Non-obstante clause under section 11(i) does not oust jurisdiction of criminal Court.

1. The owner of a building situated at Viyyur (Trichur) filed a petition before the Sub-Divisional Magistrate (Executive), Trichur complaining that his building is in a very dangerous condition and is likely to fall down. Upon the said petition, proceedings have been initiated by the Sub Divisional Magistrate under section 133 of the Code of Criminal Procedure (for short ‘the Code’). He obtained a report from the police in regard to the allegations in the petition. On 20-11-1984 the Sub Divisional Magistrate passed a conditional order calling upon the owner of the building as well as the occupants thereof to pull down the entire building immediately and if they object in doing so, they were directed to appear before him to show cause why the order should not be made absolute. One of the occupants, the 2nd respondent herein, filed objections before the Sub Divisional Magistrate in which among other things, he contended that the owner of the building has been trying to evict the tenants without recourse to the Rent Control Law and that the petition filed by him is only a ruse to throw him out of the building. After taking evidence the Sub Divisional Magistrate passed final orders on 16-5-1986, making, the conditional order absolute. The occupants of the building were directed to vacate the premises within three weeks from the date of receipt of the said order to facilitate the owner to pull down the building.

2. Aggrieved by the said order, the 2nd respondent filed a revision petition before the Sessions Court, Trichur. The learned Sessions Judge set aside the order of the Sub Divisional Magistrate, and hence the owner of the building has filed this Criminal Revision Petition challenging the order of the Sessions Court.

3. The learned Sessions Judge, without considering the evidence, took the view that the Sub Divisional Magistrate should not have initiated proceedings under S. 133 of the Code on account of the non obstante clause in S. 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’). The learned counsel for the petitioner contended that the above view of the learned Sessions Judge is apparently wrong.

4. S.11 of the Act is not intended to be an Exception toS.133(d) of the Code. What is inhibited inS.11 of the Act is only eviction of the tenant except in accordance with the provisions contained therein. S. 133 of the Code is intended to meet an entirely different contingency, though sometimes the occupants of the building including the tenants may have to vacate the building consequently. The learned Sessions Judge declined to go into the merits of the case only because the owner of the building did not resort to the provisions of the Act. The relevant portion of the impugned order reads thus: “I do not intend to go to the merit of the case as to whether the building requires immediate demolition as that is a matter to be considered by the Rent Controller.

5. It is contended that by refusing to go into the merits of the matter, the learned Sessions Judge has abdicated his power under S. 397 of the Code. S. 11 of the Act does not contemplate a contingency where a building is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. It is true that under S. 11(4)(iv) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, “if the building is in such a condition that it needs reconstruction”. This is subject to a few other conditions, such as bona fide requirement of the landlord to re-construct the building, the availability of a plan and licence with the landlord to put up the new edifice, his ability to rebuild and that the proposal of the landlord to re-construct the building should not be a pretext for eviction. True thatS.11(i) of the Act starts with the non - obstante clause referred to by the learned Sessions Judge and it reads thus:

“11(i).