K.N. Kesava Pillai vs K.C. Paulose and Others

K.T. Thomas J.

Petitioner is the tenant of a building which is sought to be reconstructed by the landlord. The Rent Control Court passed an order of eviction for the ground envisaged in Sec. 11 (4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ''the Act''). The Appellate Authority confirmed the order and the learned District Judge, in, revision, did not interfere. In this Original Petition the petitioner has contended, among other things, that the High Court should have been made the revisional authority and the District Court should have been made the appellate authority under Secs. 20 and 18 of the Act respectively It is prayed that a writ of mandamus to be issued against the State of Kerala for issuing notification investing the powers of the Appellate Authority on the District Judge.

Learned Government Pleader was directed to get instructions from the Government as to whether any request has been made by the High Court and the High Court Advocates'' Association to confer the appellate powers on the District Judge under Sec. 20 of the Act. A statement has been filed by the Government. After referring to the proposal made by the High Court and the suggestions made by Sri. G. Viswanatha Iyer, senior advocate of the Supreme Court, Sri. K. Chandrasekharan, advocate of this Court and the Advocate General, the Government have decided to introduce a Bill in the Legislative Assembly for the purpose of incorporating necessary provisions to empower the District Court as the Appellate Authority in place of subordinate court and to confer revisional powers of the High Court. The aforesaid stand adopted by the Government is hereby recorded.

Learned counsel for the petitioner next contended that the landlord has not produced a plan for reconstruction of the building and hence no eviction on the ground under Sec. 11(4)(iv) of the Act should have been granted. The aforesaid sub-clause reads thus:- "If the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required and the ability to rebuild and if the proposal is not made as a pretext for eviction". (Three provisos to the Sub-clause are omitted as not relevant). No doubt that the landlord must have a plan and the Rent Control Court must be satisfied of that fact A contention has been raised that the need for a plan arises only if such a plan is required In support of the said contention emphasis is made to the following words in the sub-clause: "The plan and licence, if any required". The parenthetical clause has obviously reference to the word "licence" precedes the clause, which means that the Rent Control Court need be satisfied of the licence only if a licence is required by law. It cannot be understood that the necessity for a plan also would depend upon any legal obligation to have such plan for the landlord to reconstruct the building. Unless the Rent Control Court is satisfied that the landlord has a plan, an order of eviction cannot be granted. But if the Rent Control Court does not say in so many words that he is satisfied of the existence of a plan it does not necessarily mean that no satisfaction has been arrived at. In this case the landlord, when examined as P.W. 1 has said that he had an estimate prepared for reconstruction of the building. That is not challenged by the tenant. In other words, the parties proceeded on the assumption that the landlord has a plan. That may be the reason why the tenant has not taken up a ground of want of plan either when the appeal was filed before the Appellate Authority or when the revision was filed before the revisional authority. I think it is too late in the day for the tenant to take up that point that the landlord does not have a plan for reconstruction.

The right of the tenant to have the reconstructed building allotted to him has been safeguarded by the Rent Control Court and the petitioner does not have a grievance on that score. Learned Counsel for the petitioner lastly made a plea that the tenant may be allowed to remain in the building for six months more. It is said that he is conducting a tea shop business therein in a small scale and be was doing the business in this building for more than 40 years. In view of the monsoon period and also in view of the fact that he is doing tea shop business in a small way in the same building for over 40 years. I am inclined to grant the time prayed for, on condition that the petitioner shall give an undertaking in the execution court that he would vacate from the tenanted building on or before the expiry of the period of six months from today. If the petitioner does not give any such undertaking, he shall not be entitled to the benefit of this provision.

Original Petition is disposed of in me above terms.