Judgment :- P.K. Balasubramanyan, J. The petitioner, a tenant of a building within the meaning of the Kerala Buildings (Lease & Rent Control) Act, hereinafter called, the Act, was ordered to he evicted under S.11(4)(iv) of the Act. While ordering eviction, the Rent Control Appellate Authority had also indicated the right of the tenant to have the statutory option of having the re-constructed building let out to him on fair rent. The order provided for surrender of the building by the tenant within a time fixed and for reconstruction to be effected by the landlord. The tenant did not comply with the direction in the order but compelled the landlord to initiate proceedings in execution for getting possession of the building. After reconstruction, according to the tenant, the building was not let out to him by the landlord. The tenant thereupon moved the executing court for getting possession of the reconstruction building from the landlord. An objection was raised on behalf of the landlord that the right available to the tenant to have the re-constructed building let out to him on fair rent is not executable under S.14 of the Act. The executing court overruled that contention by finding that since there was an order by the revisional authority directing the tenant to surrender the building and recognising his right to get back the reconstructed building and since S.14 of the Act provided for execution of every order passed under S.11 of the Actor in an appeal under S.18 of the Act or in a revision under S.20 of the Act, the executing court has the power. Thus finding that the execution petition is maintainable, the executing court found that the landlord was bound to make an offer to the tenant to let out the re-constructed building on fair rent and since the landlord had failed to act in terms of the order for eviction, an order was liable to be issued directing the landlord to deliver to the tenant the re-constructed building in terms of the order for eviction. The executing court thus ordered delivery in favour of the tenant. The landlord filed a revision under the proviso to S.14 of the Act before the District Court. The executing court thus ordered delivery in favour of the tenant. The landlord filed a revision under the proviso to S.14 of the Act before the District Court. The District Court held that the order for eviction had provided that the tenant was to surrender the building in his possession within the time stipulated and had compelled the landlord to execute the order for eviction is his favour and since the tenant had not himself complied with the directions i n the order for eviction he had lost his right to have the reconstructed building let out to him on fair rent. Thus, the District Court reversed the order of the Rent Controller and dismissed the application for delivery of possession made by the tenant. Since this Court has held that no further revision will lie against the order of the District Court exercising power under the proviso to S.14 of the Act, the tenant has approached this court with this Original Petition under Art.227 of the Constitution. 2. In this case, the order for eviction was executed and the landlord obtained possession. The landlord also re-constructed the building. The proviso to S.11(4)(iv) of the Act confers jurisdiction on the Rent Control Court to issue the necessary directions to compel the landlord to reconstruct the building and in case of failure by the landlord to reconstruct the building to issue appropriate directions to put the tenant back in possession of the building or to award damages. The proviso also specifies that the tenant who is evicted would have the first option to have the reconstructed building allotted to him with liability to pay the fair rent. This right of the tenant has been recognised already by the Rent Control Court (here of course, the appellate authority) in the order which provided for reconstruction of the building and the obligation of the landlord to give first option to the tenant to occupy the building on fair rent. This is therefore, not a case where any direction was called for in terms of the proviso to S.11(4) (iv) of the Act. What had happened was that the landlord had refused to put the tenant in possession of the reconstructed building in terms of the order for eviction passed by the rent control appellate authority. It was really a case of enforcement of the order for eviction already passed. What had happened was that the landlord had refused to put the tenant in possession of the reconstructed building in terms of the order for eviction passed by the rent control appellate authority. It was really a case of enforcement of the order for eviction already passed. The very order imposes reciprocal obligations on the tenant, the judgment debtor and the landlord the decree holder. The obligation of the tenant was to surrender the old building and the obligation of the landlord was to demolish that building, to re-construct the building and to make an offer to the tenant to have the re-constructed building put in his possession as a tenant on fair rent. The tenant approached the executing court complaining that the landlord has not fulfilled his obligation under the order for eviction. The landlord resisted that claim by submitting that the tenant has himself not fulfilled his obligation under the order for eviction. In my view, this controversy between the parties related to the enforcement or execution of the order for eviction passed by the Rent Controller under S.11(4)(iv) of the Act and consequently the executing court was right in entertaining the application by the tenant under S.14 of the Act for getting back possession of the reconstructed building to hold the same as a tenant with a liability to pay fair rent. I am therefore, of the view that the executing court was right in its conclusion that the petition was maintainable before it and the tenant had no occasion to approach the Rent Controller again. 3. The only other question is whether by not fulfilling his obligation to voluntarily surrunder the building within the time specified in the order for eviction and compelling the landlord to obtain delivery of the old building by way of execution of the order for eviction, the tenant has forfeited his right to have his option to hold the reconstructed building in terms of the proviso to S.11(4)(iv) of the Act. The Act does not provide for any loss of right in the tenant merely because he did not voluntarily surrender the building. Of course, by that process, he might delay the reconstruction of the building by the landlord and hence would be kept out of possession a longer time than what would have been required if he had surrendered the building within the time stipulated in the order for eviction. Of course, by that process, he might delay the reconstruction of the building by the landlord and hence would be kept out of possession a longer time than what would have been required if he had surrendered the building within the time stipulated in the order for eviction. At best he would be precluded from complaining that the landlord had not adhered to the time schedule for reconstruction fixed by the order for eviction. By compelling the landlord to recover possession in execution of the order for eviction, the tenant does not lose his right to have the option to have the reconstructed building allotted to him on fair rent. Since the District Court has denied the tenant a right vested in him statutorily and recognised by the very order for eviction on the basis of a ground that is not available on the scheme of the Act, the District Court has clearly acted illegally and outside its jurisdiction in interfering with the order of the executing court and denying the tenant the right to have the reconstructed building allotted to him on the ground that the tenant had not complied with the condition imposed by the order for eviction and had not surrendered the old building voluntarily. 