IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 WP(C).No. 5703 of 2011(K) ------------------------- PETITIONER(S): --------------- PRADEEP NAICK, S/O. RAMANATHA BHATTAR, AGED 48 YEARS RESIDING AT VAYYAMUKKU HOUSE, NEAR KALLUPALAM, BIG BAZAR, KOLLAM-13. BY ADV. SMT.K.G.BINDU SMT.T.S.MAYA (THIYADIL) SMT.PRINCY XAVIER RESPONDENT(S): --------------- 1. ACCOMMODATION CONTROLLER, (TAHSILDAR), TALUK OFFICE, TALUK CUTCHERY JUNCTION, KOLLAM. 2. GOERGE D. KATTIL, S/O. DEONS, RESIDING AT KATTIL HOUSE, PALACE ROAD, THANGASSERI.P.O, KOLLAM. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R2 BY GOVT.PLEADER SRI.V.T.K.MOHANAN (R1) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5703/2011 APPENDIX PETITIONER'S EXHIBITS; EXT.P1: TRUE COPY OF ORDER DATED 2/7/05 IN RCP 28/04 OF RENT CONTROL COURT, KOLLAM. EXT.P2: COPY OF THE ORDER DATED 18/2/2008 IN RCA 9/2006 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT) KOLLAM. EXT.P3: COPY OF THE ORDER DATED 21/11/2008 IN RCR 197/2008 OF THE HON'BLE HIGH COURT. EXT.P4: COPY OF THE NOTICE DATED 26/5/2010 ISSUED TO THE PETITIONER BY THE 1ST RESPONDNT. EXT.P5: COPY OF THE STATEMENT DATED 30/6/2010 FILED BY THE PETITIONER BEFORE THE 1ST REESPNODENT. EXT.P6: COPY OF THE NOTICE DATED 3/7/2010 ISSUED TO THE PETITIONER BY 1ST RESPONDENT ALONG WITH COPY OF COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P7: COPY OF TH LETTER DATED 16/9/2010 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT ALONG WITH A COPY OF INSPECTION REPORT. EXT.P8; COPY OF THE NOTICE DATED 23/9/2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P9; COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 14/10/2010 BEFORE THE 1ST RESPONDENT BEARING THE ENDORSEMENT OF THE 1ST RESPONDENT OF THE RECEIPT OF IT. EXT.P10; COPY OF THE ORDER DATED 5/1/2011 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ W.P.(C).No. 5703 OF 2011 ------------------------ Dated this the 8th day of July, 2011 JUDGMENT Pius C.Kuriakose, J. Under challenge in this writ petition filed under Article 226 of the Constitution is Ext.P10 order. Under Ext.P10 order, the Accommodation Controller, considering the petition filed by the party respondent under Section 17(2) of the Kerala Building (Lease and Rent Control) Act, has directed the landlords to attend the necessary maintenance works under Section 17(2) of the Act. Ext.P10 concededly is not appealable under the provisions of the Act 2 of 1965. Ext.P10 is challenged on various grounds. 2. Smt.K.G.Bindu, learned counsel for the petitioner submitted before us that Section 17(2) of Act 2 of 1965 will enable the Accommodation Controller to direct the landlord to carry out periodical maintenance and repair only when he is satisfied that the landlord has neglected to carry out periodical maintenance and repairs in spite of the request in that regard by the tenant. In the present case, the necessity to carry out WPC.No.5703/2011 2 repairs to the building arose out of the act of misuser of the building. The learned counsel submitted that, invoking the section 11(4)(ii) of Act 2 of 1965, the landlord moved the Rent Control Court for evicting the the 2nd respondent. The Rent Control Court after enquiry found that the 2nd respondent had used the building in such a manner as to reduce the value and utility of the building materially and permanently. Accordingly, the Rent Control Court ordered eviction. The Rent Control Appellate Authority considered the appeal preferred by the second respondent. After re -appreciating the evidence, the Appellate Authority also concurred with the findings of the Rent Control Court and confirmed the order of eviction. The order of eviction was set aside by this court on a revision filed by the 2nd respondent under Section 20 and Ext.P3 is the order of this court. Ext.P3 order has not become final. Against Ext.P3, S.L.P. No.6613/2010 was filed by the petitioner before the Supreme Court. The Supreme Court ordered notice on the same and the second respondent has entered appearance before the Supreme Court in that case. That case stands posted before the Supreme Court on 16/8/2011. The endeavour of the 2nd WPC.No.5703/2011 3 respondent is to renovate the building extensively so as to make it appear before the Supreme Court that factually also the condition of the building is perfect. Allowing Ext.P10 be implemented , it will cause prejudice to the petitioner landlord in his case before the Supreme Court. 3. Sri.K.Subashchandra Bose learned counsel for the 2nd respondent would oppose all the submissions of Smt.Bindu. According to Mr.Subashchandra Bose unless Ext.P10 is allowed to be implemented , the building will not stand on going monsoon. He submitted further that unless at least roof of the building is allowed to be repaired and sweepage of rain water is prevented, it will not be possible for the tenant to carry on his business. The resulting situation will be that in spite of Ext.P3, the 2nd respondent will not be able to conduct business and will be virtually out of the building. According to Mr. counsel, if the present situation is allowed to continue, the same will be dangerous to the employees of the 2nd respondent and to his customers. In reply, Smt.Bindu submitted that kerosene business has been wound up by the 2nd respondent and that he is now thinking in terms of turning to business in the various WPC.No.5703/2011 4 products of Airtel cellular company. 4. Responding to a querry put up by us, Mr.Subashchandra Bose submitted that the second respondent is all willingness to carry out all repairs necessary for the building for preventing sweepage of rain water and for preserving the building and that the 2nd respondent will not claim any reimbursement or adjustment on account of the expenses incurred. According to Smt.Bindu, the monthly rent of Rs.2,000/- fixed in the year 2000 is ridiculously low for the scheduled building which has situated in a commercially very important area of the Kollam city. According to her, if the building is let out today, minimum Rs.9000/- mensem will be received. Mr.Subashchandra Bose also fairly submitted before us that his client will be ready to pay Rs.4,000/- by way of monthly rent subject to the regular fixation of fair rent at the option of either party. 5. Having considered the rival submissions addressed at the Bar, we are of the view that Ext.P10 can be sustained and the writ petition can be disposed of issuing the following directions; i). The 2nd respondent is permitted to carry out all repairs found necessary by him for preserving the building and also for WPC.No.5703/2011 5 the conduct of business in the building. The expenses incurred shall be met by the 2nd respondent himself who will not be entitled to claim any reimbursement or adjustment from the petitioner. ii). The rent payable by the 2nd respondent to the petitioner for the building is refixed with effect from 1/8/2011 at Rs.5,000/- per month. iii). We make it clear that this refixation is tentative and if either party is aggrieved, it is open to them to move the Rent Control Court for regular fixation of fair rent under Section 5 . Till fair rent is fixed, the second respondent shall pay the rent at the rate of Rs.5,000/- per month. iv). It is made clear that the permission granted under this judgment to the 2nd respondent for carrying out repairs is without prejudice to the rival contentions in the case presently pending before the Supreme court. We clarify that what is permitted under this judgment is only repairs to the building and not structural alterations . PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk