RT REV DR KURIAKOSE KUNNASSERY Vs. THOTHAS

JUDGEMENT

(1.) The ambit of the court's powers in the matter of allotment of a reconstructed building to the tenant who was evicted and who has got the first option under the third proviso to S.11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act comes up for consideration in this case. The petitioner was the owner of a two - storeyed building. He wanted to reconstruct the building as some of the tenants occupying the building did not vacate it Petitions for eviction were filed against them under the Kerala Buildings (Lease and Rent Control) Act. One of them was the first respondent in the CRP. He was occupying a room 24" x 13" having an area of 312 Sq. ft. on the southern side in the first floor of the building. The Rent Control Court allowed the petition on the ground of reconstruction specifically reserving the statutory right of the tenant for the first option to the reconstructed structure, it might be noted that in ordering eviction the petitioner had produced a plan and licence which are required for reconstruction as under the statute he has to satisfy the court that he has got such plans and licenses. In the other rent control petitions filed by the petitioner similar orders for eviction were passed. But in regard to some of the tenants, they had vacated the rooms that they were occupying voluntarily. According to the petitioner, they had agreed to such vacating the building on the undertaking given by the petitioner that they will be given room in the reconstructed structure. One such tenant was Chacko Manthuruthiyil who was also occupying the northern side room in the first floor occupied by the first respondent.

(2.) After the tenants were evicted the building was reconstructed according to the plans produced before the Rent Control Court. In the reconstructed building the first floor consisted of a big hall which has an area of 2555 sq.ft. and one room. The petitioner allowed Chacko to occupy that room which is on the northern side of the reconstructed structure. As the hall is very big and contained a much larger area the respondent was offered a room in the second floor having all conveniences. The respondent tenant refused to occupy that room offered in the second floor. He insisted that he should get a room in the first floor. As the petitioner did not comply with his request the respondent filed I. A. No. 923 of 1971 before the Rent Control Court for orders to direct the petitioner to put the respondent in possession of an area of 312 sq. ft. which will be equal to the area of the room that he was occupying in the first floor of the reconstructed building The Rent Control Court rejecting the contentions of the petitioner held that the respondent is entitled to an order to put him back to possession in an area of 312 sq. ft. in the first floor of the reconstructed building with liability to pay the fair rent of Rs 171.60 per month which fair rent has been fixed in a separate petition

(3.) The petitioner took up the matter in appeal before the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act. The Appellate Authority did not agree with the Rent Controller. The learned Subordinate Judge, the Appellate Authority, said that if is mandatory that the landlord should have submitted a plan before the Rent Control Court before an order for eviction is obtained on the ground of reconstruction. In this case it is not disputed that such a plan was produced before the court. The landlord had been allowed to reconstruct the building on the basis of the said plan and it has to be presumed that the building was reconstructed as per the plan. The learned Subordinate Judge then said that the original building had been demolished after the order of the Rent Controller was obtained for reconstruction, which included the room which as per the definition in the Act would be an independent building. In its place a new building has been constructed, which has got four floors. Can the particular portion of the old building that was originally let out to the tenant be identified with any part of the reconstructed structure The Appellate Authority proceeded to state: