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2017 DIGILAW 1116 (KER)

T. K. Sreenivasan v. Rugmini

2017-08-04

K.HARILAL, P.SOMARAJAN

body2017
JUDGMENT : P. Somarajan, J. 1. The landlord in revision challenged the concurrent findings rendered by both the Rent Control Court and the Rent Control Appellate Authority under Section 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). 2. The Rent Control Petition was filed by the landlord alleging ground under Section 11(4) (ii) of the Act. After the initiation of Rent Control Petition, roughly after six months, I.A.No.977/2011 was also filed by the landlord with a prayer to fix fair rent of the petition schedule building. That application was allowed by the Rent Control Court fixing the rent at Rs.7,000/- per month. However, the Rent Control Court has rejected the ground under Section 11(4)(ii) of the Act by a common order, which was taken up in appeal by the landlord before the Rent Control Appellate Authority. A Cross Objection was filed by the tenants against the order in I.A.No.977/2011. The Rent Control Appellate Authority dismissed both the appeal and the cross objection, by its judgment dated 07.07.2015. Aggrieved by the said judgment, the landlord came up with this revision. 3. During the course of argument, a flagrant violation of jurisdiction vested with the Rent Control Court as well as the Rent Control Appellate Authority came to our notice regarding exercise of jurisdiction under Section 5 of the Act in an interlocutory application. It is not at all permissible either for the Rent Control Court or for the Rent Control Appellate Authority to take up the question of fixation of fair rent and to adjudicate the same in an interlocutory application. The matters which can be taken up in an interlocutory application should be within the four corners of the suit or proceeding and it should be capable of merging with the final judgment/order subject to certain exceptions. It is seemed to be so strange that an interlocutory application was filed by the landlord for the purpose of fixation of fair rent in a pending Rent Control Petition. It was taken into file by the Rent Control Court, preceded with the application, permitted the parties to adduce evidence on that application and rendered a common order allowing the Interlocutory Application and dismissing the Rent Control Petition. The right under Section 5 of the Act is separate and distinct and it cannot be raised by way of an Interlocutory Application. The right under Section 5 of the Act is separate and distinct and it cannot be raised by way of an Interlocutory Application. All decisions taken in an Interlocutory Application would stand as merged in the final judgment/order, in a proceeding. There may be some exceptions to this general rule. But, the order that may be passed in an interlocutory application should be within the four corners of the suit/proceeding. An order passed under Section 5 of the Act will not merge in an order that may be passed in a Rent Control Petition either under Section 11(4) (ii) of the Act or any of the grounds under Section 11 of the Act. Hence, the ground, if any, under Section 5 of the Act available to either the landlord or the tenant, cannot be raised by way of an Interlocutory Application in a Rent Control Petition filed for evicting the tenants on any of the grounds under Section 11 of the Act, except under Section 11(4) (iv) of the Act. It is permissible for the Rent Control Court to fix fair rent under Section 11(4) (iv) of the Act at the time of re-allotment after reconstruction. The power to fix a fair rent under Section 30 of the Act is standing on a different footing as it primarily vests in a prosecution court under Section 30(1) of the Act and it can be exercised when it was disclosed that a landlord was receiving a rent in excess of the rent that may be fixed under Section 5, and the Court before which the complaint was filed shall, after the close of the proceedings before it, forward to the Rent Control Court the relevant extract of the proceedings for the purpose of fixing the fair rent. In that case, the Rent Control Court is bound by sub section (2) of Section 30 of the Act to take the extract into file and to issue notice to both the parties so as to give them an opportunity of being heard before fixing fair rent. The receipt of extract of proceedings forwarded by the prosecution court would amounts to a separate proceeding analogous to Section 5 of the Act and rent fixed is deemed to be a fair rent as determined under Section 5 of the Act. There also there is no scope for determination of fair rent in an interlocutory application. The receipt of extract of proceedings forwarded by the prosecution court would amounts to a separate proceeding analogous to Section 5 of the Act and rent fixed is deemed to be a fair rent as determined under Section 5 of the Act. There also there is no scope for determination of fair rent in an interlocutory application. The proceedings which can be initiated