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B. Madhava Vs. Dr. Lalitha S.N. Bhat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 2730 of 1980-G
Judge
Reported inAIR1982Ker134
ActsKerala Building (Lease and Rent Control) Act, 1965 - Sections 13(6)
AppellantB. Madhava
RespondentDr. Lalitha S.N. Bhat and ors.
Appellant Advocate Chandrasekharan and; Chandrasekhara Menon, Advs.
Respondent Advocate Govt. Pleader and; K.P.V.B. Ejman, Adv.
DispositionPetition dismissed
Excerpt:
- - the 3rd respondent having dismissed the application, and the appeal to the 4th respondent, the district collector, having found to be unsuccessful, the 1st respondent herein moved this court by o. this is a contention that may well be examined by the appellate authority when the appeal is dealt with by it. he would also contend that what was alleged to be amenity enjoyed by the 1st respondent was not really an amenity falling within the mischief of section 13 (1) of the act......and in accordance with law. the petitioner would contend that no such power is conferred on the appellate authority, namely, the district collector.2. now the facts: the 1st respondent-dr. lalitha s. n. bhat claims to be the lessee of the building situated in the western portion of the property comprised in rule s. no. 105/4a of kasba village, kasargod taluk. it would appear that the petitioner was originally the tenant in respect of the building in the eastern portion of that property. the entire property at one time belonged to the 2nd respondent (now deceased), whose legal representatives are supplemental respondents 5 to 8. the petitioner is stated to have purchased the eastern portion of the property including the residential building of which he was a tenant from the 2nd.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The important question of law raised in this writ petition is whether the Appellate Authority exercising power under Section 13 (6) of the Kerala Buildings (Lease & Rent Control) Act, 1965, Act 2 of 1965, for short 'the Act' is competent to remand the matter to the Accommodation Controller for fresh disposal after enquiry and in accordance with law. The petitioner would contend that no such power is conferred on the Appellate Authority, namely, the District Collector.

2. Now the facts: The 1st respondent-Dr. Lalitha S. N. Bhat claims to be the lessee of the building situated in the western portion of the property comprised in Rule S. No. 105/4A of Kasba village, Kasargod Taluk. It would appear that the petitioner was originally the tenant in respect of the building in the eastern portion of that property. The entire property at one time belonged to the 2nd respondent (now deceased), whose legal representatives are supplemental respondents 5 to 8. The petitioner is stated to have purchased the eastern portion of the property including the residential building of which he was a tenant from the 2nd respondent (now deceased). In the eastern portion there was an out-house to which was attached a latrine having three rooms. The contention of the 1st respondent appears to be that the middle room of the three roomed latrine was allowed for the use of the inmates of the house let to her by the 2nd respondent (now deceased). After having obtained the sale of the eastern portion of the property under the registered sale deed dated 9-5-1975, on receipt of a notice from the Municipality for the demolition of the latrines, which according to the Municipality was in a dilapidated condition, the petitioner demolished it. The 1st respondent moved the 3rd respondent, the Accommodation Controller, for getting the amenities of making use of the portions of the latrine restored to her, making the petitioner herein and the 2nd respondent (now deceased) herein as parties to the proceedings. The 3rd respondent having dismissed the application, and the appeal to the 4th respondent, the District Collector, having found to be unsuccessful, the 1st respondent herein moved this Court by O. P. No. 293 of 1977 which was disposed of by this Court by the judgment dated 22-1-1979, a true copy of which is Ext. P-l. The matter was taken up in appeal by the 2nd respondent herein (now deceased) in W. A. No. 72 of 1979, which was disposed of by the Division Bench by the judgment dated 4-7-1979 (reported in AIR 1960 Ker 80), a true copy of which is Ext. P2. The operative portion of the judgment contained in paragraph 7 reads as follows:

'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 observations contained in this judgment, and pass appropriate orders thereon. For that purpose, and for reasons stated, we quash Ext. P2 order..... Counsel for the 4th respondent contended before us that his client cannot be regarded as a 'landlord' and could be made answerable under Section 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.'

Ext. P3 is the order passed by the 4th respondent, the District Collector, on the appeal pursuant to the direction by the Division Bench in Ext. P2 judgment; and it is that order that is under challenge in this writ petition.

3. The counsel for the petitioner submitted that the petitioner had never admitted that the 1st respondent herein had been enjoying the alleged amenity, for the restoration of which she had now moved the Accommodation Controller. He also submitted that the petitioner was not the landlord of the 1st respondent. His contention, therefore, is that accepting the view expressed by the 3rd respondent, Accommodation Controller, earlier, the appeal should have been dismissed without prolonging the life of litigation between the parties by remand. He would also contend that what was alleged to be amenity enjoyed by the 1st respondent was not really an amenity falling within the mischief of Section 13 (1) of the Act. Apart from these submissions made on the merits of the case the counsel would submit that the remand was without jurisdiction, and, therefore, for that reason alone Ext. P3 order is bound to be quashed. In support of his contention that the remand by the 4th respondent is without jurisdiction the counsel relied on Clause (b) of Sub-section (6) of Section 13 of the Act which reads as follows :

'(b) The District Collector shall have the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the matters specified in Clauses (a) to (k) of Sub-section (1) of Section 23 for the purpose of disposing of an appeal under this subsection.'

He drew my attention to the powers enumerated in Clauses (a) to (k) of Sub-section (1) of Section 23 which do not include one for remand.

4. I do not think the contention advanced by the counsel for the petitioner that for the reason that Clause (b) of Sub-section (6) of Section 13 of the Act does not spe-cifically confer a power to remand the matter to the Accommodation Controller, the Appellate Authority is without competence in that regard. In this context it would be advantageous to refer to Clause (a) of Sub-section (6) of Section 13 which reads as follows :

'(a) tenant or landlord aggrieved by an order passed by the Accommodation Controller under this section may within thirty days from the date of receipt of such order prefer an appeal in writing to the District Collector within whose jurisdiction the building in respect of which the order appealed against is passed is situate and he shall pass such orders on the appeal as he may deem fit.' The power of the Appellate Authority under Clause (a) of Sub-section (6) of Section 13 of the Act is very wide; and no inhibition, whatsoever, is attached to it in order to effectuate the provisions of the Act and render justice according to law. The District Collector, the Appellate Authority, is certainly competent to pass such orders as he deems fit and necessary in the circumstances of the case and re-mand the matter to the original author-ity if the circumstances warrant such a course. There might be cases where all the facts necessary for a proper and complete disposal of the matter are not on record. There might be cases where it is necessary to adduce evidence in support of the respective contentions of the parties to do justice between the parties. I do not think that in such cases tha District Collector is not without power to remand the matter to the Accommodation Controller for a proper disposal ac-cording to law and in the light of the directions, if any, that he might give.

5. The other questions urged by the counsel for the petitioner touching the merits of the ease are matters, which, I believe, have not so far been concluded or decided. It is open to the petitioner to urge his contentions on merits, not concluded by Ext. P2 judgment, before the 3rd respondent, Accommodation Controller, when the matter comes up for consideration again as a result of Ext. P3 order of remand. I do not think that on a question of disputed facts the court should render a decision at this stage,

6. For the foregoing reasons the writ petition fails, and is dismissed; however in the circumstances of the case without any order as to costs.


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