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The Church of South Indian Trust Association, by Its Attorneys, Rev. A.J. David and E.J. Edona Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberO.P. No. 367 of 1970
Judge
Reported inAIR1972Ker212
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 4(1) and 4(3)
AppellantThe Church of South Indian Trust Association, by Its Attorneys, Rev. A.J. David and E.J. Edona
RespondentState of Kerala and ors.
Appellant Advocate Kalathil Velayudhan Nair,; V.S. Moothathu,; N.R.K. Nair
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Excerpt:
.....when a building falls vacant and the landlord wants the building on any such ground, the accommodation controller is not entitled to require the building for any of the purposes mentioned in sub-section (3) of section 4, unless he is satisfied that the grounds stated by the tenant are not true. and lie can require the building to be given for any of the purposes mentioned in sub-section (3) of section 4. only if he is satisfied that the grounds on which the claim is made are not true. the counter-affidavit filed by him states that the building was inspected by the revenue inspector, who reported that it was not in need of any repairs and that the petitioner did not require the building for its bona fide need, and that the second respondent rejected the petitioner's prayer to..........and the key of the building would be handed over to the second respondent, the tahsildar and accommodation controller. kozhikode on the same date. on receipt of the above letter, the petitioner wrote to the second respondent, bv its letter ext. p-2 dated 10-1-1970 with a copy to the said executive engineer, stating that the aforesaid building had already been vacated by the tenant, whohad written saying that the building would be surrendered by the tenant to the second respondent on 31-1-1970. that the tenant was under law bound to hand over possession of the building to the petitioner, that the tenant had done serious damages to the building, that it required re-construction in portions and repairs throughout, that the petitioner was seeking legal advice to recover damages from.....
Judgment:
ORDER

M.U. Isaac, J.

1. The petitioner is the Church of South India Trust Association which is a corporation registered under the Indian Companies Act; and it is undoubtedly a religious and charitable institution falling within the ambit of subsection (7) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinatfer referred to as the Act). The petitioner is the owner of a building No. 17/156 situate on the Bank Road, within the Corporation of Calicut. It was outstanding on lease with the Kerala State Electricity Board. The Executive Engineer of the Electrical Division. Kozhi-kode. informed the petitioner, by his letter Ext. P-l dated 8-1-1970, that the building would be vacated on 31-1-1970 and the key of the building would be handed over to the second respondent, the Tahsildar and Accommodation Controller. Kozhikode on the same date. On receipt of the above letter, the petitioner wrote to the second respondent, bv its letter Ext. P-2 dated 10-1-1970 with a copy to the said Executive Engineer, stating that the aforesaid building had already been vacated by the tenant, whohad written saying that the building would be surrendered by the tenant to the second respondent on 31-1-1970. that the tenant was under law bound to hand over possession of the building to the petitioner, that the tenant had done serious damages to the building, that it required re-construction in portions and repairs throughout, that the petitioner was seeking legal advice to recover damages from the tenant and taking measures for reconstruction and repairs of the building and that the petitioner needed the building for its own use. The second respondent replied by his letter Ext. P-3 dated 12-2-1970 as follows:---

'With reference to your letter cited, enquiries were conducted and it was found that immediate repairs are not necessary to the building in question. It is also found that if the waste matter etc. accumulated in the various parts of the building are removed by engaging few coolies the building will be quite fit for occupation. Enquiry also revealed that since the trust is having a pucca huge building for their office at present there is no need for the house in question for the use of the trust. The petition Is therefore rejected.'

This was followed by an order Ext P-4 dated 13-2-1970 alloting the building to the third respondent, the Inspecting Assistant Commissioner of Agricultural Income-tax and Sales Tax. Kozhikode with effect from 13-2-1970 on the existing rent. The allottee was also requested to obtain the key of the building from the petitioner. In the light of Ext. P-4, the third respondent, by his letter Ext. P-5 dated 13-2-1970, Wrote to the petitioner requiring it to hand over the key of the building to him. This writ petition, has been filed to quash Exts. P-3. P-4 and P-5 and for consequential reliefs.

2. Counsel for the petitioner raises two contentions. One is that Ext. P-2 is not a notice under Section 4 (11 of the Act, and that the order Ext. P-4 is bad under law, in so far as receipt of a valid notice under Sub-section (1) of Section 4 is a condition to the exercise of his jurisdiction for all o ting the building for any of the purposes mentioned in Sub-section (3). The second contention is that this is a case where the petitioner would be entitled to Set the building evicted from a tenant on tihe grounds mentioned in caluse (iv) of sub-section (4), and also in Sub-section (7) of Section 11 of the Act and that, therefore, when a building falls vacant and the landlord wants the building on any such ground, the Accommodation Controller is not entitled to require the building for any of the purposes mentioned in sub-section (3) of Section 4, unless he is satisfied that the grounds Stated by the tenant are not true.

3. It is necessary to read Sub-sections (1) and (3) of Section 4 of the Act in order to deal with the first contention. They are as follows:--

'4. Notice of Vacancy.

(1) (a) Every landlord may within fifteen days before completion and shall, within fifteen days after the construction or re-construction of a building intended to be let out or after a building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by release from requisition by the Government or any other competent authority, give notice of the availability or vacancy in writing to the Accommodation Controller. Every tenant shall within fifteen days of his vacating a building occupied by him give notice of the same in writing to the Accommodation Controller :

Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any grounds specified in Sub-section (3), clause (iv) of Sub-section (4) and Sub-sections (7) and (8) of Section 11.

(b) Every notice given under clause (a) shall contain such particulars as may be prescribed.

(2) x x x x x

(3) If within fifteen days of the receipt by the Accommodation Controller of a notice under Sub-section (1) or sub-section (2) the Accommodation Controller does not intimate to the landlord in writing that the building is required for the purpose of the State or Central Government or of any local authority or of any public institution or for the occupation of any officer of such Government or local authority or for the occupation of such class of non-officials as may be prescribed having regard to the importance of their service to society, the landlord Shall be at liberty to let the building to any tenant or to occupy it himself.

(4) x x xxx

(5) x x x x X

(6) x x x x x

(7) x x x x x

(8) x x xxx

It is clear from Sub-section (1) that inthe case of a building which becomesvacant by the landlord's ceasing to occupy it or termination of its tenancy, thequestion of issuing a notice thereunderarises only after the building becomesvacant, and that from that point of time,the landlord has 15 days to give thenotice. In the face of the above clearprovision, it is not possible to accede tothe contention of the learned Government Pleader that there is only an outerlimit for giving tihe notice, and that itcan be given at any time within thatperiod. In other words, notice may be[given even before the building becomes)vacant. There is no harm in giving notice of a probable vacancy; but what the Section requires is notice of an actual vacancy; and the receipt of such a notice is a condition precedent to the exercise of the Accommodation Controller's jurisdiction to allot a building for any of the purposes mentioned in sub-section (3) of Section 4. There is no dispute that the previous tenant vacated the building only on 31-1-1970. Ext. P-2, the letter dated 10-1-1970 sent by the petitioner to the second respondent would not therefore, be notice of vacancy under Section 4 (1) of the Act. It was sent in response to the Electricity Board's letter, Ext. P-l dated 8-1-1970, wherein the Executive Engineer stated that the building would be handed over to the second respondent; and Ext. P-2 seems to have been intended to explain the real position to the second respondent and to request Mm to release the building to the petitioner, in case the Electricity Board illegally handed over possession of the building to the second respondent. The order Ext. P-4, is. therefore, without jurisdiction, and illegal.

4. I shall consider the second contention. In my view, if a landlord, when giving a notice of vacancy under Section 4 of the Act, claims that he needs the building for himself on any of the grounds on which he is entitled to evict a tenant under the Act. the Accommodation Controller is bound to enquire into that matter; and lie can require the building to be given for any of the purposes mentioned in sub-section (3) of Section 4. only if he is satisfied that the grounds on which the claim is made are not true. Otherwise it would mean that the landlord should first hand over the building as required by the Accommodation Controller, and then move the Rent Controller for eviction of the tenant. This will be a farcical procedure. If the landlord has the right to evict a tenant for having the building for his own use on certain grounds, it is plain commonsense that he cannot be liable to lease it out, if such ground exist. It is evident from Ext. P-3 that the second respondent was aware of the said legal position. It states that enquiries were conducted, and that the petitioner's claim to have the building for its own purposes was rejected only after that. The counter-affidavit filed by him states that the building was inspected by the Revenue Inspector, who reported that it was not in need of any repairs and that the petitioner did not require the building for its bona fide need, and that the second respondent rejected the petitioner's prayer to allow the petitioner to have the building for its own purposes, as he was satisfied about the truth of the aforesaid report. Ad-inittedly, neither the second respondent nor the Revenue Inspector has made any enquiries about the matter to the petitioner or to anybody else regarding the truth of the claim made by the petitioner. It was rejected only on the basis of the Revenue Inspector's report. So the statement in Ext. P-3 that enquiries were made before the petitioner's claim was rejected is untrue. Even a copy of the Revenue Inspector's report has not been produced in the case; and the court is not, therefore, in a position to say whether the report disclosed any relevant materials.

5. It is for the landlord of the building to decide whether it needs reconstruction or whether he should have it for his purpose. It is his property; and he is the best Judge on that matter. If a claim is made by the landlord for possession of the building on such a ground, the Accommodation Controller or Rent Controller, as the case may be. is not entitled to say that the landlord need not have it for reasons of his own. All that he is entitled to do is to enquire whether the need is bona fide or whether it is only a pretext not to lease out the building or to evict a tenant, as the case may be. The right to reconstruct a building or to have it for the landlord's own purposes is a very valid right attached to the property. The Accommodation Controller is, therefore, bound to act in a quasi-judicial manner, and decide whether the landlord's claim to have the building for his purposes is sustainable or not, before he passes an order requiring the landlord to hand over the building to a tenant for any of the purposes mentioned in Sub-section (3) of Section 4. To pass such an order without making any enquiries, and even without hearing the petitioner on the matter is an abuse of power. The petitioner has stated in the petition that the building is intended to be used as a hostel for the Malabar Christian College, which seems to be an institution belonging to and managed by the petitioner. The counter-affidavit states that this allegation is an afterthought. This is as irresponsible a statement as his conduct has been in passing the impugned order, Ext. P-4.

6. In the result. I hold that Exts. P-3 and P-4, the orders passed by the second respondent, are without jurisdiction and illegal; and I quash them. Ext. P-5 is only a request by the third respondent in the light of the order Ext. P-4; and it can be ignored. The second respondent will pay the costs of the petitioner.


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