under Section 30(2) of the Act are also separate and independent, analogous to Section 5 of the Act. Hence, the decision taken by both the Rent Control Court as well as the Appellate Authority in I.A.No.977/2011 is irregular and improper. It was submitted that no revision was filed by the tenants challenging the above said decision. Since there is a flagrant violation of the jurisdiction vested with the Rent Control Court as well as the Rent Control Appellate Authority, the same can be interfered even without a revision and we do so. 4. On coming into the ground under Section 11(4) (ii) of the Act, what has to be looked into is the reduction of utility and value of the building materially and permanently. The expression “building” stands not only for the structures over the landed property, but also the land appurtenant thereto including the amenities attached to it. Any reduction of utility and value of the land appurtenant to the building including the amenities attached to it would come under the purview of Section 11(4) (ii) of the Act. The application of Section 11(4) (ii) of the Act is not restricted to the structures situated over the landed property. Misuse, digging of a permanent well, construction of pillars or any other structure of permanent nature, if it materially affects its utilization, would also come under the purview of Section 11(4) (ii) of the Act. The very basis of the case advanced by the landlord is that the tenants had trespassed into the petition B Schedule building during the continuance of the tenancy and committed some mischief therein by installing a gate in front of the corridor, i.e. at the middle of the corridor, restricting entrance of others into the corridor. But a mere installation of a gate would not affect either the utility or value of the building permanently or materially. But a mere installation of a gate would not affect either the utility or value of the building permanently or materially. Installation of a gate for the convenience of the party cannot be brought under the purview of Section 11(4) (ii) of the Act, unless the same causes any material reduction of utility or value of the building. The Commissioner, who visited the property, has reported the construction of two pillars on the open land lying appurtenant to the tenanted premises. RW1, the tenant, while in the box, has admitted that he had constructed two pillars in the open yard and installed a PVC tank over it. It has also admitted by him that he had drawn a pipeline to the tenanted premises by putting holes into the walls of the old building. Putting holes on the walls of old buildings, may have some impact on its lifespan and it may reduce its value and utility permanently. It has to be assessed by appointing an expert, otherwise it may not be possible to assess whether it has resulted in any material reduction of value or utility of the building permanently. No Commission was let out for that purpose. Since the drawing of a pipeline through the wall of the said building and the construction of two pillars in the open yard situated on the backside of the tenanted premises are admitted by the tenant, it has to be ascertained whether it is of permanent nature and character and whether it has caused reduction of utility and value of the land appurtenant thereto and the building. For that purpose, we are of the view that, issuance of an expert Commission is highly necessary. Hence, the orders passed by both the Rent Control Court as well as the Appellate Authority are hereby set aside and the matter is remanded back to the Rent Control Court for the purpose of ascertaining the real impact of drawing of a pipeline through the building by putting holes on its wall as well as the construction of two pillars on the open yard, the land appurtenant to the building, and also the question of any waiver or acquisition, if any, involved in the construction of the pillars as well as drawing of a pipeline. 5. 5. At the fag end of the argument, the learned counsel for the appellant/landlord brought to our notice the demolition of the compound wall situated on the back side of the premises and installation of a gate therein. We reserve all these grounds for proper consideration by the Rent Control Court and, for that purpose, the revision filed by the landlord is hereby allowed in part. In the result, the revision is allowed in part. The orders passed under Section 11(4) (ii) of the Act by the Rent Control Court and Rent Control Appellate Authority is hereby set aside and the matter is remanded back to the Rent Control Court for proper disposal. The order passed by both the Rent Control Court and the Rent Control Appellate Authority in I.A.No.977/2011 is hereby set aside. We make it clear that the dismissal of the application in I.A.No.977/2011 is without prejudice to the right of the landlord in initiating any proceeding under Section 5 of the Act for fixation of the fair rent. No order as to costs. Parties shall appear before the Rent Control Court on 13.09.2017.