Biyathu vs Abdurahimankutty and Others

M.M. Pareed Pillay, C.J.—Revision petitioner is the decree-holder. The suit filed by her (O.S.363 of 1988) for eviction on the ground of arrears of rent was decreed in her favour. While delivery of the property was sought in execution, it was resisted mainly on the ground that the Kerala Buildings (Lease and Rent Control), Act, 1965 has been made applicable to the area where the property is situated and hence the Executing court has no jurisdiction to evict the respondents. The decree schedule property was situated in a part of Vythiri Panchayat where the Act was made applicable with effect from 1-5-1971. Vythiri Panchayat was bifurcated and a new panchayat viz. Pozhuthana Panchayat was formed. Portion of Vythiri Panchayat and that of another Panchayat constitute the Pozhuthana panchayat. Contention of the revision petitioner is that the Act has not been made applicable to Pozhuthana panchayat and merely because a portion of Vythiri Panchayat forms part of the newly constituted Panchayat the Act would not apply to that area. Case of the respondents is that formerly the decree schedule building was in Vythiri panchayat and though it is now in Pozhuthana Panchayat the Act would still apply.

Section 1(3) of the Act states that it applies to the areas mentioned in the Schedule and the Government may, by notification in the Gazette, apply all or any of the provisions of the Act to any other area in the state with effect from such date as may be specified in the notification, and may, by like notification, cancel or modify such notification or withdraw the application of all or any of the provisions of the Act from any area mentioned in the Schedule. From a reading of Section 1(3), it can be discerned that the Act applies to the areas mentioned in the Schedule. In Vythiri Panchayat the Act has been made applicable as per Notification No. 28199/82/70 P.D. dated 16-4-1971 of the Kerala Gasette dated 27-4-1971. In the notification it is stated that the Act would apply to the area within the jurisdiction of the Vythiri panchayat in Kozhikode District. When a particular area is carved out and removed from Vythiri Panchayat and that area forms part of Pozhuthana Panchayat, it would not be possible to hold logically that the aforesaid area continues to remain in'' the former panchayat. In other words, the area of Vythiri Panchayat which is at present in Pozhuthana Panchayat can no longer be considered as part of Vythiri Panchayat at all.

As it is always open to the government by notification in the Gazette to apply all or any of the provisions of the Act to any other area, Pozhuthana panchayat can also well be brought in as an area where the provisions of the Act would apply. Proviso to Section 1 (3) is to the effect that no such notification shall be issued unless it is supported by a resolution passed by the local authority or authorities, if any, of the areas affected by the notification. The proviso throws sufficient light to a situation where at the instance of the local authority or authorities the area could be brought under the notification u/s 1(3). For application of all or any of the provisions of the Act notification by the government is indispensable. But the government can issue notification only on the basis of the resolution passed by the local authority. Thus, the position is clear that when a portion of a panchayat where the Act applies is taken off from that panchayat to form a new panchayat, merely because the Act applies to that area there will not be any automatic application of the Act to the newly constituted panchayat. For application of the Act notification by the government is necessary and the Government can act only on the strength of the resolution passed by the local authority. In the absence of any such resolution and government''s action pursuant to it for notifying the area coming within the provisions of the Act, it cannot be said that with regard to a portion of Vythiri Panchayat now within Pozhuthana panchayat the Act would automatically apply. If such contention of the respondents is accepted, it would read to a really anomalous position whereby within a portion of Pozhuthana panchayat the Act would apply and to another portion which has been carved out from Vattapoyil Panchayat the Act would not apply.

Section 1(3) postulates that the Act applies to the areas mentioned in the Schedule. Vythiri panchayat being notified under the Act would be governed by the Act. But the portions that have been taken out of that panchayat undoubtedly cease to be part of that panchayat. Once a new panchayat is formed, it is for that panchayat to pass resolution calling upon the Government to have necessary notification making the Act applicable to that panchayat. Executive Officer of the Pozhuthana Panchayat examined as R.W.I deposed before the Court that the Act has not been made applicable to Pozhuthana Panchayat. Ext. A-1 certificate issued by him also evidences that fact. As Section 1(3) notification has not been issued to extend the Act to Pozhuthana panchayat, it is not possible to accept the contention of the respondents that the Act would apply with all force in that portion of Pozhuthana panchayat which was carved out from the Vythiri Panchayat where the Act was made applicable. The Executing court relied on Krishna Iyer V. Ramakrishna Iyer (1964 K.L.J. 715) where it has been held that subsequent inclusion or exclusion of any area in or from a panchayat would not affect the applicability of the Act to the area so included or excluded. In above decision, the proviso to Section 1(3) of the Act was not considered. As Section 1(3) and the proviso make the position abundantly clear that notification in the Gazette by the government is necessary to include any area to come within the ambit of the Act and as no resolution has been passed by Pozhuthana Panchayat for Government''s action for that purpose, the finding of the munsiff that in view of the Act prayer of the revision petitioner for delivery of the decree schedule property cannot be allowed is unsustainable.

The impugned order is set aside and E.P. 294 of 1990 stands allowed. Executing court is directed to effect delivery of the property to the revision petitioner C.R.P. is allowed with no order as to costs.