Kerala High Court
Nizzar Rawther vs Varghese Mathew And Ors. on 3 July, 1991
Equivalent citations: AIR1992KER312, AIR 1992 KERALA 312, (1991) ILR(KER) 3 KER 514, (1991) 2 KER LJ 178, (1991) 2 KER LT 223, (1991) 2 RENCJ 638, (1992) 1 RENCR 411
ORDER Padmanabhan, J.
1. First respondent is the landlord of a building, having six rooms let out to six tenants. He filed six rent control petitions against them for eviction. Though the rent control Court ordered eviction on the grounds of bona fide need for own occupation and bona fide need for reconstruction, appellate and revisional authorities confirmed the order only on the latter ground. Petitions were filed in 1967, but final orders in revisions were only in 1981. In 1989, first respondent filed six execution petitions for getting eviction. Petitions were contested on various grounds. All those grounds were rejected and delivery was ordered, which was confirmed in revision.
2. In these original petitions filed under Article 227 of the Constitution, one of the grounds raised before the execution Court and revisional authority alone was canvassed.
3. In 1990, consequent on the formation of Pathanamthitta district, the area, where the building stands, became a municipality. Till then, it was a panchayat area and a licence for reconstruction was not necessary. Plan of the proposed building alone was, therefore, produced in the rent control proceedings and not the licence. Kerala Building Rules, 1984, framed under Section 344 read with Section 222 of the Kerala Municipalities Act, became applicable. Since eviction was ordered without a licence being obtained and produced, it was contended that the order became in-executable and it must be deemed to have been statutorily discharged within the meaning of Section 47 of the Code of Civil Procedure read with Section 14 on the Rent Control Act. Execution Court and the revisional Court rejected this contention.
4. Learned counsel for the petitioners sought to support this contention relying on the decisions in Karunakaran v. Janaki Amma, (1987) 2 Ker LT 1010 and Vidya Sagar v. Sudesh Kumari, AIR 1975 SC 2295. First decision dealt with a decree which imposed mutual obligations and said that when one is conditional on the performance of the other, performance will not be ordered, unless the party seeking execution not only offers to perform his part, but also satisfies the execution Court that he is in a position to do so when objection is raised. Here, we are not concerned with mutual obligations by the order which are conditional. Latter decision only considered a pre-emption decree, which became in executable by a subsequent legislation. No such contingency occurred in this case.
5. Here, only requirement for ordering eviction under Section 1 l(4)(iv) of the Buildings (Lease and Rent Control) Act (Act, for brevity) is the satisfaction of the Court on the pleadings and evidence that the building in such a condition that it needs reconstruction and the landlord bona fide requires to reconstruct the same. For satisfaction of the bona fide requirement, Court must be shown that lie has the plan and licence, if they are required for reconstruction. Other satisfactions are that he has the ability to rebuild and the proposal is not made as a pretext for eviction. All these satisfaction are insisted only to ensure that the landlord bona fide requires to reconstruct the building and he is desirous, willing and capable of doing so. Plan and licence need be shown for such satisfaction only if they are legally required for the reconstruction. That is clear from the words "if any required". In this case, plan and licence were not required for the reconstruction. Yet, plan was produced because landlord himself could have prepared and produced it without any order from any source. Licence could not be produced because it was unnecessary and there was no provision for issuing or getting it.
6. Even without a plan and licence, when they are not required, rent control authorities could have had the satisfaction and ordered eviction. That is because basis of the order is not the plan and licence, but satisfaction of the authority on relevant materials. When eviction was ordered on that satisfaction, that order cannot become a nullity or inexecut-able, so far as eviction is concerned, simply because subsequent developments made plan and licence necessary pre-requisites for reconstruction. Question of reconstruction will arise only after eviction, when landlord, who gets possession, is thereby enabled to reconstruct. That is clear from the first proviso to Section ll(4)(iv), which says that if landlord evict the tenants and then fails to reconstruct, he will be liable to penal consequences. Building Rules requiring plan and licence for reconstruction, which became applicable subsequently, cannot have the effect of nullifying the order or making it in execut-able or operating as a statutory discharge of the order. Tenant, who is liable to surrender under the order, cannot raise such contentions for the purpose of avoiding eviction. Satisfaction is only of the rent control authority and the person who is to satisfy the authority is landlord. Tenant's right is only to challenge and disprove the need before eviction is ordered.
7. After getting eviction, landlord is having the liability to rebuild and accommodate the evicted tenant, as directed in the order. For that purpose, provisions are made in the second and third provisos. After ordering eviction, Court is having power to issue directions regarding reconstruction and to safeguard the option of the tenant to get the reconstructed building or any portion of the allotted to him. Failure of compliance by landlord to give effect to such orders will meet with consequences also. If plan and licence have become necessary for reconstruction, after delivery, Court can order landlord to comply with those provisions and direct him to reconstruct. Decision in Abdul Khader v. Abdul Rahiman Master, (1987) 2 Ker LT 945 is authority for the eviction that even in a case where licence is a pre-requisite for ordering eviction, expiry of the term of licence,' on account of delay in ordering eviction, is no ground for rejection of the petition. Question of actual reconstruction will arise only after eviction. Present contentions are raised mala fide, to thwart or postpone eviction. Petitions were filed in 1967 and we are now in 1991, after 24 years.
8. Execution Court and the revisional Court were within their limits in rejecting the contentions. It was unnecessary for the petitioners to approach this Court to invoke its power of superintendence under Article 227 of the Constitution, which is only concerned with keeping the subordinate tribunals within their bounds and not to correct errors or mistakes possible within the limits of jurisdiction. If they were honest and interested only in safeguarding their rights, they could have surrendered the premises without any objection and then moved the rent control Court for appropriate orders or directions, if the landlord failed to reconstruct or accommodate them, if they are entitled to accommodation.
9. All the six petitions are, therefore, dismissed. No costs.