A.B. Kuttan vs Smt. Fathima and Others

Kurian Joseph, J.—The dispute between landlord and tenant in this case centres round the interpretation of Section 13 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ''the Act''). The 3rd respondent tenant in the Original Petition is the appellant. The Original Petition was filed challenging Ext. P3 order passed by the 2nd respondent-Accommodation Controller as confirmed in Ext. P4 order passed by the 1st respondent-Accommodation Control Appellate Authority. The 3rd respondent who is a tenant of the petitioner approached the 2nd respondent as per Ext.R.3(b) petition u/s 13 of the Act, for a direction to the writ petitioners "to restore within a specified period of the way on the southern side of the leased property for the purpose of entry from the leased property to the petitioner''s property and also for restoring the pipeline and the sewer...." The impugned order Ext. P3 is passed on that petition. The 3rd respondent filed Ext.P3(b) when according to him the amenity of an entry from the leasehold premises to the 3rd respondent''s own premises, which was used by him ever since the tenancy, was blocked by the writ petitions by constructing a compound wall. It is to be noted that the 3rd respondent is conducting a bar attached hotel and in the tenanted premises he has four rooms and the rest of the minimum required six rooms are constructed in his own property. Apparently the construction of the compound wall-by the petitioners would affect the chances of the 3rd respondent continuing the business in the tenanted premises, since he would not be in a position to comply with the requirement of having ten lettable rooms in the premises and by the construction of the compound wall the contiguit of the premises is now affected.

The writ petitioners maintained the stand before the 2nd respondent Accommodation Controller that it was necessary to repair the compound wall which had collapsed and hence in order to protect the interest of the other tenants, it was necessary to construct the compound wall. It was also submitted before the 2nd respondent that the writ petitioners had not provided the amenity of a pathway or entry from the tenanted premises to the premises of the 3rd respondent. It was also contended that in any case the entry prayed for is not an amenity as contemplated u/s 13 of the Act. The 2nd respondent, after taking necessary evidence on both sides and also considering the report of the concerned Village Officer, came to the conclusion that the construction of the compound wall by the petitioners amounted to cutting off or withholding the amenity enjoyed by the 3rd respondent and hence the same was directed to be restored. The petitioners took up the matter in appeal as provided u/s 13(6) before the 1st respondent. But the appeal was dismissed by the 1st respondent as per Ext. P4 order.

Before the learned single Judge the main contention was that the prayers of the 3rd respondent before the 2nd respondent for restoring the amenity of an entry from the petitioners'' property to that of the 3rd respondent cannot be countenanced as it is not an amenity as contemplated u/s 13 of the Act. According to the learned single Judge, Ext. PI lease deed did not contemplated such a stipulation regarding the entry from the petitioners'' property to that of the 3rd respondent and even assuming there was such an arrangement for the use of the pathway in view of the good relationship between the parties, it cannot be termed as an amenity. Accordingly the Original Petition was allowed recording the submission of the petitioners that they would not interfere with the use of water supply and that of sewar by the 3rd respondent through the pathway so long as the tenancy subsisted. Aggrieved the 3rd respondent has filed the Writ Appeal.

It is the submission of the learned Counsel appearing for the appellant that both the fact finding authority and the appellate authority have found on question of fact that there existed a pathway and that the appellant had been in uninterrupted use of the same for access to his own premises from the tenanted premises and that the purpose of the user of the tenanted premises would be achieved only by use of the pathway and once such an access is not there, the very purpose of the tenancy would be defeated. It was also submitted that even the landlords understood the said access as an amenity enjoyed by the appellant and only with a view to eject him somehow from the tenanted premises, the writ petitioners had constructed the compound wall, so as to deny the proper enjoyment of the tenanted premises.

The learned Counsel for the writ petitioners submitted that the request of the appellant 3rd respondent cannot be considered in view of the finding of the civil Court that the pathway is not an amenity and that he had already suffered an order by the Civil Court as per Ext. P2. It was also submitted that in any case the use of the pathway in dispute was not an amenity, at any rate not an amenity attached to the tenancy arrangement, and hence the 2nd respondent Accommodation Controller did not have the jurisdiction to pass Ext. P3 order.

On the plea of res judicata, it has to be noted that even according to the learned Munsiff, as can be seen from Ext. P2 interlocutory order in I.A. No. 29 of 2000 in O.S. No. 1109 of 1998, when a tenant is aggrieved by an act of the landlord by which he has without sufficient cause cut off or withheld any amenity enjoyed by the tenant, the tenant can approach the Accommodation Controller. This is an effective alternate remedy provided by the Kerala Buildings (Lease and Rent Control) Act. It is not in evidence that petitioner availed of this provision for redressal of his grievance." According to the appellant, it is on the basis of this observation, he sought permission to withdraw the suit so that he can approach the appropriate forum. On Ext. R3(h) petition filed by the appellant under Order XXIII, Rule 1, CPC for withdrawal of the suit the learned Munsiff passed Ext. R. 3(i) order dated 7-4-2000 as follows:

Petition under Order 23, Rule 1, CPC Petitioner is plaintiff. He seeks to withdraw the suit for proceeding against the defendant before appropriate form. Petition in effect is for withdrawing the suit....

Hence the petition was allowed. Once a suit is withdrawn under Order XXIII, Rule 1, CPC in order to proceed against the defendant before Anr. forum, the subsequent proceedings is not hit by the principles of res judicata. It is also to be noted that the permission for withdrawal was for prosecuting the grievances before appropriate forum and the defendant - landlord has to no demur on the permission given.

The next contention of Sri. T.A. Shaji, learned Counsel appearing for the writ petitioners is that in any case a pathway is not an amenity as contemplated u/s 13 of the Act. The learned Counsel vehemently contended that at any rate the pathway is not an amenity attached to Ext. PI tenancy arrangement.

It is significant to note that under the provisions of Section 13 of the Act, the amenity need not necessarily be one provided by the landlord the tenancy arrangement. It need only be an amenity enjoyed by a tenant in connection with the enjoyment of the tenanted premises. This petition is clear from a plain reading of Section 13. The relevant portion of the said Section reads as follows:

Landlord not to interfere with amenities enjoyed by the tenant:

(1) No landlord shall, without Just or sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant.

(2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Accommodation Controller complaining of such contravention.

(3) If the tenant satisfies the Accommodation Controller that the amenities were cut oil or withheld with a view to compel him to vacate the building or to pay an enhanced rent, the Accommodation Controller may pass an Interim order, directing the landlord to restore the amenities Immediately, pending the enquiry referred to in Sub-section (4).

Explanation: An Interim order may be passed under this Sub-section without giving notice to the landlord. Any interim order so passed may be modified or cancelled by final order and the Accommodation Controller may give effect to such modification or cancellation.

(4) If the Accommodation Controller on inquiry finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without just or sufficient cause, he shall make an order directing the landlord to restore such amenities and for the purpose of enforcement of such orders, the Accommodation Controller may exercise all the powers of a Civil Court in executing a decree for injunction or for specific performance.

It may be seen that what is contemplated u/s 13 is only an amenity enjoyed by a tenant. It need not necessarily be an amenity provided by the landlord at the time of lease. It can be a subsequent arrangement also - a subsequent arrangement for the purpose of better or more fruitful enjoyment of the tenanted premises. What is significant is whether the landlord has interfered with the enjoyment of any amenity by a tenant and not necessarily an amenity provided by the landlord to a tenant. Thus, there can be amenities enjoyed by a tenant which are not necessarily provided at the instance of the landlord and there can also be amenities which are not forming part of the tenancy arrangement, but at the same time enjoyed by a tenant in connection with a tenanted premises. One need not strain too much to understand the plain and unambiguous meaning and purpose of this beneficial piece of legislation. It is significant to note that this legislation was enacted for the purpose of prevention of unreasonable eviction of tenants from buildings. Section 13 is enacted also to see that a tenant is not harassed as a ruse for eviction. So long as the tenancy subsists, a tenant should be permitted to have a reasonable enjoyment of all the amenities enjoyed by him for the proper use of the tenanted premises.

In that view of the matter, it has to be seen that interference with an amenity of a pathway or access to a premises in enjoyment by a tenant for quite some time cannot be made by the landlord without just or sufficient cause. That in the instant case such interference was without any just or sufficient cause has already been found by the fact finding authority and this Court will not be justified in upsetting such a finding of fact arrived by the statutory authority on proper appreciation of evidence.

Then the question arises as to whether the pathway or the access in question is an amenity. On a plain understanding of the word ''amenity'', in relation to an immovable property it can be seen that it would mean a facility or an advantage. If only one is not in a position to gather the contextualised meaning of an expression in a provision, there has to be any research as to what are the other shades of the expression. Only in relation to the user of a premises, the proper and contextual meaning of the word ''amenity'' can be gathered. Guided by the purposive interpretation of the provision, it has to be understood that the expression ''amenity'' appearing in Section 13 of the Act means only a facility, an advantage enjoyed by the tenant. In Mariyakutty Umma v. Moosakutty Haji 1969 KLT 990 V.P. Gopalan Nambiar, J. (as he then was) understood the expression ''amenity'' as an advantage when understood in relation to an immovable property. In S. Subramaniam Vs. K.V. Rajaram and Others, , the word ''amenity'' was understood to mean a special facility enjoyed by the tenants for some time. Going by the evidence tendered by the power-of-attorney holder of the petitioners before the Accommodation Controller, it is evident that the appellant had been in enjoyment of the facility and advantage of the pathway in question for quite some time in connection with the conduct of his bar hotel:

(Vernacular matter is deleted)

Thus the the witness who is the power of attorney holder of the landlord is clear in his evidence that the appellant-tenant had been in enjoyment of the pathway for the purpose of access to his property and for using the vacant place for parking. The tenant having been in enjoyment of the facility for the purpose of user of the tenanted premises to run bar attached hotel, the landlords-petitioners would not be justified in interfering with the same without any just or sufficient cause. It is not in dispute that the premises let out to the appellant is for running a bar hotel agreeing that the landlord would do everything possible for facilitating such a business. Under the Abkari Act a licensee should have ten lettable rooms. In the instant case, in the tenanted premises there are only four rooms and six more rooms are constructed in the tenant''s own premises and to that property the amenity of access from petitioner''s property was there for some time.

In the above circumstances, we ate of the view that the Accommodation Controller and the Appellate Authority have properly understood the purpose, and meaning of Section 13 of the Act in issuing the direction to the petitioners to restore the facility of the pathway which has been blocked by them by the construction of a compound wall. The appellant is entitled to have the continued enjoyment of such facility so long as the tenancy between him and the writ petitioners subsists.

In the result, we set aside the judgment of the learned single Judge and dismiss the Original Petition. The Writ Appeal is allowed as above.