IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 30052 of 2011(F) -------------------------- PETITIONER(S): --------------- KUNJUMOL KOSHY,SANTHOSH BHAVANAM KOTTARKAVU, MAVELIKKARA BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA-688001 2. VARGHESE K.SAMUEL, SANSU SOUSI, PUTHIYAKAVU, MAVELIKKARA-690101 ADV. SRI.A.SHAFEEK (KAYAMKULAM) FOR R2 BY SR.G.P. SRI. C.R. SHYAN KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30052 of 2011(F) APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- A TRUE COPY OF RENT AGREEMENT DTD 27/6/2008 EXT.P2:- A TRUE COPY OF PETITION FILED BY THE 2ND RESPONDENT EXT.P3:- A TRUE COPY OF THE OBJECTIN FILED BY THE PETITIONER EXT.P4:- A TRUE COPY OF ORDER DTD 26/12/2009 EXT.P5:- A TRUE COPY OF THE ORDER OF THE IST RESPONDENT DTD 25/2/10 EXT.P6:- A TRUE COPY OF ORDER OF ACCOMMODATION CONTROLLER DTD 2/6/10 EXT.P7:- A TRUE COPY OF ORDER DTD 4/5/2011 PASSED BY THE IST RESPONDENT. EXT.P8:- A TRUE COPY OF OBJECTIONS FILED BY THE 2ND PETITIONER HEREIN TO THE VILLAGE OFFICER'S REPORT. RESPONDENTS' EXHIBITS: EXT.R2A COPY OF THE LEASE DEED DATED 15.10.2000 EXECUTED BY R2 IN FAVOUR OF THE PETITIONER AND HER HUSBAND. EXT.R2B COPY OF THE REPORT OF THE VILLALGE OFFICER. EXT.R2C COPY OF THE COMMISSION REPORT SUBMITTED IN OS.NO.234/20. /TRUE COPY/ P.S. TO JUDGE. CL PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... W.P.(C).NO.30052 OF 2011 ................................................................... Dated this the 29th day of November, 2011. JUDGMENT Pius C. Kuriakose, J. This writ petition under Article 226 is filed by the landlady challenging Ext.P7 order passed by the District Collector allowing the appeal preferred by the 2nd respondent against Ext.P6 order of the Accommodation Controller. Ext.P6 order was passed by the Accommodation Controller considering Ext.P2 application submitted by the 2nd respondent under Section 13 of Act 2 of 1965 complaining that the water supply to the building leased out to him and where he is conducting dry clearing business under the name and style “Neat and Tidi Dry Cleaners” was cut off by the landlady with the intention of compelling the tenant to vacate the building. It is discernible from the various materials available on record that the juristic status of the 2nd respondent as a building tenant governed by the provisions of Act 2 of 1965 is practically conceded. It is also evident that in the room let out to the 2nd respondent, he has been W.P.(C).NO.30052 OF 2011 : 2 : conducting a dry clearing centre. There is specific averment in Ext.P2 application under Section 13 that as the activity carried on by the 2nd respondent is dry cleaning which deals with soiled clothes, the persons involved have to regularly wash their hands and therefore, supply of water is indispensable for conducting the activity for which the room was taken on lease by the second respondent. Ext.P1 is the rental agreement initially entered into between the parties in respect of the room let out to the 2nd respondent. Going by the terms of Ext.R2(a), the 2nd respondent will be liable to pay the charges for the water consumed. However it is conceded by the 2nd respondent himself that there was no facility of water supply given when the building was let out to the 2nd respondent. The case of the 2nd respondent is that in the adjacent room belonging to the petitioner/landlady, a restaurant was being conducted by another tenant of the landlady under the name and style “Sun and Star“ and the water supply to the room let out to the 2nd respondent was provided from the private water supply system (a system of supply of water from a well belonging to the landlady W.P.(C).NO.30052 OF 2011 : 3 : situated in another part of the landlady's property). According to the 2nd respondent, as per the above arrangement, the respondent was getting water supply from Sun and Star Restaurant was acceptable to the landlady, she did not enforce the condition in Ext.R2(a) that the 2nd respondent shall pay water supply charges. 2. On entertaining Ext.P2 petition, the Accommodation Controller enquired into the correctness of the allegations in Ext.P2 through the Village Officer, who submitted Ext.R2(b) report. Apart from that, the 2nd respondent relied also on Ext.R2(c) Commission report submitted by an Advocate Commissioner on the basis of local inspection conducted in a suit for injunction against possible eviction filed by the 2nd respondent. The application Ext.P2 was resisted by the writ petitioner who interalia contended that the amenity of water supply was never provided by the landlady to the 2nd respondent. Supply of water to the room let out to the 2nd respondent was done unauthorizedly and in violation of the provisions such as Sections 45 F and 46 C of the Kerala Water Supply and Sewerage Act. It was contended that in W.P.(C).NO.30052 OF 2011 : 4 : order that Section 13 of Act of 2 of 1965 is attracted. It is absolutely necessary that the amenity should have been provided by the landlady as a term of the lease. The above contention raised by the landlady found favour when the Accommodation Controller who passed Ext.P6 order dismissing Ext.P2 petition. The appellate authority - the District Collector, however, under Ext.P7 has taken the view that legality or otherwise of the amenity alleged to be cut off is not a matter of concern for the Accommodation Controller or the District Collector. The only matter to be considered is whether the tenant has been enjoying the amenity and whether the above amenity has been cut off. In that view of the matter, the District Collector reversed Ext.P6 and passed Ext.P7 directing restoration of the water supply connection. For doing so, the District Collector has placed reliance on the report of the Village Officer which is to the effect that he was told by the landlady that removal of the water supply pipe lines became necessary for widening the access to the back side of the landlady's property. 