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2001 DIGILAW 312 (KER)

Mammu v. George Augustus Pappali

2001-06-20

JACOB BENJAMIN KOSHY

body2001
JUDGMENT J.B. Koshy,J. 1. All the three original petitions were filed by the tenants of building owned by first respondent against order of eviction passed under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Controller found that petitioners in O.P.Nos. 4979 and 9803/ 92 are liable to be evicted under Sec.11(2)(b) of the Act on the ground of arrears of rent by Ext. P1 common order and dismissed the case of the landlord under S.11 (4)(iv) for reconstruction. The appellate authority, in all cases, granted order for eviction under Sec.11(4)(iv) of the Act after finding that the building is in a dilapidated condition and it requires reconstruction. The bona fides of the petitioners, ability of the landlord to reconstruct the building etc. were also found. The plan was also looked into. The appellate authority also found that the tenant will be entitled to get sufficient space allotted in the reconstructed building in accordance with the provisions of S.11(4)(iv) of the Act. Appellate Authority, on the basis of evidence, held as follows: " .... In the above circumstances, I find that the building is in such a condition as it needs reconstruction, that the petitioner has the capacity to rebuild and has the required plan and licence and consequently find that the petitioner is entitled to get eviction of the respondents for the purpose of reconstructing the building which are the subject matter of the three petitions under Sec.11(4)(iv) of the Act. Point found accordingly." ".... The respondents are allowed two months time from this date to surrender possession on the expiry of which period the petitioner will be free to file necessary execution petition and get possession through court. It is made clear that the respondents will be entitled to get sufficient space allotted from the reconstructed building in accordance with the 3rd proviso to S.11 (4)(iv) of the Act." With regard to the petitioner in O.P.No.4979 and 9803/92 eviction order under Sec.11(2)(b) of the Act was confirmed. They were given the benefit under . S.11 (2)(c) for depositing the arrears within one month as can be seen from Ext. P2 order. The revisional authority by Ext. P3 order confirmed Ext. P2 . appellate order. This revisional order is challenged in these writ petitions filed under Art.227 of the Constitution of India. 2. They were given the benefit under . S.11 (2)(c) for depositing the arrears within one month as can be seen from Ext. P2 order. The revisional authority by Ext. P3 order confirmed Ext. P2 . appellate order. This revisional order is challenged in these writ petitions filed under Art.227 of the Constitution of India. 2. During the pendency of the original petition, the landlord died on 1-1-1993. The tenants impleaded the legal representatives of the landlord to continue the proceedings. The landlord's brother's son also filed a petition for impleading on the ground that the land and building was already given to him by a Will. It is the contention of the petitioners that there was a dispute regarding the correctness of the will by some relatives. Even though the above is settled by judgment of this court, actual probate is not so far granted. Three points are pressed by the petitioner. First point is that since original landlord died, bona fide of the present landlord for reconstruction is not proved and order of eviction is liable to be quashed. In any event, their case is that the capacity of the present owner to reconstruct the building and absence of a valid plan now etc. shall be looked into. Secondly, it was contended that lower authorities did not fix the date for reconstruction which is mandatory as per the section. Thirdly it is submitted that if there is any arrears, they are prepared to pay the amount under Sec.11(2)(c). 3. At the outset, it can be stated that power under Art.227 of the Constitution will be exercised only when there is error of jurisdiction or patent error on the face of the -record causing irreparable injustice and it is a discretional remedy. I am of opinion that the landlord was alive when the case was pending before the Rent Control Appellate Authority and Revisional Authority. The matter was decided during his term on the basis of the facts available about the case. Writ Petitions filed in 1992 under Art.227 were pending here for about ten years (nine years). Art.227 being a discretional remedy, on the facts of this case, should this court interfere purely on account of the events occurred after filing of eviction petition or even after the date of the decision of the revisional court confirming the order of the appellate authority. 4. Art.227 being a discretional remedy, on the facts of this case, should this court interfere purely on account of the events occurred after filing of eviction petition or even after the date of the decision of the revisional court confirming the order of the appellate authority. 4. In this connection, I refer to the decision of the Supreme Court in Kamleshwar Prasad v. Pradumanju Agarwal ( AIR 1997 SC 2399 ) wherein the Supreme Court held that order of the appellate authority under the Act became final and cannot be interfered with by the High Court under writ jurisdiction by taking into account subsequent events and bona fide need for starting business etc. Such requirement will not lapse on the death of the landlord because circumstances to be considered are as on the date and the matter was pending before the lower authorities and not in this court. It is true that Art.227 of the Constitution is a supervisory proceeding and not a proceeding under Art.226. But. superintendence of this court is to consider whether the order passed by the lower authorities at that time is correct or not. Therefore, I am of the view that the landlord died subsequently is not a matter that should be considered in a proceedings under Art.227 of the Constitution of India especially on the facts of this case. Appellate court and revisional court allowed eviction under Sec.11(4)(iv) of the Act finding that the building is in a dilapidated condition and not for his use for some business, residence etc. After considering the commission report, courts were satisfied that this old building needs reconstruction. Original eviction petition was filed in the year 1982, After lapse of about two decades, condition of the building will deteriorate only. Therefore, subsequent events of long delay will not affect the need for reconstruction on the basis of the 'condition of the building' as on the date of filing of eviction application. With regard to the contention regarding approved plan and capability of the present landlord . etc. I shall deal with subsequently. Question to be considered is whether Ext. P3 order confirming Ext. P2 appellate order based on finding of fact can be quashed by using the extraordinary jurisdiction of this court under Art.227 of the Constitution of India for error apparent on the face of the record or perverse finding of fact or patent error of law. Question to be considered is whether Ext. P3 order confirming Ext. P2 appellate order based on finding of fact can be quashed by using the extraordinary jurisdiction of this court under Art.227 of the Constitution of India for error apparent on the face of the record or perverse finding of fact or patent error of law. Position may be different if the landlord died during the proceedings before the rent control authority or appellate authority or even before the revisional court in appropriate circumstances depending upon the reasons stated for eviction by the landlord. We are concerned with findings of fact entered by the lower authorities confirmed in revision and the effect of subsequent event after revisional order in the fourth round in a proceeding under Art.227 of the Constitution of India, that too, when the reason for eviction is reconstruction of the building considering the condition of the building. 5. In this connection, I also refer to the decision of the Supreme Court in Gaya Prasad v. Pradeep Srivastava ( 2001 (2) SCC 604 ) wherein the Supreme Court held that the development in lives of landlord and his family cannot be expected to come to a standstill during the pendency of eviction petition especially in view of tardiness and delays plaguing the legal system. Bona fides of his requirement have to be tested in relation to the date on which the eviction was applied for. In that case, the premises were required for starting son's business, During the pendency of the case, son got a job and moved out of town and that cannot be taken against the landlord. It was contended by the tenants that now there is no bona fide requirement. The Supreme Court held that that is not a ground to be looked into and also held that the longer is the life of the litigation, the greater would be the number of developments taking place during the interregnum. Now, proceedings before the Rent Control Court started in 1982 and for about 20 years they were in litigation. Concurrent finding of facts entered in Exts.P2 and P3 are challenged in this proceedings after exhausting the remedy of revision. Apart from the above, I find more difficulty to grant discretionary relief to the petitioners as they were not paying rent. Now, proceedings before the Rent Control Court started in 1982 and for about 20 years they were in litigation. Concurrent finding of facts entered in Exts.P2 and P3 are challenged in this proceedings after exhausting the remedy of revision. Apart from the above, I find more difficulty to grant discretionary relief to the petitioners as they were not paying rent. While the matter was pending like this, an application under Sec.12 was filed alleging that none of the tenants paid any amount after September, 1991. Of course, if there is any dispute regarding the landlord, nothing prevented them in depositing the rent before the Rent Control Court and they were sitting and doing business luxuriously in (he heart of die Cochin City without paying even the nominal rent fixed decades ago for the last ten years. Therefore, it is a question whether discretional remedy under Art.227 of the Constitution of India should be exercised in interfering with the lower court orders. 6. I also note that in O.S.No.4/97, the Will of the original landlord was accepted and now there is no dispute regarding who succeeded to the possession of the land in the above by judgment of this court dated 9-3-2001. Of course, tenants have got first re-option to have the reconstructed building with liability to pay fair rent. This right of re-occupation of the building after reconstruction was allowed by the appellate authority and revisional court Therefore, no irreparable injustice will be caused to the tenants so as to attract the writ jurisdiction of this court. 7. Of course, tenants have got first re-option to have the reconstructed building with liability to pay fair rent. This right of re-occupation of the building after reconstruction was allowed by the appellate authority and revisional court Therefore, no irreparable injustice will be caused to the tenants so as to attract the writ jurisdiction of this court. 7. S.11(4)(iv) of the Act reads as follows: "(iv) If the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction: Provided that the landlord who evicts a tenant and does not re-construct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that court be liable to a fine of rupees five hundred, if it is proved that he has; wilfully neglected to reconstruct completely the building within such time: 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 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: Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent; or" 8. In terms of the section when eviction is ordered under the section, time has to be fixed for reconstruction of the building. Neither the appellate authority nor the revisional court has fixed a time limit for reconstructing the building. Rent Control Court has also got power to extend the time originally fixed also on the facts of each case. When no time is fixed in the order for reconstruction, it should be presumed that it should be reconstructed in a reasonable time. Neither the appellate authority nor the revisional court has fixed a time limit for reconstructing the building. Rent Control Court has also got power to extend the time originally fixed also on the facts of each case. When no time is fixed in the order for reconstruction, it should be presumed that it should be reconstructed in a reasonable time. It was held in Gracykutty v. Vasudevan ( 1991 (1) KLT 182 ) that if the time is not fixed in the original order, time can be fixed subsequently also. Fixation of time for reconstruction is a statutory requirement and when that matter was omitted by the lower court, it is obligatory on me to consider that matter. On the facts of this case, since lower court did not fix a time limit, I order that reconstruction shall be completed within one year from the date of delivery of the building to the landlord. 9. With regard to the contention that petitioner had no approved plan, it is to be noted that when Exts.P2 and P3 orders were passed, there was approved plan. In Abdul Khader v. Abdulrahiman Master ( 1987 (2) KLT 945 ) Jose v. Thomas ( 1992 (1) KLT 158 ) and M/s.Chakolas Silk House and others v. Abdul Sathar Ismail Sait and others ( 1999 (1) KLJ 116 ) it was held that petition cannot be rejected on the ground that validity of the plan and licence expired during the proceeding. Here, during the proceedings before the court there was valid plan and licence. However, in view of (he delay and subsequent death of the original landlord, I direct that actual delivery of possession will be given only when the landlord satisfies the execution court that there is approved plan and licence as per law. In this connection, 1 also refer to the decision of the Supreme Court in K.N. Karthikeyan v. M.N. Sreenivasan and others, (1998) 3 SCC 520 ). Petitioner will be entitled to get sufficient space allotted from the reconstructed building with first option as provided under S.11(4)(iv) of the Act and as directed in Ext. P2. With regard to the ability of the landlord to reconstruct the building in the background of bona fide need of reconstruction, I have already held that, in view of the 'condition of the building', it needs reconstruction urgently. P2. With regard to the ability of the landlord to reconstruct the building in the background of bona fide need of reconstruction, I have already held that, in view of the 'condition of the building', it needs reconstruction urgently. When the cases were pending before the adjudicating authority/court as per Rent Control Act, ability of the landlord was also satisfied. Now a reconsideration is not justifiable in a proceeding under Art.227 of the Constitution of India. However, if the present landlord has no bona fides and not able to reconstruct the building within the time allowed, evicted tenants will get back the place with damages as provided under second proviso to Sec.11(4)(iv) of the Act. 10. With regard to arrears of rent, order passed under S.11(2)(b) and Sec.12 petition filed before this court, it is submitted that the entire admitted arrears of rent as on today will be deposited by them within three months from today. 11. Hence, I order that arrears of rent should be deposited by the tenants within the above three months' time before the court below. All the original petitions are disposed of with the above directions.