IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 WP(C).No. 30870 of 2010(G) ---------------------------------- PETITIONER(S): ------------------- V.V.PAVITHRAN,AGED 77 YEARS, S/O.VELAYUDHAN,LAKSHMI SADANAM,MARUTHORVATTOM MURI,KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, MARUTHORVATTOM PO. BY ADVS. SRI.A.V.THOMAS SMT.M.M. JASMIN RESPONDENT(S): --------------------- 1. CHERTHALA MUNICIPALITY,CHERTHALA,REP. BY ITS SECRETARY,CHERTHALA P.O., PIN 688 524. 2. THE SECRETARY, CHERTHALA MUNICIPALITY,CHERTHALA, CHERTHALA P.O., PIN 688 524. 3. VENUKUTTAN,DOOR NO.CMC IV/452, JOVIAL BUILDING,CHERTHALA,CHERTHALA P.O., PIN 688524 4. SHOBHANA,SHOBHANA LABORATORIES, JOVIAL BUILIDNG, CHERTHALA,CHERTHALA P.O., PIN 688 524. 5. K.N.PURUSHOTHAMAN NAIR, CMC IV/457,JOVIAL BUILDING,CHERTHALA, CHERTHALA P.O., PIN 688 524. 6. N.SIVADASA PANICKER,CMC IV/458, JOVIAL BUILDING,CHERTHALA, CHERTHALA P.O., PIN 688 524. 7. SANU.CMC IV/459, JOVIAL BUILDING,CHERTHALA, CHERTHALA P.O., PIN 688 524. R1 & 2 BY ADV.SRI.J.OM PRAKASH, SC. R3,6,7 BY ADVS.SRI.P.SANTHOSH KUMAR (TR) SRI.T.P.SAJAN R5 BY ADV. SRI.K.RAMANATHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 30870 of 2010 ------------------------------- Dated this the 1st day of December, 2010 J U D G M E N T The petitioner is the landlord of the building situated within the local limits of Cherthala Municipality. With a view of reconstruct the said building, the petitioner filed R.C.P.No.3 of 1999 on the file of the Rent Control Court, Cherthala. By Ext.P1 order passed on 31.8.2005, the Rent Control Court ordered eviction of the tenants on the ground of reconstruction. The petitioner was directed to reconstruct the building within six months from the date on which the tenants or court put them into possession of the building and put the respective tenants, except the first respondent in the Rent Control Petition, in possession of rooms in the rebuilt building on a fair rent. The correctness of Ext.P1 was challenged by one among the tenants by filing an appeal, R.C.A.No. 36 of 2005 on the file of the Additional Rent Control Appellate Authority, Alappuzha. By Ext.P2 judgment delivered on 2.4.2008, the said appeal was dismissed. He thereupon filed R.C.Rev. No.216 of 2008 in this Court. By Ext.P3 order passed on 16.1.2009, the said revision was dismissed. The respondents 3 to 7 herein did not challenge Ext.P1 in appeal and it has become final. 2. It is stated that since respondents 3 to 7 did not surrender vacant possession of the building, the petitioner has filed W.P.(C) No.30870 of 2010 2 E.P.No.62 of 1999 in R.C.P.No.3 of 1999 in the Court of Munsiff of Cherthala seeking delivery and possession of the property and it is still pending. While matters stood thus, the second respondent issued Ext.P5 notice dated 16.3.2010 under Section 411(1) of the Kerala Municipalities Act directing the petitioner to demolish the building within 15 days from the date of receipt of notice, failing which it was informed that it will be demolished and the expenses will be recovered from the petitioner. On receipt of Ext.P5, the petitioner submitted Ext.P6 reply pointing out that the Rent Control Court has already directed the tenants to vacate the building, though some tenants have vacated the possessions, some are still with the possession and as and when the tenants vacate the possession, the petitioner will demolish the building. This writ petition was thereupon filed seeking a direction to the second respondent to implement Ext.P5 order stating that though the period prescribed in Ext.P5 notice has expired, respondents 3 to 7 who are tenants remaining in the possession of the building, have declined to vacate the building, and therefore, the petitioner is not in a position to demolish the building as directed in Ext.P5. Relying on Ext.P8 series photographs, it is contended that the building is in a dilapidated stage and is likely to fall down and there is W.P.(C) No.30870 of 2010 3 no roof for the first floor of the building which has already collapsed. 3. After the respondents have entered appeared through counsel, attempts were made to settle the dispute out of court. The parties were accordingly directed to be present before the Kerala Mediation Centre. But, notwithstanding the two rounds, the parties could not arrive at a settlement. Therefore, the writ petition came up for hearing today. 