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2023 Supreme(Ker) 139
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
Bobins Johny, S/o. late E.O. Johny – Petitioner
Versus
State Of Kerala Represented By Its Secretary, Revenue Department, Secretariat, Thiruvananthapuram, Pin – 685001 and Ors. – Respondents
WP(C) No. 4943 Of 2023
Decided On : 22-02-2023
For the Petitioner: Varghese C. Kuriakose, Susanth Shaji, Albin A. Joseph, Amritha J.
For the Respondents: Smt. Deepa Narayanan.
Point of Law: Section 13 of Act, 1965, which reads Landlord not to interfere with amenities enjoyed by tenant.
Headnote:
Kerala Building (Lease & Rent) Control Act, 1965 - Section 13(3), (6), 23 (2) - Constitution of India, 1950 - Article 226 - Advertisement board kept in the parking area - Amenities are cut off - Challenging order - Landlord of building filed writ petition challenging Exhibit P8 order – Accommodation Controller is also vested with powers to give effect to, modify or cancel order - Para 7.
Finding of the Court: When sufficient power is conferred on Accommodation Controller as well as appellate authority to tackle each and every situation with respect to matters enumerated in Section 13 of Act, 1965, petitioner is not entitled to challenge interim order passed by Accommodation Controller in a proceeding under article 226 of Constitution Of India - This is especially due to fact that petitioner has challenged order before appellate authority as per Section 13(6) of Act, 1965 - To put it differently, petitioner has not made out a case of arbitrariness or illegality in impugned order to exercise discretionary powers conferred under Article 226 of Constitution of India - Anyhow, learned Senior Government Pleader, on instructions, submitted that appeal can be disposed of within a period of one month - Therefore, there will be a direction to District Collector, second respondent, to finalize Exhibit P9 appeal filed by petitioner at earliest.
Result: Petition disposed of.
JUDGMENT :
1. The petitioner, landlord of the building bearing Nos. 14/467-B and 14/467-A in Thrissur District, has filed this writ petition challenging Exhibit P8 order dated 21.01.2023 passed by the Accomodation Controller -Tahsildar, under Section 13(3) of the Kerala Building (Lease & Rent) Control Act, 1965 (‘Act, 1965’ for short). Apparently, aggrieved by the order, petitioner/landlord has preferred an appeal before the District Collector—appellate authority, under Section 13(6) of the Act, 1965.
2. Even though various contentions are raised with respect to the illegality of Exhibit P8 order passed by the Tahsildar, in my considered opinion, when the Act, 1965 prescribes a statutory modality to deal with an order passed by the Accommodation Controller, the petitioner has definitely to resort to the said provision.
3. The case projected by the petitioner attacking the impugned order of the Accommodation Controller is that the petitioner landlord has not interfered with any amenities provided or enjoyed by the tenant and the Accommodation Controller has not taken into consideration the said aspect, especially due to the fact that the contention put forth by the tenants-respondent Nos. 4 and 5 is that due to the advertisement board kept in the parking area of the complex, their amenities are cut off, and therefore, according to the learned counsel for the petitioner Sri. Varghese C. Kuriakose, the Accommodation Controller ought to have found that the landlord did not cut off or withheld any of the amenities enjoyed by the tenant.
4. Anyhow, on a perusal of Exhibit P8 impugned order, I am of the view that after considering the rival submissions made, the Accommodation Controller has found that the amenities enjoyed by the tenants for parking vehicles and loading and unloading goods was interfered with consequent to the advertisement board installed in the premises in question. It was accordingly that an interim order was passed by virtue of the power conferred under Section 13 of the Act, 1965.
5. In order to have a wholesome appreciation of the issue, it is profitable to extract Section 13 of the Act, 1965, which reads thus:
“13. Landlord not to interfere with amenities enjoyed by the tenant. - (1) No landlord shall, without just or sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant.
(2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Accommodation Controller complaining of such contravention.
(3) If the tenant satisfies the Accommodation Controller that the amenities were cut off or withheld with a view to compel him to vacate the building or to pay an enhanced rent, the Accommodation Controller may pass an interim order directing the landlord to restore the amenities immediately, pending the enquiry referred to in sub-section (4).
Explanation. -An interim order may be passed under this sub section without giving notice to the landlord. Any interim order so passed may be modified or cancelled by final order and the Accommodation Controller may give effect to such modification or cancellation.
(4) If the Accommodation Controller on inquiry finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without just or sufficient cause, he shall make an order directing the landlord to restore such amenities and for the purpose of enforcement of such orders, the Accommodation Controller may exercise all the powers of a Civil Court in executing a decree for injunction or specific performance.
(5) The Accommodation Controller may in his discretion direct that compensation not exceeding fifty rupees.
a. be paid to the landlord by the tenant, if the application under sub-Section (2) was made frivolously or vexatiously;
b. be paid to the tenant by the landlord if the landlord had cut off or withheld the amenities frivolously or vexatiously.
(6) (a) A tenant or landlo
