Kerala High Court
Karam Veettil Parukutty Amma vs Muhammedkutty on 3 December, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934
RSA.No. 685 of 2011 ( )
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AS.NO.28/2009 of SUB COURT, TIRUR
OS.NO.157/2008 of MUNSIFF MAGISTRATE COURT,PONNANI
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APPELLANTS/DEFENDANTS:
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KARAM VEETTIL PARUKUTTY AMMA,
D/O.DEVAKI AMMA, W/O.PADMANABHAN, KALADY AMSOM,
KEEZHMURI DESOM, PONNANI TALUK.
BY ADVS.SRI.SAJU.S.A
SRI.JAMSHEED HAFIZ
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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MUHAMMEDKUTTY, S/O.KOYANI,
KALADI AMSOM, KEEZHMURI DESOM, PONNANI TALUK,
PIN- 679 577.
BY ADV. SRI.K.RAMACHANDRAN
SRI.P.RAMACHANDRAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 05-12-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
CR
THOMAS P. JOSEPH, J.
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R.S.A. No.685 of 2011
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Dated this the 3rd day of December, 2012
JUDGMENT
The following substantial question of law is framed for a decision in this second appeal drawn from the judgment and decree of the Sub Court, Tirur in A.S. No. 28 of 2009:
"When the area where a building is situate was originally part of a panchayat which was notified under Sec.1(3) of the Kerala Building (Lease and rent control) Act, (for short, 'the Act'), whether by the subsequent deletion of that area from that panchayat and its inclusion in another panchayat which is not so notified, the Act would not be applicable to that area and the civil court would have jurisdiction to entertain a suit for eviction of a tenant of that building?
2. The respondent/landlord filed RCP No. 17 of 2005 in the Rent Control Court, Ponnani on 19.06.2005 under Secs: 11(2)(b), 11(3), 11(4)(i) and 11(4)(v) of the Act for eviction of the appellant from the shop room situated in Keezhumuri Desom. That area R.S.A. No.685 of 2011 -: 2 :- then formed part of the Tavanur Panchayat. On the strength of a notification issued by the Government based on a request from the Tavanur Panchayat, the Act had been made applicable to the areas within that Panchayat. On 31-07-2006 the Rent Control Court passed an order allowing eviction only under Section 11(2)
(b) of the Act which was liable to be vacated on the appellant/tenant depositing the rent arrears as provided under the law. On 23.07.2005 there was a notification issued by the Government under Sec.4 of the Kerala Panchayat Raj Act, 1994 (for short the "the Panchayat Raj Act") forming a new Panchayat by name, Kalady Panchayat with effect from 01-10-2005. The new Panchayat was formed carving out portions from the adjoining Panchayats including Keezhumuri desom from the Tavanur Panchayat.
3. Aggrieved as the Rent Control Court had not ordered eviction on other grounds urged, the respondent filed appeal to the Appellate Authority on 08.09.2006. Noticing that by that time Keezhumuri Desom where the shop room is situated was brought within the local limits of the newly formed Kalady Panchayat which was not notified under Section 1(3) of the Act, the respondent withdrew the proceeding and accordingly the R.S.A. No.685 of 2011 -: 3 :- rent control appeal was dismissed as withdrawn on 29.09.2008. In the meantime, the respondent terminated tenancy of the appellant by a notice under Sec. 106 of the Transfer of Property Act (for short, "the T.P. Act") and filed O.S. No. 157 of 2008 in the Munsiff - Magistrate's Court, Ponnani on 04.08.2008 seeking eviction. That suit was decreed in favour of the respondent and confirmed by the Sub Court, Tirur in A.S. No. 28 of 2009. It is against that judgment and decree that this second appeal is preferred raising the above substantial question of law.
4. The learned Senior Advocate for the appellant has contended that notwithstanding the formation of the Kalady Panchayat incorporating Keezhumuri desom where the shop room is situate, the notification issued by the Government under Section 1(3) of the Act on the request of the Tavanur Panchayat would remain in force with respect to Keezhumuri desom until that area is de-notified. According to the learned Senior Advocate, the notification issued by the Government under Sec.1(3) of the Act is not with respect to any panchayat or municipality but with respect to the areas mentioned in the notification. Therefore, notwithstanding that Keezhumuri desom is deleted from the Tavanur Panchayat and included in R.S.A. No.685 of 2011 -: 4 :- the newly formed Kalady Panchayat, the notification already issued with respect to the areas coming within Tavanur Panchayat making the provisions of the Act applicable to that area would continue to apply to Keezhumuri desom until de- notified as per a resolution adopted by the Kalady Panchayat. The learned Senior Advocate has placed reliance on the decision in Krishna Iyer Vs. Ramakrishna Iyer (1964 KLT 411). It is argued that the decision of this court in Biyathu V. Abdurahimankutty (1995 (1) KLT 529) distinguishing Krishna Iyer Vs. Ramakrishna Iyer is not good law in so far as the latter decision has not considered the fact that the notification issued under Sec. 1(3) of the Act is not with respect to any Panchayat or municipality but concerned the area notified. It is pointed out that in the whole State of Kerala, the Principal Munsiffs and Additional Munsiffs exercising jurisdiction within their local limits are notified as the Rent Control Courts and therefore, with respect to the buildings situated in Keezhumuri Desom which is now part of the Kalady Panchayat, the Principal Munsiff and Additional Munsiff having jurisdiction over that area could entertain a petition under Sec. 11 of the Act even in the absence of a special notification. It is contended that in the R.S.A. No.685 of 2011 -: 5 :- circumstances, the decision in Krishna Iyer Vs. Ramakrishna Iyer (supra) should be accepted as the correct proposition of law. At any rate, it is contended, since divergent views are expressed by two learned single Judges, the matter requires consideration by a larger Bench.
5. The learned counsel for the respondent has contended that there is subtle distinction between Sec.3 of the Kerala Panchayat Act and Sec.4 of the Panchayat Raj Act since, for alteration or addition of any area in a Panchayat as per the Panchayat Raj Act it needs a resolution of the Panchayat concerned unlike Sec.3 of the Panchayat Act. It is argued that the notification issued under Sec.1(3) of the Act was with respect to the areas coming within the local limits of the Tavanur Panchayat based on a resolution passed by that Panchayat. According to the learned counsel, that resolution will hold good only for those areas so far as it continued to be within the local limits of that Panchayat and once an area is deleted from the local limits of that Panchayat and that area becomes part of a newly formed Panchayat, it is the privilege and prerogative of the newly formed Panchayat, to decide whether the areas coming within that Panchayat including the area deleted from R.S.A. No.685 of 2011 -: 6 :- the former Panchayat should be governed by the provisions of the Act. It is argued that in the absence of any resolution passed by the newly formed Panchayat and a notification issued by the Government under Sec.1(3) of the Act, provisions of the said Act cannot be extended to the area brought within the newly formed Panchayat. The learned counsel has argued that the learned Judge while deciding Krishna Iyer Vs. Ramakrishna Iyer has not adverted to the proviso to Sec.1(3) of the Act which made the whole difference. In the circumstance there is no reason to differ from the view taken by the later decision in Biyathu V. Abdurahimankutty (supra) with distinguished Krishna Iyer Vs. Ramakrishna Iyer.
6. It is admitted that the building is situate in Keezhumuri desom. That area formerly was within the Tavanur Panchayat. As per a resolution passed by that Panchayat, the Act was made applicable to the areas within that Panchayat. Later, the Kalady Panchayat was formed incorporating Keezhumuri desom as well. It is admitted that neither has the Government de-notified Keezhumuri desom from the application of the Act nor has the provisions of the Act been extended to the Kalady Panchayat as per a notification issued by the Government under Section 1(3) R.S.A. No.685 of 2011 -: 7 :- of the Act based on a resolution of that Panchayat.
