IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 18635 of 2009(Y) -------------------------- PETITIONER(S): --------------- CHALIAKATH HASSAN HAJI, S/O. ABDULLAH KHAN, AGED 63, RESIDING AT CHALIAKATH HOUSE, NEDUVA AMSOM, CHENNAMANGALAM, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENT(S): --------------- 1. ACCOMMODATION CONTROLLER & TAHSILDAR, TIRUR, MALAPPURAM DISTRICT. 2. KULANGARAKATH HASEENA, W/O. FAIZAL, RESIDING AT KULANGARAKATH HOUSE, TIRUR AMSOM, THOOMARAKKAVU DESOM, TIRUR TALUK, P.O. POOKAYIL, TIRUR, MALAPPURAM DISTRICT. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R2 (B/O) SRI.M.K.CHANDRA MOHANDAS FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ W.P.C.No.18635 OF 2009 ------------------------ Dated this the 14th day of July, 2009 JUDGMENT Pius C.Kuriakose, J. This is a writ petition under Article 226 of the Constitution filed by the landlord. The respondents are respectively the Accommodation Controller, Tirur and the tenant. The tenant filed a petition purporting to be under Section 13 of the Act 2 of 1965 before the first respondent Accommodation Controller alleging that the writ petitioner landlord has started demolishing the other portions of the larger building, of which the building occupied by the tenant is also a part, and seeking a direction that the landlord be restrained from demolishing and removing the other portions of the larger building. On entertaining the above petition, a copy of which was placed before us by Sri.M.K. Chandramohan Das learned counsel for the second respondent tenant, the first respondent Accommodation Controller issued Ext.P3. Ext.P3 styled as a notice, directs the writ petitioner to appear and submit objection to the ACP filed by the second respondent tenant. Ext.P3 also directs the writ petitioner to WPC.No. 18635/2009 2 refrain from demolishing the other rooms in the building. Ext.P3 is impugned in this writ petition on the various grounds including the ground that the ACP filed by the second respondent, upon which Ext.P3 is issued, is not maintainable in law. Ext.P4 affidavit is filed by the writ petitioner undertaking that he will not cause any damage at all to the building occupied by the second respondent tenant by his demolition of the other rooms belonging to him. Ext.P2 interim order issued by the Munsiff Court, Parappanangadi at the instance of the second respondent against the writ petitioner is also relied on by the writ petitioner to show that the regular civil court is already in seizin of the same issue. 2. We have heard the submissions of Sri.Harish R.Menon, learned counsel for the writ petitioner and those of Sri.M.K.Chandramohan Das, learned counsel for the second respondent tenant. We have also heard the submissions of Smt.Latha.T.Thankappan, learned senior Government Pleader for the the first respondent Accommodation Controller. 3. Our attention was drawn by the learned counsel for the writ petitioner to Sections 13 and 17 of the Act 2 of 1965. It WPC.No. 18635/2009 3 was argued by Sri.Harish R.Menon that the main ACP filed by the second respondent is not maintainable in law since no amenity, which was being enjoyed by the second respondent tenant, has been cut off. Only when amenity is cut off by the landlord with the intention of compelling the tenant to vacate, the Accommodation Controller gets jurisdiction under Section 13 of the Act 2 of 1965 and the ACP becomes maintainable in law, according to the learned counsel. 3. Sri.M.K.Chandramohan Das, the learned counsel for the second respondent would argue that Ext.P3 is only an interim order. The writ petitioner has been directed by a statutory authority to appear before the same court to show cause why the interim order should not be made absolute. This court will not be justified in interfering with the interim order Ext.P3 passed by the statutory authority -first respondent since that order cannot be said to be passed without jurisdiction. It is open to the writ petitioner to appraise the first respondent of the jurisdictional aspect of the matter and get the interim order Ext.P3 varied by the first respondent himself. 4. We have anxiously considered the rival submissions WPC.No. 18635/2009 4 addressed at the Bar and we have carefully gone through the copy of ACP dated 26/6/2009 filed by the second respondent. We have kept in mind Sections 13 and 17 of the Act 2 of 1965, the two provisions which confer jurisdiction upon the Accommodation Controller. Having gone through the ACP filed by the second respondent, we do not find any specific allegation to the effect that any amenity, which was being enjoyed by the second respondent, has been cut off by the writ petitioner landlord with the objective of compelling the tenant the second respondent to vacate the building. On the contrary, the allegations raised in the ACP are only to the effect that the other rooms in the larger building, of which the building occupied by the second respondent tenant is a part, are being demolished by the writ petitioner. It is doubtful whether the issue raised by the second respondent in the ACP falls within the powers of the Accommodation Controller under Section 13. We also notice that the regular Civil Court has already been moved by the second respondent. That is a circumstance which supports the argument of Harish R.Menon that the remedy of the second respondent, even if he has genuine grievance, lies before the Civil Court and WPC.No. 18635/2009 5 not before the Accommodation Controller. However, since the Accommodation Controller is yet to dispose of the main petition, we do not propose to decide the issue finally. We dispose of this writ petition issuing the following directions ; i). Ext.P3 to the extent it directs the writ petitioner to refrain from demolishing the rooms other than the room which is subject matter of the lease in favour of the second respondent, will stand stayed. We record the undertaking given by the writ petitioner in Ext.P4 to this court and we also notice Ext.P2 interim order passed by the Civil Court in the above context. ii). The first respondent is directed to take up the main ACP dated 26/6/2009 filed by the second respondent, hear both sides regarding the maintainability of that ACP and take an early decision on that issue. WPC.No. 18635/2009 6 iii). Decision regarding the maintainability of the ACP filed by the second respondent will be taken by the first respondent early and at any rate within 10 days of receiving a copy of this judgment. It is recorded that the writ petitioner has been served with a copy of the ACP filed by the second respondent. It is made clear that nothing stated in this judgment will preclude the second respondent from seeking and obtaining appropriate reliefs from the regular civil court. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk