IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 12319 of 2009(O) -------------------------- RCP.50/1990 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER: --------------- S.K.SUDHEERKUMAR,AGED 53 YEARS, S/O.LATE K.N.KARTHIKEYAN,SANTHA BHAVANAM, KARTHIKA TOURIST HOME,SANATHANAM WARD,ALAPPUZHA. BY ADV. MR.T.A.UNNIKRISHNAN MR.P.P.BIJU RESPONDENTS: --------------- 1. K.V.JOSEPH,KULAKKATTU HOUSE, THATHAMPALLY, ALAPPUZHA. 2. S.K.VINAYA CHANDRAN,KARTHIKA TOURIST HOME,SANATHANAM WARD, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.12319 of 2009 - O --------------------------------- Dated this the 25th day of May, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “Set aside Ext.P1 order and allow this writ petition”. 2. Petitioner is one of the landlords in R.C.P.No.50/1990 on the file of the Rent Control Court, Alappuzha, in which an order of eviction of the tenant-1st respondent was passed under Section 11(4)(IV) of the Building(Lease and Rent Control) Act (for short BRC Act) with the statutory burden on the landlords to provide the tenant one room in the reconstructed building subject to payment of fair rent. The eviction proceedings had a long chequered career, which is seen briefly narrated by the learned Munsiff in paragraph 3 of Ext.P1 order, the subject matter of challenge in the petition. Suffice to state pursuant to orders of eviction attaining finality the tenant surrendered vacant possession of the premises and a new multi storied building was constructed by the landlords. In the order of eviction passed by W.P.(C).No.12319 of 2009 - O 2 the court, the tenant was directed to be provided with a room in the ground floor in the newly constructed multi storied building, which again gave rise to another round of litigation and finally this Court approved the specification of the premises to be allowed to the tenant fixing a liability on the tenant to pay a monthly rent of Rs.2,000/- till fair rent is fixed by the court. It was also held that no application need be filed by the parties and the court has to fix the fair rent taking into consideration the relevant aspects. An application was moved by the tenant under Section 14 of the BRC Act before the court seeking a direction to the landlord to provide him with a room in the ground floor as directed by the court. One of the landlords filed an affidavit suggesting the room to be given to the tenant. The learned Munsiff was not inclined to accept the affidavit filed by that landlord, since it was not seen moved for and on behalf of all the landlords. However, after taking into consideration the whole issues involved in the proceedings and the limited question arising for consideration, the learned Munsiff passed an order directing the landlords to provide room No. AMC X/1138/D in the W.P.(C).No.12319 of 2009 - O 3 ground floor of the newly constructed building to the tenant. It is evident from Ext.P1 order passed by the learned Munsiff that it was not based on the concession made by one of the landlords but after taking note of the facts and circumstances involved in the case. A further direction was given that if the room specified is not allotted, the tenant shall file an affidavit showing the room he require and of his choice, on which appropriate orders can be passed by the court for delivery of the vacant room to him in the new building. This writ petition has been filed contending that the learned Munsiff has passed Ext.P1 order on the basis of the concession made by one of the landlords under Ext.P2 affidavit, which was given without notice to the other landlords, and as such the order passed by the learned Munsiff is an abuse of jurisdiction vested with that court. In Ext.P1 order passed by the learned Munsiff, the history of long litigation is narrated and it would prima facie indicate that at every instance, there was attempt by the landlords to deny the statutory protection given to the tenant to have reoccupation in the newly constructed building and which was also directed by the court ordering W.P.(C).No.12319 of 2009 - O 4 eviction and approved by the superior courts. It is seen that the tenant was conducting a grocery shop in the ground floor of the old building which was demolished for the purpose of reconstruction pursuant to order of eviction under Section 11(4) (IV) of the BRC Act. Initially, the landlords wanted to provide a room in the first floor of the newly constructed building to the tenant. But, pursuant to the grievances raised by the tenant and orders passed by the Rent Control Court and later by this Court, landlords were directed to provide him a room in the ground floor on the western side of the multi storied construction newly put up by the landlords. What was the difficulty to the landlords in complying with the order even after the construction had been made, has not be shown and it is prima facie evident the writ petition is yet another attempt to prolong the case and deny a room to the tenant in the building. Normal remedy available to the petitioner, in case Ext.P1 order was without hearing him, was to move a review petition and seek appropriate relief thereunder. Invoking extra ordinary jurisdiction of this Court setting forth a case that one among the landlords conceded for extending a W.P.(C).No.12319 of 2009 - O 5 particular room to the tenant and on that basis the learned Munsiff passed an erroneous order, which is prima facie found to be not correct is not to be appreciated. The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-