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1986 Supreme(Ker) 24
Judges : RADHAKRISHNA MENON
KUMARAN NAIR - Appellant
Versus
DAMODARAN NAIR - Respondent
Case No : C.R.P. No. 1462 of 1983-B
Decided On : 01/15/1986
Advocates Appeared :
V.R. Venkata Krishnan; For Petitioner P.K. Moosa; For Respondent
A tenant, by availing of rights under one statute, can be deemed to have waived the rights under the other statute, and the principle of waiver can be applied to rights and privileges conferred by statute or contract.
Headnote:
Kudikidappukaran - Kerala Buildings (Lease and Rent Control) Act - S.11(2) and (3) - S.17(2) of the Rent Control Act - S.79 and S.79A of the Kerala Land Reforms Act - Waiver of Rights and Privileges by Tenant
Fact of the Case:
The petitioner, a tenant, claimed kudikidappu rights under the Kerala Land Reforms Act while also availing rights under the Rent Control Act. The District Judge held that the petitioner had waived his right under the Kerala Land Reforms Act and restored the eviction order by the Rent Control Court.
Finding of the Court:
The District Judge found that the petitioner had waived his right under the Kerala Land Reforms Act by availing rights under the Rent Control Act, and therefore, the eviction order was restored.
Issues: The main issue was whether the petitioner could claim kudikidappu rights under the Kerala Land Reforms Act while also availing rights under the Rent Control Act, and whether the doctrine of waiver could be applied.
Ratio Decidendi: The court held that the rights enjoyed by the tenant under the Rent Control Act and the Kerala Land Reforms Act are alternative rights, and the tenant, by availing of rights under one statute, can be deemed to have waived the rights under the other statute. The court also emphasized the principle that a person can waive any matter affecting his property and any alienable rights or privileges conferred by statute or contract.
Final Decision: The Civil Revision Petition was dismissed, and the eviction order was restored. The petitioner was granted 3 months' time to surrender possession.
1. The respondent in a petition under S.11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, for short the Act, is the petitioner.
2. Before the Rent Control Court the petitioner raised the contention that be is a kudikidappukaran. The Rent Control Court therefore referred the question to the Land Tribunal and the Land Tribunal by order dated 28-6-1978, found that the petitioner is not a kudikidappukaran.
3. The Rent Control Court thereafter went into the merits of the case and found that the respondent was entitled to recover possession of the building on the ground of bona fide need and accordingly ordered eviction. In the appeal the appellate authority held that the finding of the Land Tribunal requires reconsideration and accordingly remanded the matter to the Rent Control Court for a de novo trial.
4. Aggrieved by the said order of remand, the respondent-landlord filed a revision before the District Court, Kozhikode. The learned District Judge went into the question elaborately and held that the finding of the Land Tribunal that the petitioner is not a kudikidappukaran, is unassailable. The learned District judge also found that inasmuch as the petitioner has already availed of the rights conferred on a tenant under the Rent Control Act, he shall not be permitted to take advantage of the K.L.R. Act and contend for the position that he is a kudikidappukaran. The District Judge accordingly allowed the revision and restored the order of the Rent Control Court.
5. The Civil Revision Petition is filed against the said order of the learned District Judge.
6. The learned counsel for the petitioner submits that unless the respective provisions recognising the rights of the tenants under the Rent Control Act and the Kerala Land Reforms Act are mutually exclusive, there cannot be any bar in a person claiming tenancy right either under the Rent Control Act or under the Kerala Land Reforms Act or under both. The learned counsel therefore submits that neither the doctrine of estoppel nor the doctrine of waiver nor the doctrine of election can be pressed into service to defeat the right of the petitioner to claim the kudikidappu rights conferred on him under the Kerala Land Reforms Act.
7. The question whether the petitioner could also avail of the beneficial provisions of the KLR. Act and assert the right of a kudikidappukaran, can be answered only if we understand the scope of the two statutes namely, the Rent Control Act and the KLR. Act mentioned above. I shall in this connection first refer to the relevant provisions of the Rent Control Act. S.17(2) of the Rent Control Act provides that in case a landlord fails to attend to such maintenance or repairs to the buildings and amenities thereto within a reasonable time after notice, the Accommodation Controller is competent to direct, on application by the tenant, that such maintenance and repairs can be attended to by the tenant and the charges and the cost thereof can be deducted with interest at six per cent per annum from the rent which is payable by him. Under the KLR. Act however, the position is different. Under S.79 of the KLR. Act the cost of maintenance and repairs shall be met by the tenant himself. The tenant under S.79A is entitled to certain customary and other rights whereas there is no such right available under the Rent Control Act. Under the Rent Control Act, if the tenant creates a sub-lease he is liable to be evicted whereas there is no such impediment or restriction imposed on the tenant under the KLR. Act.
8. The differences noted above are not exhaustive. There are many more. I referred to these instances of differences only to highlight the position that the rights enjoyed by the tenant under these enactments are in fact alternative rights.
9. The rights of privileges aforesaid are rights or privileges conferred on the tenant by the above statutes. These rights and privileges rest in the individual and they are intended for his
