IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 6152 of 2010(T) -------------------------------- E.P. NO.116/09 IN RCP.23/96 IN RCA.4/02 IN RCR.289/08 OF PRINCIPAL MUNSIFF COURT, KASARAGOD. .................... PETITIONER(S): ------------------ 1. CHANDRAVATHI, W/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 2. SUNITHRA, D/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 3. SUNANDA, D/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 4. SHIVANANDA, S/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 5. RAVIPRAKASHA, S/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 6. SUMATHI, D/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 7. MANODATH, S/O LATE ANANTHA ACHARYA, MOODAMVAIL P.O., KASARAGOD DISTRICT. 8. THARANATHA ACHARYA, S/O NEELAYYA, NEAR KALIKAMBA TEMPLE, MADHUR P.O., KASARAGOD DISTRICT. 9. SANTHA KUMAR (MINOR, AGED 10 YEARS) REP. BY HIS MOTHER 8TH PETITIONER-THARANATH ACHAYRA. 10. PRATHISH KUMAR (MINOR, AGED 6 YEARS) REP. BY HIS MOTHER 8TH PETITIONER-THARANATH ACHAYRA. BY ADV. SRI.P.I.DAVIS W.P.C.6152/2010 -2- RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. ASMATH, W/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 2. MOHAMMED HANEEFA, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 3. MOHAMMED ASLAM, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 4. SMT.FIRDOS, D/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 5. MOHAMMED AFSAL, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 6. MOHAMMED NIZAM, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 7. MOHAMMAD SAFEA, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 8. MOHAMMED JAVID, S/O LATE ABDUL AZEEZ, BAPPAITHOTTI HOUSE, UPPALA P.O., KASARAGOD DISTRICT. 9. GULAM MUHAMMED, S/O MOHAMMED SHERIF, SHERIF MAISTRY, 156-158 IBRAHIM RAHMATHULLA ROAD, IIND FLOOR, ROOM NO.11, MUMBAI - 400 003. SMT.PRABHA R. MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.6152 of 2010 ------------------------------------------------ Dated this the 1st day of March, 2010 JUDGMENT Pius C. Kuriakose, J In this Writ Petition filed under Article 226 of the Constitution of India, the petitioners who are tenants challenge Ext.P5 order of the District Court dismissing a revision which they had filed under section 14 of Act 2 of 1965 against Ext.P4 order passed by the Principal Munsiff's Court in execution of Ext.P1 order of eviction which was passed by a Division Bench of this Court to which one among us [PCK(J)] was party. Exts.P4 and P5 are challenged on various grounds raised in this Writ Petition and Sri.P.I.Davis, the learned counsel W. P. C. No.6152 of 2010 -2- for the Writ Petitioners would draw our attention to the last sentence in paragraph 3 of Ext.P3 which is judgment in R.P.1221/09 filed by these petitioners themselves seeking review of judgment in Writ Petition No.34571/09. According to Mr.Davis it was relying solely on the submission made by the learned counsel for the respondents that the respondents have obtained exemption orders from the Government regarding the proposed re-construction that we passed Ext.P3 dismissing the RP. Mr.Davis would draw our attention to Ext.P6 replies received by one of the petitioners to certain questions which he had put to the local authority and submit that the submission made on behalf of the landlord in Ext.P3 that the landlord has secured exemption W. P. C. No.6152 of 2010 -3- orders was an absolutely incorrect submission. 2. As requested by us, Mr.Davis placed before us the questions which were submitted under the Right to Information Act to the Public Information Officer of the local authority. Question No.C is as to whether any building permit was granted to the landlords and if so, the number and date of the permit. Question 'C' is answered in Ext.P6 by answer No.C which is as follows:- “No. No permission has been granted from this office to Smt.Asmath and her children for construction of shop building in the above said land.” 3. Mr.Davis would submit that the building rules have been made applicable to the local area in question and therefore, the carrying out of the reconstruction proposed in the Rent Control Proceedings has become impossible considering W. P. C. No.6152 of 2010 -4- the smallness of the plot shown in the plan Ext.A1 submitted to the Rent Control Court. It will not be possible for these landlords to put up constructions in the adjacent plot also in view of the order passed by the Land Tribunal in S.M. Proceedings No.80/82. Though it is true that the landlords have preferred an appeal under section 102 of the Land Reforms Act against the order of the Land Tribunal, the chances are more that the Appellate Tribunal will confirm the order of the Land Tribunal. 