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Konath Karunakaran Nambiar Vs. Dr. Lalitha S.N. Bhat and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 72 of 1979
Judge
Reported inAIR1980Ker80
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 13(4)
AppellantKonath Karunakaran Nambiar
RespondentDr. Lalitha S.N. Bhat and ors.
Appellant Advocate K.P.V.B. Ejman, Adv.
Respondent Advocate S. Narayanan Poti, Adv.,; Govt Pleader,; T.P.K. Nambiar
DispositionAppeal allowed
Excerpt:
.....and adjust the cost of construction against the rent payable to the appellant, and having failed to do so. this is a contention that may well be examined by the appellate authority when the appeal is dealt with by it......appellant was responsible for the destruction of the amenity. with this expression of opinion, the learnedjudge directed the accommodation controller to pass appropriate orders.5. section 13 (4) of the kerala buildings (lease and rent control) act, reads :'13. landlord not to interfere with amenities enjoyed by the tenant:-- xx xx xx xx (4) if the accommodation controller on enquiry 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.....
Judgment:

Gopalan Nambiyar, C.J.

1. This appeal raises an interesting question. After hearing the counsel in the case, we feel that this appeal must be allowed and the judgment of the learn-, ed Judge set aside.

2. The appeal is by the 4th respondent in the writ petition which was allowed by the learned Judge quashing and setting aside Exts. P-1 and P-2 orders of the Accommodation Controller and the Appellate Authority, and directing the former to consider and dispose of the application for restoration of amenity in the light of the expression of opinion made by the learned Judge that the appellant must be regarded as responsible for cutting off the amenity, and liable to restore the same. The appellant is rightly aggrieved by this adjudication of his liability by the learned Judge with a direction to the Accommodation Controller to implement the same by a consequential order.

3. The appellant was the owner of the building in question, in respect of which an application for restoration of amenity was made to the Accommodation Controller by the 1st respondent herein, the writ petitioner. A rough sketch of the plot and building has been provided to us along with the counter affidavit of the 3rd respondent in the writ petition (the 4th respondent herein). The building in question bears number 105/4B of Kasba Village Kasaragod Taluk. The rough sketch indicates that the Kasaragod-Mangalore road abuts it on the west. As we proceed from the west to the east, we see a hospital building somewhere in the centre of the property and further east of it and almost touching the eastern extremity of the plot there is a residential house of Madhava (the 4th respondent herein), who is a tenant of the appellant, and an outhouse to the south of it in which the appellant himself was living. To the east of this last-named structure, namely, the outhouse, there is a three-roomed latrine. One of these was used by the appellant, another (the middle one) by the 1st respondent, and the 3rd, by the 4th respondent. The out-house which we have referred to stands in front of Madhava's residence. The eastern portion of the property, about 12 1/2 cents in extent, was sold by the appellant to the 4th respondent. The 4th respondent thereafter seems to have put up a new latrine for his house, and demolished the three-roomed latrine. This led to a complaint from the 1st respondent, the tenant of the Hospital building, who was entitled, by the terms of the tenancy, to the use of one of the rooms in the three-roomed latrine (the middle room), for restoration of amenity under Section 13(4) of the Kerala Buildings (Lease and Rent Control) Act. 1965. The Accommodation Controller dismissed the application holding that the destruction or the withholding of the amenity in question was by the 4th respondent herein who was the transferee of the eastern portion of the property from the appellant and that he had done the demolition in response to a notice issued from the Municipality that the latrine should be destroyed as it had become a danger to the public. The Accommodation Controller was also of the view that the appellant could not be directed to retsore the amenity as he had not either destroyed the amenity or withheld the same within the meaning of Section 13 (4). The 1st respondent peferred an appeal to the Appellate Authority (The District Collector). That authority sustained the order of dismissal passed by the Accommodation Controller but on a totally different ground. That authority pointed out that the 1st respondent herein, namely, the writ petitioner had, in response to his application to the Municipal Commissioner, been permitted to put up a two-roomed latrine, and to adjust the cost of construction from the rent payable by him and had failed to avail himself of the benefit thus allowed. In view of this, the appellate authority was of the opinion that there was no force in his appeal, as the appellant had failed to avail himself of this beneficial order in his favour. Ext. P-1 is a copy of the Accommodation Controller's order and Ext. P-2 is the copy of the appellate authority's order. It was to quash these two orders that the writ petition was filed.

4. The learned Judge took the view that the appellant had, by his transfer and sale of one section of the property to the 4th respondent, made it possible for the latter to destroy and demolish the amenity in question, namely, the middle room of the latrine, and therefore the appellant was responsible for the destruction of the amenity. With this expression of opinion, the learnedJudge directed the Accommodation Controller to pass appropriate orders.

5. Section 13 (4) of the Kerala Buildings (Lease and Rent Control) Act, reads :

'13. Landlord not to interfere with amenities enjoyed by the tenant:--

XX XX XX XX

(4) If the Accommodation Controller on enquiry 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 is clear that as against the appellant an order for restoration of amenity can be passed only if it is found that he had either 'cut off' or 'withheld' the same. There is no finding by the Accommodation Controller, or for that matter by the appellate authority, that the appellant had cut off or withheld the amenity; and on the facts detailed and noticed, it seems impossible to so find. We are not able to endorse the view of the learned Judge that by transferring the property to the 4th respondent the appellant had made it possible for the latter to demolish the amenity and therefore the appellant must be held responsible for the demolition of the latrine. The causal connection between the transfer or sale and the demolition seems to be feeble, if not nil. The appellant has the fundamental right to dispose of his property and for wanton acts of the transferee like the one here in question, we have not been told how the appellant can be held responsible. This part of the reasoning of the learned Judge was not supported by counsel for the 1st respondent appearing before us. We are clear that no grounds have been made out to make the appellant liable or responsible for the destruction of the amenity or the withholding of the same tinder Section 13 (4) of the Act.

6. But counsel for the 1st respondent strongly pressed before us that he is entitled to relief as one aggrieved, and that as far as he is concerned, he is only anxious to see that the amenity is restored, and itmattered little whether it was ordered to be done by the appellant or the 4th respondent. It was pointed out that, as noted in Ext. P-1 order, the defence pleaded by the 4th respondent was that the demolition was for 'just and sufficient cause', viz., in view of the notice issued to him by the Kasaragod Municipality to demolish the latrine. The terms of the notice have been set out in Ext. P-1 order. It is seen that the Municipality directed the 4th respondent to provide a two-seater flush-out latrine after demolition of the existing insanitary latrine within one month of the notice. Counsel for the 1st respondent would contend that it would not be open to the 4th respondent to plead 'just and sufficient cause' or excuse, and to escape from liability under Section 13 (4) of the Act, so long as he had not complied in full with the requirements of the notice. We are not expressing ourselves on the merits of this contention; but we feel that this aspect of the matter should certainly be examined by the appellate authority before whom the 1st respondent had preferred the appeal, which was dismissed on an altogether different ground, namely, of the 1st respondent having been permitted by the Municipal Commissioner to put up a two-roomed latrine and adjust the cost of construction against the rent payable to the appellant, and having failed to do so.

7. In the circumstances, we feel that the appeal should be allowed and the judgment of the learned Judge modified. The expression of opinion by the learned Judge that the appellant is responsible for the cutting off or the withholding of the amenity will stand discharged. In modification of the judgment of the learned Judge, while sending back the appeal to the appellate authority for fresh consideration, we would direct the appellate authority to take back the appeal preferred to it on file and dispose of the matter in accordance with law and in the light of the observation contained in this judgment, and pass appropriate orders thereon. For that purpose, and for reasons stated, we quash Ext. P-2 order. There will be no order as to costs.

8. Counsel for the 4th respondent contended before us that his client cannot be regarded as a 'landlord' and could not be made answerable underSection 13 (4) of the Act. This is a contention that may well be examined by the appellate authority when the appeal is dealt with by it. We shall not be understood as having expressed ourselves on the merits of the contention.


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