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2018 DIGILAW 553 (KER)

Ashalatha Divakaran C. K. v. T. K. Sahira

2018-07-11

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. Harilal, J. 1. The revision petitioner is the third appellant/landlord in RCA No. 135 of 2010 of the Rent Control Appellate Authority, Thalassery. The aforesaid appeal was filed challenging the judgment passed by the Rent Control Appellate Court, Kannur in I.A.No. 1658 of 2009 in RCP No. 306 of 2005. The said application was filed by the first respondent/tenant herein seeking permission to construct building as per the plan approved in the name of the revision petitioner/landlord and to intimate the same to the Municipality for further steps and renewal of permit, if necessary. 2. The first respondent is the tenant who was evicted from the petition schedule shop room in execution of an order passed against him under Section 11(4)(iv) of the Buildings (Lease and Rent Control) Act (‘the Act’ for short). 3. According to the first respondent, he had surrendered the tenanted shop room and the appellant demolished the entire building before 1 1/2 years. In spite of lapse of more than one year after the surrender of the petition schedule shop room and demolition of the entire building, re-construction work of the new building is not yet started. The building plan granted by the Municipality is in force and he along with the other tenants are ready to construct one room each in the ground floor as per the plan. According to him, the appellant willfully neglected to re-construct the building and on the failure of compliance with the direction in the order of eviction, he is entitled to get permission to reconstruct the petition schedule room in accordance with the building permit and plan. So he prayed for the same. The other tenants also filed similar petitions with the very same relief. 4. The revision petitioner filed objection contending that the Rent Control Court has no power to direct the Municipality to renew the permit. The Rent Control Court ceased to have power and it is for the Munsiff Court to execute the order passed by the Rent Control Court. The first respondent did not surrender vacant possession of the building voluntarily. Eventually, the petitioner filed an EP and the tenanted premises was vacated pursuant to the order passed in the said EP. On account of the delay in getting the vacant possession of the building, the permit granted by the Municipality for the re-construction of the building was lapsed. The first respondent did not surrender vacant possession of the building voluntarily. Eventually, the petitioner filed an EP and the tenanted premises was vacated pursuant to the order passed in the said EP. On account of the delay in getting the vacant possession of the building, the permit granted by the Municipality for the re-construction of the building was lapsed. Moreover, there is material change in the Municipal Rules regarding the open space to be left in front of the building. The cost of materials required for construction considerably also went high. The revision petitioner/landlord has not neglected re-construction of the building. The aforesaid petition was filed more than one year after the delivery of the petition schedule building and therefore, it is barred by limitation. 5. After considering the rival pleas stated above, the Rent Control Court passed the common order allowing all the petitions as prayed for. Even though the revision petitioner along with the other landlords preferred appeals, the appellate authority also concurred with the findings of the Rent Control Court and dismissed all the appeals by a common judgment. The legality and the correctness of the aforesaid common judgment, whereby the courts below concurrently passed the impugned order granting permission to reconstruct the building after taking necessary permissions from the Municipality is challenged in this RCR. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 7. The scope and the extent of consideration in this revision petition is confined to the legality and propriety of the concurrent findings of the courts below whereby the first respondent along with the other tenants were granted permission to re-construct the building in the place where the old tenanted premises were situated with the permission of the Municipality. Going by the impugned order, it is seen that the revision petitioner has contended that the Rent Control Court ceased to have power and it is for the Munsiff’s Court to execute the order passed by the Rent Control Court. Therefore, Munsiff Court alone has the jurisdiction and power to grant permission to the tenants to re-construct the building. We find that the courts below have considered the legal issue raised before both the courts below. Therefore, Munsiff Court alone has the jurisdiction and power to grant permission to the tenants to re-construct the building. We find that the courts below have considered the legal issue raised before both the courts below. As rightly held by the courts below, on a reading of the proviso to Section 11(4)(iv) of the Act, it could be seen that the aforesaid provision gives power to the Rent Control Court to issue directions regarding the reconstruction of the building. In the first proviso, the word ‘Rent Control Court’ is used; but in the second proviso, it seemed reduced to ‘Court’. We are of the opinion that the word ‘Court’ used in the second proviso cannot be interpreted isolately and both provisos must be read and interpreted together with the principal section. If that be so, on a combined reading of the principal section with both provisos, it is well discernible that the Rent Control Court itself is empowered to issue directions to give effect to pass such an order granting permission to re-construct the building by the tenant himself. 8. Another question to be considered is whether the Rent Control Court has power to pass an order granting permission to reconstruct the building to the tenant. This Court is of the view that by employing the wording 'the Court shall have power to issue directions to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession, the Rent Control Court has been given very wide discretionary power to issue the necessary orders to see that the tenant is re-inducted to the new building. The above view is supported by the decision of this Court in Karthiyani Amma v. Lakshmi Amma ( 1992 (1) KLT 138 : 1992 (1) KLJ 187 ). In this decision, this Court held thus: “There is nothing which prevents the Court from permitting a tenant to construct the building in accordance with the plan in a case where there is no other alternative to preserve the tenant’s statutory right of first option to get accommodation. Of course, the building after re-construction would belong to the landlord. The tenant in such a case can be allowed to adjust the cost incurred by him in the rent which accrues due later.” 9. Of course, the building after re-construction would belong to the landlord. The tenant in such a case can be allowed to adjust the cost incurred by him in the rent which accrues due later.” 9. In the above view, the courts below are fully justified in granting permission to re-construct the tenanted premises in the building where the old tenanted premises was originally situated when the landlord failed to re-construct the building within the time specified by the Rent Control Court in the order passed under Section 11(4)(iv) of the Act. 10. Further, it is contended by the learned counsel for the revision petitioner that the re-construction of the proposed building became impossible as per the present Building Rules. But no materials had been produced before the Rent Control Court or the appellate authority to substantiate the said contention that the reconstruction became impossible due to change in the Building Rules. In the absence of any materials in this regard, the courts below are justified in finding that the re-construction is impossible. With abundant caution, the Rent Control Court has made it clear that if any modification is required in the permit and plan to comply with the amendment, if any, in the Building Rules, the same can be done by the Municipality and a further direction was issued to communicate a copy of the order to the Kannur Municipality also. Further, we notice that with abundant caution, the courts below have concurrently held that the respondents/tenants are entitled to re-construct the building as per the plan and permit issued to the landlord by the Municipality and the cost of construction can be adjusted by the respondents from the rent of the building which accrues later. It is needless to say, the building after re-construction would belong to the appellant/landlord. We find that the appellate authority has considered all the legal issues and answered the same correctly. We do not find any reason to interfere with the orders passed by the courts below. Accordingly, this RCR is dismissed. However, it is made clear that the Municipality is at liberty to take a decision in accordance with the present Building Rules.