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2002 DIGILAW 370 (KER)

Mohammed v. Accommodation Controller

2002-06-17

M.RAMACHANDRAN

body2002
Judgment :- 1. Ext. P1 order of the Accommodation Controller (Tahsildar), Tirur, passed in exercise of powers conferred under S.17(2) of Act 2/1965 is challenged by the landlord, in this Original Petition. The operative portion of the order was in the following terms: "In the result, I hereby direct under S.17(2) of the Act that the maintenance and repairs to the roof and walls of the scheduled building may be attended to by the applicants tenants limiting the expenditure to Rs. 10,000/- (Rupees ten thousand only) and that the charges and cost thereof may be deducted on production of bona fide and genuine accounts with supporting vouchers from the rent which is payable by the tenants". 2. It is submitted that the order is passed without jurisdiction, and in any case overlooking the rights and contentions of the landlord. The said order came to be passed in the following circumstances. 3. The tenanted premises is a shop room. Calling upon the landlord to attend to maintenance work, tenant had issued a notice to the landlord, on 23.8.1992. The reply showed that such repairs were not necessary, and the building had become damaged by the improper use thereof, as ice blocks and salt were being stored there. The tenant had thereupon requested the Accommodation Controller to exercise his jurisdiction, envisaged under S.17(2) of the Act. 4. The Officer had referred the matter for a report from the Revenue Inspector. The report dated 19.11.1992 as could be seen from the order indicated that eastern portion of the roof and wall were in damaged position and the beams and rafters in the roof have been ruined and the building was unfit for use and it may fall down at any moment. At his estimate, Rs. 10,000/- was required for repairs. 5. Before the Accommodation Controller, landlord maintained that necessary repairs had been carried out, and highlighted about the misuse. He had objected to the report of the Inspector behind his back. On the statement of the landlord, a fresh report had been called for, and the order indicates that the second report was also one, substantially maintaining his earlier opinion. 6. It may also be relevant to note that the landlord had referred to the rent earned from the premises, which was Rs. 15/- per month, and therefore, an adjustment as envisaged by the Rules could not have been possible of avail. 6. It may also be relevant to note that the landlord had referred to the rent earned from the premises, which was Rs. 15/- per month, and therefore, an adjustment as envisaged by the Rules could not have been possible of avail. However, after hearing the parties, directions as referred to above have been issued. The operation of the order stands stayed. 7. The tenant though has received notice, had not entered appearance. Learned Counsel for the petitioner, Sri. K. Ramachandran had highlighted the contentions urged in the Original Petition, to substantiate that the order was irregular and illegal. 8. The power exercised by the first respondent is under S.17(2) of the Act, which could be extracted herein below: "17(2). Notwithstanding any law, custom, usage or contract to the contrary the landlord shall be bound to attend to the periodical maintenance and necessary repairs of the building. If landlord fails to attend to such maintenance or repairs to the buildings and amenities thereto within a reasonable time after notice is given by the tenant, it shall be competent for the Accommodation Controller to direct on application by the tenant that such maintenance and repairs may be attended to by the tenant and that the charges and cost thereof may be deducted with interest at six per cent per annum from the rent which is payable by him." It has to be examined as to what is the extent of the power that has been bestowed on the officer, and the manner in which it could be exercised. 9. The duty of the landlord is to attend to the periodical maintenance and necessary repairs of the building. When the allegations is that there is a failure on the part of the landlord, it is the burden of the tenant to show that there has been a deliberate refusal to carry out the duties statutorily to be attended to. In the reply notice, as also in the statement, the landlord had taken a stand that periodical repairs were being carried out, and the damage to the building was because of possible misuse. 10. If that be so, the tenant was obliged to substantiate his contentions with facts and figures. In the reply notice, as also in the statement, the landlord had taken a stand that periodical repairs were being carried out, and the damage to the building was because of possible misuse. 10. If that be so, the tenant was obliged to substantiate his contentions with facts and figures. An inspection by the Revenue Inspector might have disclosed about the structural soundness of the building as on the date of inspection, but it was not substitute for proof as regards the omission of the landlord. The Accommodation Controller has erred in adopting a stand that the burden rested with the landlord. Especially in this case, it could never have been so considered as shifted. 11. The counsel is also on strong grounds when he urged that the report of the Revenue Inspector, in fact substantiated his stand. The tenanted premises is a single room. The rent is Rs. 15/-. The report is that the premises have become unfit for occupation, and it may fall down at any moment. Walls, beams and rafters are to be changed, and the minimum investment required is stated as Rs. 10,000/-. As I find it, the cumulative conclusion possible from the report is that what was required was not a repair, but a renovation. S.17(2) does not authorise the first respondent to pass an order permitting the tenant to carry out a renovation for his convenience. It is totally different from maintenance or repairs. The Accommodation Controller should have found that the effect of the order was to divest the petitioner of his very status as a landlord. Even though there was no direction for recovery of interest on the sums expended, the tenant was sought to be conferred with a right to occupy the building for the next half century, without liability for payment of any rent. It is felt that a realistic approach was to be there when dealing with applications of this nature. 12. The Accommodation Controller while exercising powers under S.17(2) is exercising not administrative jurisdiction. In the matter of collection of materials, therefore a judicious approach has to be made. Deputation of Revenue Inspector, without notice to persons also might be adversely affected is not to be encouraged. Only on satisfactory materials, the decisions are to be rested. 13. Mr. Ramachandran referred to a few decisions in support of his contentions. In the matter of collection of materials, therefore a judicious approach has to be made. Deputation of Revenue Inspector, without notice to persons also might be adversely affected is not to be encouraged. Only on satisfactory materials, the decisions are to be rested. 13. Mr. Ramachandran referred to a few decisions in support of his contentions. One of them being Renganatha Pai v. D.I.G. of Police (1994 (2) KLT 366). If the work turns out to be one of reconstruction and renovation, the Accommodation Controller will have no powers to pass orders, authorising such work. I respectfully agree with the said decision. The authorities should not turn a blind eye to economical realities to the extent relevant. It is not as if the landlord is always to be at the receiving end. It is not envisaged that uneconomical repairs for the convenience of the tenants are to be mandatorily carried out by him. Consequently, the impugned order is set aside. There will be no order as to costs. The Original Petition is allowed.