A B KUTTAN Vs. FATHIMA

JUDGEMENT

(1.) The dispute between landlord and tenant in this case centres round the interpretation of Section 13 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The 3rd respondent tenant in the Original Petition is the appellant. The Original Petition was filed challenging Ext. P3 order passed by the 2nd respondent-Accommodation Controller as confirmed in Ext. P4 order passed by the 1st respondent-Accommodation Control Appellate Authority. The 3rd respondent who is a tenant of the petitioner approached the 2nd respondent as per Ext.R.3(b) petition under Section 13 of the Act, for a direction to the writ petitioners "to restore within a specified period of the way on the southern side of the leased property for the purpose of entry from the leased property to the petitioner's property and also for restoring the pipeline and the sewer .............." The impugned order Ext. P3 is passed on that petition. The 3rd respondent filed Ext.P3(b) when according to him the amenity of an entry from the leasehold premises to the 3rd respondent's own premises, which was used by him eversince the tenancy, was blocked by the writ petitions by constructing a compound wall. It is to be noted that the 3rd respondent is conducting a bar attached hotel and in the tenanted premises he has four rooms and the rest of the minimum required six rooms are constructed in his own property. Apparently the construction of the compound wall by the petitioners would affect the chances of the 3rd respondent continuing the business in the tenanted premises, since he would not be in a position to comply with the requirement of having ten lettable rooms in the premises and by the construction of the compound wall the contiguit of the premises is now affected.

(2.) The writ petitioners maintained the stand before the 2nd respondent Accommodation Controller that it was necessary to repair the compound wall which had collapsed and hence in order to protect the interest of the other tenants, it was necessary to construct the compound wall. It was also submitted before the 2nd respondent that the writ petitioners had not provided the amenity of a pathway or entry from the tenanted premises to the premises of the 3rd respondent. It was also contended that in any case the entry prayed for is not an amenity as contemplated under Section 13 of the Act. The 2nd respondent, after taking necesssary evidence on both sides and also considering the report of the concerned Village Officer, came to the conclusion that the construction of the compound wall by the petitioners amounted to cutting off or withholding the amenity enjoyed by the 3rd respondent and hence the same was directed to be restored. The petitioners took up the matter in appeal as provided under Section 13(6) before the 1st respondent. But the appeal was dismissed by the 1st respondent as per Ext. P4 order.

(3.) Before the learned single Judge the main contention was that the prayers of the 3rd respondent before the 2nd respondent for restoring the amenity of an entry from the petitioners' property to that of the 3rd respondent cannot be countenanced as it is not an amenity as contemplated under Section 13 of the Act. According to the learned single Judge, Ext. P1 lease deed did not contemplated such a stipulation regarding the entry from the petitioners' property to that of the 3rd respondent and even assuming there was such an arrangement for the use of the pathway in view of the good relationship between the parties, it cannot be termed as an amenity. Accordingly the Original Petition was allowed recording the submission of the petitioners that they would not interfere with the use of water supply and that of sewar by the 3rd respondent through the pathway so long as the tenancy subsisted. Aggrieved the 3rd respondent has filed the Writ Appeal.