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2018 DIGILAW 596 (KER)

P. v. Janardhanan Nair, S/o. Paru Amma VS Kizhakkumbadan Ashokan, S/o. Chandu

2018-07-24

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. Harilal, J. Since the issues and the parties involved in these Rent Control Revision Petitions are common, all these revision petitions are heard together and are being disposed of together. 2. The revision petitioner is the landlord, who filed four Rent Control Petitions as RCP Nos. 110, 112, 118 and 131 of 2012 before the Rent Control Court, Kannur seeking an order of eviction against the respondents under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short). According to him, the building is aged about 100 years and is in a dilapidated condition and it may collapse in the near future. He has sufficient financial capacity to re-construct the building and he has already obtained a plan and permit for re-construction of the building. He is willing to give first preference to the tenants to occupy the rooms in the re-constructed building on a reasonable rent. 3. The respondents resisted the said Rent Control Petitions on the ground that the building is not so dilapidated as alleged by the revision petitioner and the need for re-construction is a ruse for eviction only. 4. After considering the objections raised by the respondents and the evidence available on record, the Rent Control Court passed an order of eviction under Section 11(4) (iv) of the Act. Feeling aggrieved, the respondents preferred RCA Nos. 171, 172, 173 and 175 of 2014 before the Rent Control Appellate Authority, Thalassery. After re-appreciating the evidence on record, the Appellate Authority confirmed the findings of the Rent Control Court that the building needs re-construction and that the petitioner has ability to re-build the same; but remanded the Rent Control Petitions to the Rent Control Court on a finding that the building permit produced by the petitioner has expired earlier and directed the Rent Control Court to decide the issue as to whether the petitioner will get the plan and licence renewed in the light of the subsequent modifications in the relevant Building Rules and other Laws for the time being in force. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. Going by the impugned judgment passed by the Appellate Authority, we find that the Appellate Authority has considered the relevant points as to whether the building needs re-construction and the landlord bona fide requires to re-construct the building and has ability to re-build and whether the landlord has got the plan and licence to re-construct the building. The first point was found in favour of the petitioner and accordingly, the findings of the Rent Control Court that the building needs re-construction and that the landlord bona fide requires re-construction of the building and he has ability to re-build, were confirmed by the Appellate Authority. 7. In the Appellate Court, the respondents produced two additional documents, which they have obtained as per the Right to Information Act and raised a new plea on the basis of the said additional documents. The documents obtained as per the Right to Information Act are the documents from the Village Office, Azhikode South and the Grama Panchayath, Azhikode. The information was sought for from the Village Office, Azhikode South with regard to the requirement of permit to construct new building in the property in Survey No. 465/9. The information furnished is to the effect that the sanction for construction of building has to be issued from the Panchayath. The other documents show that the Panchayath has furnished an information stating that the said property has been classified as wet land, and that if the property is classified as 'nancha', permission will not be issued to construct a building and prohibition for the same has come into effect from December, 2015. In the light of the aforesaid documents, the respondents contended that the building permit produced before the Rent Control Court expired during the pendency of the Appeal in the year 2017 and the same cannot be renewed in view of the fact that the property wherein the building situated is classified as a wet land. 8. The revision petitioner herein has produced a Government circular, wherein it has been ordered that if the property classified as a wet land was filled up prior to 12.08.2008, permission for building construction can be granted after inspection made by competent officials. 8. The revision petitioner herein has produced a Government circular, wherein it has been ordered that if the property classified as a wet land was filled up prior to 12.08.2008, permission for building construction can be granted after inspection made by competent officials. Pointing out the aforesaid order, the petitioner herein contended that since the property wherein the petition schedule building is situated is one filled up prior to 12.08.2008, in the light of the aforesaid Government Order, there is no legal impediment in getting the permit and licence renewed. 9. That apart, the revision petitioner has produced another documents, which would show that the property wherein the petition schedule building is situated is not included in the data bank. Thus, the documents mentioned above are relied upon by the petitioner to contend that there will not be any prohibition to construct a new building in the property. 10. After considering the aforesaid rival pleas, the Rent Control Appellate Authority, after confirming the requirement of re-construction and the ability of the revision petitioner for the same, remitted the Rent Control Petition to the Rent Control Court, for considering the issue whether the petitioner/landlord will get the plan and licence renewed to re-construct the building, in view of the current Building Rules and Laws on Land at the time of disposal of the Appeal. 11. In the instant case, the petitioner has produced plan and licence before the Rent Control Court along with the Rent Control Petitions in the year 2014 and that permit had validity up to 2017. The Rent Control Petition was disposed of in the year 2014 itself and the validity of the permit and licence expired during the pendency of the Appeal. So, at the time of passing the order appealed against, the petitioner has approved plan and valid licence to re-construct the building. It is true that at the time of disposal of Appeal, the validity of the licence stood expired. In view of the aforesaid rival pleas, the sole question that arises for consideration is whether the land is required to satisfy the Appellate and Revisional Courts that has renewed plan and licence to re-construct the building in accordance with the current Building Rules and Laws on Land to sustain an order of eviction granted under Section 11(iii) of the Act. 12. 12. We are of the opinion that the landlord shall not be burdened with production of renewed plan and licence in every stage of the rent control litigation in the judicial hierarchy. Going by Section 11(4)(iv) of the Act, we find that the statutory mandate is that the landlord shall satisfy the Rent Control Court that he has the required building plan and licence for the re-construction after demolishing the existing building. So, the question to be considered is whether the landlord has valid plan and licence granted by the competent authority at the time of the disposal of the Rent Control Petition. The question whether the plan and licence to re-construct the building would be renewed or not need not be considered in the appellate stage particularly when at the time of disposal of the Rent Control Petition, the landlord has valid plan and licence and they expired during the pendency of the Appeal only. It is for the landlord to renew the permit to make re-construction and the Rent Control Petition shall not be remitted to the Rent Control Court to consider whether the permit would be renewed or not. If the Appellate Court takes such an attitude, there cannot be a finality with respect to plan and licence as the Building Rules and Laws on Land are being changed frequently. Even if the validity of the plan and licence was expired, the Appellate Court can pass or affirm an order of eviction under Section 11(4) of the Act after securing necessary precaution to see that the building is not demolished till the renewal of the permit and licence. The production of renewed plan and licence before the Execution Court is sufficient to secure the interest of the tenants. 13. The above view is supported by the decision of this Court in M/s. Chakolas Silk House and Others v. Abdul Sathar Ismail Sail and others [1999 KHC 8]. In this decision, it is held that the Court cannot reject a petition on the ground that the period of licence expired during the pendency of the proceedings. In such case, the Court may incorporate a direction in the order of eviction that actual delivery or possession will be given only when the landlord satisfies the Execution Court that licence has been renewed or a new licence had been granted by the local authorities. 14. In such case, the Court may incorporate a direction in the order of eviction that actual delivery or possession will be given only when the landlord satisfies the Execution Court that licence has been renewed or a new licence had been granted by the local authorities. 14. In the above analysis, we are inclined to set aside that part of the impugned order whereby the Appellate Authority remitted the Rent Control Petitions to the Rent Control Court for consideration of the aforesaid issue, and we do so. Consequently, all the aforesaid Rent Control Appeals shall stand dismissed and the common order passed in all the Rent Control Petitions will stand restored. These Rent Control Revision Petitions are allowed accordingly.