4. When the writ petition came up for hearing today, Sri.A.V.Thomas, the learned counsel appearing for the petitioner submitted that though in cases where the building is demolished and the tenants are evicted under Section 411 of the Kerala Municipality Act, the owner of the building has to put the respective tenants back in possession of the reconstructed building in accordance with the provisions of the Kerala Buildings (Lease & Rent Control) Act, if in a reasonable time, the tenants have surrendered possession of the building. The learned counsel further submitted that all other tenants have evicted the building, and in view of the stand taken by respondents 3 to 7, the petitioner has not been able to commence the reconstruction of the building. The learned counsel also relied on the decision of this Court in Sunder Raj v. Corporation of Cochin W.P.(C) No.30870 of 2010 4 (2001 (1) KLT 536) and Reghunath v. Thiruvalla Municipality (2004 (3) KLT 75) to contend that even when a petition for eviction is pending before the Rent Control Court, the procedure prescribed in section 411 of the Kerala Municipality Act can be invoked and in such a proceeding, the tenants are not entitled to be put on notice or heard. 5. The learned counsel appearing for respondents 3, 6 and 7, on the other hand, contended that Ext.P5 is only a notice to evict the tenants and if they are evicted, as per the proceedings initiated under section 411 of the Kerala Municipality Act, their right to re-occupy the building recognised under the Kerala Buildings (Lease and Rent Control) Act will be lost to them. The respondents do not however dispute the fact that all other tenants except respondents 3 to 7 have vacated the building and the first floor of the building which was formerly occupied by the tenants has no roof at present. 6. I have considered the rival submissions made at the Bar by the learned counsel on both sides. I have also gone through the pleadings and materials on record. From the submissions made at the Bar, it appears that respondents 3 to 7 who are the tenants remaining in possession of the building which is the subject matter of W.P.(C) No.30870 of 2010 5 Ext.P5 have declined to vacate the building, even after Ext.P5 notice was issued, on the apprehension that if they evict the building, they will loose the right to re-occupy the the building under the Kerala Buildings (Lease and Rent Control) Act. In my opinion, in view of the offer made by the learned counsel for the petitioner, the said apprehension is misplaced and without any basis. As regards respondents 3 to 7, the order of eviction has become final. Therefore, they will have to surrender possession of the building, as and when ordered by the Execution Court. The remaining tenants have already vacated the building and as at present, the first floor does not have a roof. In such circumstances, I am of the opinion that respondents 3 to 7 should surrender the building without raising any further objection and without waiting for the Execution Court to order delivery of the building to the petitioner. In view of the submissions made by the learned counsel for the petitioner that respondents 3 to 7 will be accommodated in the re-constructed building, they need not have the apprehension that they will not be given accommodation in the re- constructed building. Accordingly, I dispose of the writ petition with a direction to respondents 1 and 2 to finalise the proceedings initiated by them W.P.(C) No.30870 of 2010 6 under Section 411 of the Kerala Municipality Act and to demolish the building at the expense of the petitioner within three weeks from the date of receipt of a certified copy of this judgment. Respondents 3 to 7 shall vacate the premises within the above said period. It is clarified that the right given to respondents 3 to 7 in Ext.P1 order for eviction and the proviso to section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act will not be lost to them, merely for the reason that they are surrendering the possession of the building pursuant to the proceedings initiated under section 411 of the Kerala Municipality Act and pursuant to the directions of this Court. It is clarified that if within the period of three weeks from today, respondents 3 to 7 surrender possession of the building, the respondents 1 and 2 need not demolish the building and it will be open to the petitioner to demolish the building at his own expense. P.N. RAVINDRAN, JUDGE. nj.