ALUNKAPARAMBIL MOIDEEN PILLAI Vs. GEORGE AUGUSTUS PAPPALI

JUDGEMENT

(1.) ALL the three original petitions were filed by the tenants of building owned by first respondent against order of eviction passed under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Controller found that petitioners in O.P. Nos. 4979 and 9803/92 are liable to be evicted under Section 11(2)(b) of the Act on the ground of arrears of rent by Ext. P1 common order and dismissed the case of the landlord under Section 11(4)(iv) for reconstruction. The appellate authority, in all cases, granted order for eviction under Section 11(4)(iv) of the Act after finding that the building is in a dilapidated condition and it requires reconstruction. The bonafides of the petitioners, ability of the landlord to reconstruct the building etc. were also found. The plan was also looked into. The appellate authority also found that the tenant will be entitled to get sufficient space allotted in the reconstructed building in accordance with the provisions of Section 11(4)(iv) of the Act. Appellate Authority, on the basis of evidence, held as follows :-

(2.) DURING the pendency of the original petition, the landlord died on 2.1.1993. The tenants impleaded the legal representatives of the landlord to continue the proceedings. The landlord's brother's son also filed a petition for impleading on the ground that the land and building was already given to him by a will. It is the contention of the petitioners that there was a dispute regarding the correctness of the will by some relatives. Even though the above is settled by judgment of this court, actual probate is not so far granted. Three points are pressed by the petitioner. First point is that since original landlord died, bonafide of the present landlord for reconstruction is not proved and order of eviction is liable to be quashed. In any event, their case is that the capacity of the present owner to reconstruct the building and absence of a valid plan now etc. shall be looked into. Secondly, it was contended that lower authorities did not fix the date for reconstruction which is mandatory as per the section. Thirdly, it is submitted that if there are any arrears, they are prepared to pay the amount under Section 11(2)(c).

(3.) IN this connection, I refer to the decision of the Supreme Court in Kamleshwar Prasad v. Pradumanju Agarwal, AIR 1997 SC 2399 : 1997(1) RCR(Rent) 591 (SC) wherein the Supreme Court held that order of the appellate authority under the Act became final and cannot be interfered with by the High Court under writ jurisdiction by taking into account subsequent events and bonafide need for starting business etc. Such requirement will not lapse on the death of the landlord because circumstances to be considered are as on the date and the matter was pending before the lower authorities and not in this Court. It is true that Article 227 of the Constitution is a supervisory proceeding and not a proceeding under Article 226. But, superintendence of this Court is to consider whether the order passed by the lower authorities at that time is correct or not. Therefore, I am of the view that the landlord died subsequently is not a matter that should be considered in a proceeding under Article 227 of the Constitution of India especially on the facts of this case. Appellate Court and revisional court allowed eviction under Section 11(4)(iv) of the Act finding that the building is in a dilapidated condition and not for his use for some business, residence etc. After considering the commission report, courts were satisfied that this old building needs reconstruction. Original eviction petition was filed in the year 1982. After lapse of about two decades, condition of the building will deteroritate only. Therefore, subsequent events of long delay will not affect the need for reconstruction on the basis of the condition of the building as on the date of filing of eviction application. With regard to the contention regarding approved plan and capability of the present landlord etc. I shall deal with subsequently. Question to be considered is whether Ext.P3 order confirming Ext.P2 appellate order based on finding of fact can be quashed by using the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India for error apparent on the face of the record or perverse finding of fact or patent error of law. Position may be different if the landlord died during the proceedings before the rent control authority or appellate authority or even before the revisional Court in appropriate circumstances depending upon the reasons stated for eviction by the landlord. We are concerned with findings of fact entered by the lower authorities confirmed in revision and the effect of subsequent event after revisional order in the fourth round in a proceeding under Article 227 of the Constitution of India, that too, when the reason for eviction is reconstruction of the building considering the condition of the building.