspect which pervades my mind poignantly in this case. Art.21 of the Constitution in unequivocal terms declares that no person shall be deprived of his life or personal liberty except by the procedure established by law. Every citizen has a right to live as a human being which is an essential attribute of the obligation of the State as envisaged in Art.43 of the Constitution. A citizen cannot be drawn to an animal existence and to have perpectual misery and destitution. It is always the duty of the court depending on the facts of each case to save citizens being drawn to live in subhuman conditions because it is antithesis to the concept of life envisaged under Art.21 of the Constitution. If at all the life of a citizen to be permanently sub-humanized it can only be in accordance with the procedure established by law. The right of the petitioner to restore the collapsed building to its original position either by re-construction or otherwise has been established. The tenant who was an unfortunate victim of a natural calamity, has been terrorized by legal intricacies. The right of the petitioner to restore the collapsed building to its original position either by re-construction or otherwise has been established. The tenant who was an unfortunate victim of a natural calamity, has been terrorized by legal intricacies. Even the police is restrained from giving protection for re-construction of the building. This is really a worrisome scenario faced by this court. In the background of this abominable situation, my conscience does not permit me to deny police protection to the petitioner and his family to remove the obstruction in restoring the collapsed dwelling house to its original shape and to live in human conditions till they are being pulled out from the leased premises in accordance with the procedure established by law, no matter in whatever form it comes to my notice. 17. Considering all the facts of the case, I am inclined to declare the right of the petitioner to continue in possession of the leased premises and to make necessary work either by re-construction or in any other manner to restore the building to its original shape, without any alteration, either structural or foundational. The petitioner apprehends obstruction from the third respondent-landlord from effecting the works as required. The landlord has no right to obstruct the tenant from restoring the building to its original shape since he has exercised option as required under S.108(e) of the T.P. Act after the collapse of the material part of the building. In a society governed by rule of law it is the duty of the State to enforce obedience to law by all concerned and call in aid its police power if the situation so warrants. From the facts revealed in this case, the apprehension of the petitioner cannot be ruled out. The petitioner is therefore entitled to get police protection from respondents 1 and 2 for effecting the work on the collapsed roof and two side walls for restoring the building to its original shape. However, I am refraining at present from issuing any immediate direction to the police officials in view of the fact that an interim injunction order has been passed against them by the learned Munsiff in I.A. 183/94 in O.S.47/94. However, I am refraining at present from issuing any immediate direction to the police officials in view of the fact that an interim injunction order has been passed against them by the learned Munsiff in I.A. 183/94 in O.S.47/94. The petitioner or the police can immediately approach the Munsiff s Court for appropriate direction in the proceeding pending before that court, in view of the right declared in favour of the petitioner by this court. I do not propose to express any opinion on the above interim order passed by the Munsiff since that matter is not directly in issue before me in this case. 18. The original petition is allowed to the extent indicated above. No costs.