4. The other reason mentioned by the District Court is that the tenant had not expressed his willingness to pay fair rent or has not applied for fixation of fair rent. According to the, this omission is not a justification in terms of the Act to deny the tenant to have the re-constructed building allotted to him on fair rent. Il is the duty of the court to fix the fair rent if the occasion arises and if the parties are not in a position to agree to the rent to be paid by the tenant to the landlord. The fact that the tenant did not simultaneously seek the fixing of fair rent would not in any manner deprive him of his right under the statute recognised by the order for eviction. The second reason thus given by the District Court for denying the tenant the benefit of the proviso to S.11(4) (iv) of the Act is also therefore, untenable. The second reason thus given by the District Court for denying the tenant the benefit of the proviso to S.11(4) (iv) of the Act is also therefore, untenable. By adopting that petition, and depriving the tenant of his right to have the reconstructed building put in his possession on fair rent, the District Court has committed a jurisdictional error calling for correction by this Court under Art.227 of the Constitution. 5. The order of the District Court has therefore, to be set aside and the order of the executing court restored. But the executing court has not provided for the payment of the fair rent of the building. Learned counsel for the respondent may be right in submitting that the executing court cannot fix the fair rent and only the Rent Control Court can fix the fair rent. He may also be right in submitting that now that S.5 of the Act has been struck down, the Rent Control Court cannot fix the fair rent payable. In fact the Division Bench in Issue Ninan v. State of Kerala (1995 (2) KLT 848) has declared that provisions relating to fair rent namely Ss.5,6 and 8 of the Act put together are ultra vires the Constitution of India and are void. But in my view that would not disable the Rent Control Court in a proceeding arising under S.11(4)(iv) of the Act from exercising its jurisdiction as a Rent Controller to fix the rent that will be payable by the tenant to the landlord for the reconstructed building. The only thing is that the Rent Controller could not rely on Ss.5,6 or 8 or any of the restrictions contained therein for fixing fair rent. Fair rent has to be understood as a rent a willing tenant would pay to a willing landlord for a building commensurate with the rent prevalent in the locality and the nature and location of the building. All that S.5 of the Act provided was to indicate to the Rent Control Court what were the relevant considerations that should weigh with the Court in determining fair rent. All that S.5 of the Act provided was to indicate to the Rent Control Court what were the relevant considerations that should weigh with the Court in determining fair rent. Even if S.5 is taken to be not available, that does not in any manner deprive the Rent Controller of his jurisdiction to fix the fair rent in cases coming under S.11(4)(iv) of the Act because the Court while ordering reconstruction has also to order that the landlord is bound to put the tenant in possession of the reconstructed building on a fair rent to be paid by the tenant to the landlord. I am therefore, of the view that in cases coming under S.11(4)(iv) of the Act, the executing court can direct the landlord to put the tenant in possession of the re-constructed building and refer the parties to the Rent Control Court for fixation of fair rent in exercise of power under S.11(4)(iv) of the Act and the Rent Control Court can fix the rent for the reconstructed building in exercise of power under S.11(4)(iv) of the Act. In other words the obligation for determination of the rent payable by the tenant to the landlord for the reconstructed building in terms of S.11(4)(iv) of the Act can be achieved by moving the Rent Controller under S.11(4)(iv) of the Act. No separate application for fixation of fair rent under S.5 of the Act is necessary for that purpose and the non-existence of S.5 in the Statute book does not deprive the jurisdiction of the Rent Controller to fix the rent payable for the reconstructed building in terms of S.11(4)(iv) of the Act. All that the executing court can do in such circumstances is to order delivery of the building by the landlord to the tenant not only from the landlord who has reconstructed the building but also from anyone who has been put in possession by the landlord subsequently in derogation of the order for eviction leaving the parties to approach the Rent Control Court under S.11(4) (iv) of the Act to have the rent determined for the reconstructed building. In that view, the order of the District Court is liable to be set aside and that of the executing court restored leaving the parties to approach the Rent Controller for fixation of the fair rent payable by the tenant to the landlord for the building commensurate with the rent prevailing in the locality and all the surrounding circumstances and make it payable by the tenant to the landlord from the date of the tenant being put in possession of the building. In the result, I set aside the order of the District Court and restore the order of the executing court. I leave it to the tenant or the landlord to approach the Rent Control Court under S.11(4)(iv) of the Act to have determined the rent for the reconstructed building payable by the tenant to the landlord. The Rent Controller will fix the rent which is fair to both sides by taking note of the rent prevalent in the locality and the other circumstances untrammelled by any of the provisions contained in Ss.5, 6 or 8 of the Act which have been struck down by this Court. The Rent Controller will also make the rent payable from the date the tenant gets possession of the building pursuant to the delivery already ordered by the executing court. The Original Petition is allowed thus. In the circumstances of the case, I make no order as to costs.