7. Section 1 of the Act is as under:
"(1) Short title, extent, application and commencement -- This Act may be called the Kerala Buildings (Lease and Rent Control) Act 1965.
(2) It extends to the whole of the State of Kerala.
(3) it applies to the areas mentioned in the schedule and the government may, by notification in the Gazette, apply all or any of the provisions of this Act to any other area in the state with effect from such date as may be specified in the notification, and may, by like notification, cancel or modify such notification or withdraw the application of all or any of the provisions of this Act from any area mentioned in the schedule:
Provided that no such notification shall be issued unless it is supported by a resolution passed by the local authority or authorities, if any, of the areas affected by the notification." (4) It shall be deemed to have come into force on the first day of April 1965.
Sub-sec 3 of Section 1 of the Act enables the Government to apply, by a notification in the gazette all or any of the provisions of the Act or cancel or modify such notification or withdraw the application of all or any of the provisions of the Act from any area with effect from such date as specified in the notification. The proviso to the said provision says that no such R.S.A. No.685 of 2011 -: 8 :- notification shall be issued unless it is supported by a resolution passed by the local authority or authorities if any of the areas affected by the notification.
8. Sec.3 of the Panchayat Act says that the government may, by notification in the gazette,
a) declare any village or group of adjacent villages or portion thereof to be a panchayat area for the purpose of the Act and specify the name and head quarters of the Panchayat or
b) exclude from a panchayat area any village or portion thereof comprised in it; or
c) include in a Panchayat area any village or portion thereof; or
d) cancel a notification issued under Clause (a) or alter the name and head quarters of the panchayat as notified under the said clause. Unlike the said provision, Sec.4(2) of the Panchayat Raj Act says that the Government may, at the request of the panchayat concerned, or after consultation with the Panchayat and after previous publication of the proposal by notification,-
a) increase the area of the Village Panchayat by including within such Panchayat area any village or group of villages
b) diminish the area of any village panchayat by excluding from such Panchayat area any village R.S.A. No.685 of 2011 -: 9 :- or group of villages
c) alter the head quarters of the panchayat at any level; or
d) alter the name of the panchayat at any level.
9. The distinction that could be drawn from Sec.3 of the Panchayat Act and Sec.4(2) of Panchayat Raj Act is that if in the former case, it was within the power of the Government and its prerogative to do the acts referred to in Sec.3, after Sec.4(2) of the Panchayat Raj Act come into force, it requires a resolution of the panchayat or consultation with the panchayat for the Government to do so. The Government could not automatically exercise that power without a resolution of the panchayat or without consulting the panchayat. Therefore, when the Kalady Panchayat was formed, Keezhumuri desom was deleted from the Tavanur Panchayat either at the request of that Panchayat or after consulting it. The decision in Krishna Iyer V. Ramakrishna Iyer was rendered before the Panchayat Raj Act came into force.
10. I must also notice that going by Sec. 1(3) of Act apart from the areas already referred to in the Act if the Government wanted to apply all or any of the provisions of that Act to any other area in the State, it requires a resolution of the local R.S.A. No.685 of 2011 -: 10 :- authority concerned as the proviso to Sec.1(3) of the Act makes it abundantly clear. No doubt, for a cancellation or modification of the notification or withdrawal of any or all of the provisions of the Act from any area also, it required a similar resolution of the local authority and a notification by the Government. The cancellation, modification or withdrawal referred to in Sec.1(3) of the Act is of the notification made with respect to the area mentioned in the schedule of the Act and of the notification issued as per resolution of the local authority of that area which continued to remain within the local limits of the local authority concerned and notified earlier. The cancellation, modification or withdrawal referred to in Sec.1(3) of the Act has no application when an area from a notified local authority is deleted from that local authority and becomes part of another local authority concerning which no notification has been issued.
11. It is relevant to refer to the notification issued by the Government under Sec.1(3) of the Act for Tavanur Panchayat. It is thus;
" S.R.O. No. 313/78 whereas the Tavanur Panchayat has in its resolution dated the 6th May 1976, requested that the provisions of the Kerala Buildings (Lease and R.S.A. No.685 of 2011 -: 11 :- Rent Control ) Act, 1965 shall be applied to that Panchayat area; now, therefore, in exercise of the powers conferred by sub-section (3) of Section 1 of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Government of Kerala hereby apply all the provisions of the said Act to the Tavanur Panchayat area in the Malappuram District with effect from the date of publication of the notification in the gazette (Notification No.62942/E2/75/PW & E dt. 15.12.77 in K.G. No.15 dt.11.04.1978)."
From the above notification it is clear that the Tavanur Panchayat wanted the provisions of the Act to be applied to all areas within its local limits and the Government acceded to that request. It is not as if for Keezhumuri desom alone, as requested by the Tavanur Panchayat the Government has issued a notification. The notification issued concerning Tavanur Panchayat was applicable to Keezhumuri desom only as that area came within the local limits of the Tavanur Panchayat. Once that area ceases to be part of the Tavanur Panchayat, the notification issued for the areas within that Panchayat ceases to have effect. As observed from Sec.4(2) of the Panchayat Raj Act, it is either R.S.A. No.685 of 2011 -: 12 :- as requested by or after consulting the Tavanur Panchayat also that Keezhumuri desom was deleted from that Panchayat and included in the newly formed Kalady Panchayat. Hence the notification to the extend it concerned Keezhumuri desom ceased to be effective when that area was deleted from the Tavanur Panchayat. If the argument of the learned Senior Advocate were to be accepted, it would follow that whatever notifications had been issued in respect of the areas within the Tavanur Panchayat on the request of that Panchayat at a time when Keezhumuri desom was within that Panchayat should continue to apply to Keezhumuri desom also even after it was deleted from the Tavanur Panchayat and it formed part of the Kalady Panchayat (unless there is a de-notification), along with similar notifications applicable to the Kalady Panchayat. As per the proviso to Sec.1(3) of the Act, the notification issued by the Government is as per the wish of the local authority expressed in its resolution. Once an area is deleted from the local limits of a local authority, the writ of that local authority no longer runs over the area deleted. So much so, the notification issued under Sec.1(3) of the Act ceases to apply so far as the deleted area is concerned. Once that area forms part of another local authority, R.S.A. No.685 of 2011 -: 13 :- that area becomes subject to the notification if any issued with respect to that local authority unless that local authority decides otherwise and the Government accedes to that decision. If the provisions of the Act has not been extended to the newly formed local authority, it is within its privilege and prerogative to decide whether the Act should be applied to that local authority or any part of it, or not. The notification has to be understood taking into account the relevance of the background in which it was issued.
12. In Krishna Iyer Vs. Ramakrishna Iyer, the learned Judge, with respect I may say, has not considered the effect of the proviso to Sec. 1 (3) of Act. The effect of non-consideration of the proviso to Sec.1(3) of the Act in that decision was specifically considered in the later decision in Biyathu V. Abdurahimankutty. In the light of the discussion made above, I prefer to follow the decision in Biyathu V. Abdurahimankutty.
13. So far as the request for referring the question to a larger Bench is concerned, since the later decision has considered and distinguished the former decision for good reason and I have preferred to follow the later decision, a R.S.A. No.685 of 2011 -: 14 :- reference as requested is not necessary. I hold that when an area where a building is situate was originally part of a Panchayat which was notified under Sec.1 (3) of the Act is deleted from that Panchayat and included in a Panchayat which is not so notified under the said provision, the Act would have no application to such area and the civil court would have jurisdiction to entertain suits for eviction of tenants of buildings situated in that area
14. The respondent has validly terminated tenancy of the appellant by a notice under Sec. 106 of the T.P. Act. The trial and first appellate court found that the respondent is entitled to get eviction of the appellant from the shop. That finding involves no substantial question of law as well.
The second appeal fails. It is accordingly dismissed. No cost.
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THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge