Pradeep Naick vs Accommodation Controller and Goerge D. Kattil

Pius C. Kuriakose, J.—Under challenge in this writ petition filed under Article 226 of the Constitution is Ext.P10 order. Under Ext.P10 order, the Accommodation Controller, considering the petition filed by the party Respondent u/s 17(2) of the Kerala Building (Lease and Rent Control) Act, has directed the landlords to attend the necessary maintenance works u/s 17(2) of the Act. Ext.P10 concededly is not appeasable under the provisions of the Act 2 of 1965. Ext.P10 is challenged on various grounds.

Smt. K.G. Bindu, learned Counsel for the Petitioner submitted before us that Section 17(2) of Act 2 of 1965 will enable the Accommodation Controller to direct the landlord to carry out periodical maintenance and repair only when he is satisfied that the landlord has neglected to carry out periodical maintenance and repairs in spite of the request in that regard by the tenant. In the present case, the necessity to carry out repairs to the building arose out of the act of misuser of the building. The learned Counsel submitted that, invoking the Section 11(4)(ii) of Act 2 of 1965, the landlord moved the Rent Control Court for evicting the 2nd Respondent. The Rent Control Court after enquiry found that the 2nd Respondent had used the building in such a manner as to reduce the value and utility of the building materially and permanently. Accordingly, the Rent Control Court ordered eviction. The Rent Control Appellate Authority considered the appeal preferred by the second Respondent. After re -appreciating the evidence, the Appellate Authority also concurred with the findings of the Rent Control Court and confirmed the order of eviction. The order of eviction was set aside by this Court on a revision filed by the 2nd Respondent u/s 20 and Ext.P3 is the order of this Court. Ext.P3 order has not become final. Against Ext.P3, SLP No. 6613/2010 was filed by the Petitioner before the Supreme Court. The Supreme Court ordered notice on the same and the second Respondent has entered appearance before the Supreme Court in that case. That case stands posted before the Supreme Court on 16/8/2011. The endeavour of the 2nd Respondent is to renovate the building extensively so as to make it appear before the Supreme Court that factually also the condition of the building is perfect. Allowing Ext.P10 be implemented , it will cause prejudice to the Petitioner landlord in his case before the Supreme Court.

Sri. K. Subashchandra Bose learned Counsel for the 2nd Respondent would oppose all the submissions of Smt. Bindu. According to Mr. Subashchandra Bose unless Ext.P10 is allowed to be implemented , the building will not stand on going monsoon. He submitted further that unless at least roof of the building is allowed to be repaired and sweepage of rain water is prevented, it will not be possible for the tenant to carry on his business. The resulting situation will be that in spite of Ext.P3, the 2nd Respondent will not be able to conduct business and will be virtually out of the building. According to Mr. counsel, if the present situation is allowed to continue, the same will be dangerous to the employees of the 2nd Respondent and to his customers. In reply, Smt. Bindu submitted that kerosene business has been wound up by the 2nd Respondent and that he is now thinking in terms of turning to business in the various products of Airtel cellular company.

Responding to a querry put up by us, Mr. Subashchandra Bose submitted that the second Respondent is all willingness to carry out all repairs necessary for the building for preventing sweepage of rain water and for preserving the building and that the 2nd Respondent will not claim any reimbursement or adjustment on account of the expenses incurred. According to Smt. Bindu, the monthly rent of Rs. 2,000/- fixed in the year 2000 is ridiculously low for the scheduled building which has situated in a commercially very important area of the Kollam city. According to her, if the building is let out today, minimum Rs. 9000/-mensem will be received. Mr. Subashchandra Bose also fairly submitted before us that his client will be ready to pay Rs. 4,000/-by way of monthly rent subject to the regular fixation of fair rent at the option of either party.

Having considered the rival submissions addressed at the Bar, we are of the view that Ext.P10 can be sustained and the writ petition can be disposed of issuing the following directions;

i). The 2nd Respondent is permitted to carry out all repairs found necessary by him for preserving the building and also for the conduct of business in the building. The expenses incurred shall be met by the 2nd Respondent himself who will not be entitled to claim any reimbursement or adjustment from the Petitioner.

ii). The rent payable by the 2nd Respondent to the Petitioner for the building is refixed with effect from 1/8/2011 at Rs. 5,000/- per month.

iii). We make it clear that this refixation is tentative and if either party is aggrieved, it is open to them to move the Rent Control Court for regular fixation of fair rent u/s 5. Till fair rent is fixed, the second Respondent shall pay the rent at the rate of Rs. 5,000/- per month.

iv). It is made clear that the permission granted under this judgment to the 2nd Respondent for carrying out repairs is without prejudice to the rival contentions in the case presently pending before the Supreme court. We clarify that what is permitted under this judgment is only repairs to the building and not structural alterations .