4. All the submissions of Mr.Davis were resisted by Smt.Prabha R. Menon, the learned counsel for the respondents/landlords. Drawing our attention to Ext.P1 Smt.Prabha submitted that the tenants were aware at the time when this W. P. C. No.6152 of 2010 -5- court passed Ext.P1, of the commencement of the building rules in the Panchayath in question. Nevertheless, the tenants agreed to suffer the order of eviction under section 11(4)(iv) provided they are given the right of re-induction as contemplated by the third proviso to clause 4 of sub section 4 of section 11. Ext.P1 having attained finality, it is not open to the petitioners to raise contentions like the present one before this Court indirectly. It was on the basis of Ext.A1 that the authorities under the Rent Control statute passed the order of eviction which was confirmed in Ext.P1. Under Ext.P1, it is the obligation of the respondents to carry out the reconstruction and if for any reason the respondents do not carry out the reconstruction the respondents will be bound W. P. C. No.6152 of 2010 -6- to suffer any order which the Rent Control Court and the higher authorities under the statute may pass in terms of the third proviso to section 11(4) (iv). The land will also be there and if it comes to that the authorities under the statutes are empowered even to permit the evicted tenants to put up temporary construction. Ext.P3 was challenged before the Supreme Court also. But the Supreme Court did not grant special leave for challenging Ext.P3. Thus, Ext.P3 has also attained finality at the hands of the Supreme Court. In view of the judgment of the Supreme Court confirming Ext.P3 also, the petitioners are not entitled to raise the contentions presently raised. 5. We have very anxiously considered the rival submissions addressed at the Bar. It is the W. P. C. No.6152 of 2010 -7- supervisory jurisdiction of this Court under Article 227 which has been invoked by the petitioners. Supervisory jurisdiction under Article 227 is a visitorial jurisdiction. It is not invoked for correcting each and every wrong order that is passed by a Subordinate Court. Visitorial jurisdiction is invoked only when it can be stated that the order passed by the Subordinate Court is per se illegal in the sense that it offends a direct statutory provision or a binding judicial precedent. It can be invoked also when it can be stated that it results in failure of justice or gross injustice to one of the parties to the litigation. It may also be possible to invoke supervisory jurisdiction when it is possible to say that the order challenged is so wholly unreasonable in the sense that the same W. P. C. No.6152 of 2010 -8- can be branded as a perverse one so that such an order will not be authored by anybody having reasonable learning and training in law. Gauging the orders challenged in these proceedings by the parametres which are applicable for the invocation of the supervisory jurisdiction under Article 227, we are unable to say that there is warrant in this case for invocation of that jurisdiction on Ext.P3 which is confirmed by the Supreme Court also. It is an order of eviction under section 11(4)(iv) which has been passed in favour of the respondents. On the terms of Ext.P1 and the orders of the Rent Control Court and the Appellate Authority which were confirmed under Ext.P1, the respondents are bound to carry out the re- construction within the time limit. If they do not W. P. C. No.6152 of 2010 -9- carry out reconstruction and re-induct the petitioner into the building, the Rent Control Court will have every power to ensure that the petitioners are re-inducted at least to the site on which the buildings stood. If it comes to that, that court will have the power to permit the petitioners to put up constructions subject to reasonable terms which may be fixed. The challenge against Exts.P4 and P5 has necessarily to fail and we dismiss this Writ Petition. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-