3. In this writ petition various grounds are raised W.P.(C).NO.30052 OF 2011 : 5 : challenging Ext.P7 and Sri. George Varghese Perumpallikuttiyil - learned counsel for the writ petitioner addressed very persuasive submissions before us based on those grounds. Sri. George drew our attention to Section 45 (f) and 46 (c) of the Kerala Water Supply and Sewerage Act. According to him, the supply taken from the adjacent room is quite unauthorized. The learned counsel referred to Section 23 of the Contract Act. According to him, the 2nd respondent should not be allowed to take advantage of an illegality. Mr. George went on to argue that the view taken by the District Collector that the Accommodation Controller and the District Collector - the appellate authority need not be concerned about legality of the water supply allegedly disconnected is perse illegal. The counsel submitted that reliance placed by the District Collector on the Village Officer's report which was obtained behind the back of the landlady to which serious objections were filed by the writ petitioner in the appeal is not at all justified. Mr. George requested that Ext.P7 be set aside and Ext.P6 be restored. He requested further that Ext.P7 be at least remanded and W.P.(C).NO.30052 OF 2011 : 6 : the District Collector be at least directed to reconsider Ext.P7 in the light of the grounds raised in the writ petition. 4. Sri. A shafeek learned counsel for the 2nd respondent would resist all the submissions of Sri. George. He drew our attention to the various materials including the Village Officer's report and the Commissioner's report. According to him, in the very nature of the activity carried on by the 2nd respondent, water was indispensable and this was why in Ext.R2(a) there was a provision for supply of water by the landlady and payment of charges by the tenant. It was when the above arrangements could not be implemented that the arrangement of water being supplied from the water supply system in the near by room which also belongs to the landlady was brought into existence. This arrangement continued till the supply was disconnected giving rise to the cause of action on the basis of which Ext.P2 was filed by the petitioner. 5. We have anxiously considered the submissions addressed at the bar. We have gone through the pleadings raised by the parties and the materials placed on record W.P.(C).NO.30052 OF 2011 : 7 : particularly those materials to which our attention was drawn by the learned counsel in their submissions before us. A plain reading of Section 13(1) which gives cause of action to a tenant for instituting applications under Section 13(2) and 13(3) will show the cause of action arises when an amenity enjoyed by the tenant is cut off or withheld by the landlady without just or sufficient cause. Even though Sri. George submitted that the 2nd respondent is conducting only a collection centre and does not require water in his dry cleaning centre, having regard to the probabilities of the matter, we are of the view that the case of the 2nd respondent that there was supply of water and that too with the landlady's concurrence is more probable. It is not disputed that the supply lines have now been cut off and that as a result of such cut off, there is no supply of water in the room which the 2nd respondent is entitled to retain and enjoy. The submissions of Mr. George addressed on the basis of Section 23 of the Contract Act which gives statutory recognition to the principle ex turpi causa, non moritur actio do not appeal to us. It was with the concurrence of the W.P.(C).NO.30052 OF 2011 : 8 : landlady also that the water was supplied from the adjacent room to the room possessed by the 2nd respondent as a tenant. We are not unmindful of the maximum in pari delectio potior est conditio defendadis, but then, we feel that despite the recent decisions of this Court and the Supreme Court taking the view that the rent control legislation is a welfare legislation for the lord also, the statute at least the provisions therein such as Section 13 are provisions intended for the benefit of the tenant and should be construed in such a manner as to advance the interest of the tenant. In the present jurisdiction under Article 226, this Court is not expected to sit in appeal over Ext.P7. This court is expected only to examine the correctness of the decision making process adopted by the District Collector. We feel Ext.P7 can be sustained as the District Collector had kept in his mind the legislative intentions underlying Section 13 while passing Ext.P7. We dismiss the writ petition, however, there will be a direction to the Rent Control Court, Mavelikkara which is presently the seizin of RCP.No.5/2010, to give top priority W.P.(C).NO.30052 OF 2011 : 9 : to that RCP and to ensure that the same is disposed of at the earliest and if possible within the time frame of four months as said by Section 24 of Act 2 of 1965. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl