B MADHAVA Vs. LALITHA S N BHAT

JUDGEMENT

(1.) The important question of law raised in this writ petition is whether the Appellate Authority exercising power under S.13(6) of the Kerala Buildings (Lease and Rent Control) Act, 1965, Act 2 of 1965, for short 'the Act' is competent to remand the matter to the Accommodation Controller for fresh disposal after enquiry and in accordance with law. The petitioner would contend that no such power is conferred on the Appellate Authority, namely, the District Collector.

(2.) Now the facts: The 1st respondent Dr. Lalitha S. N. Bhat claims to be the lessee of the building situated in the western portion of the property comprised in Rule S. No. 105/4A of Kasba village, Kasargod Taluk. It would appear that the petitioner was originally the tenant in respect of the building in the eastern portion of that property. The entire property at one time belonged to the 2nd respondent (now deceased), whose legal representatives are supplemental respondents 5 to 8. The petitioner is stated to have purchased the eastern portion of the property including the residential building of which he was a tenant from the 2nd respondent (now deceased). In the eastern portion there was an out-house to which was attached a latrine having three rooms. The contention of the 1st respondent appears to be that the middle room of the three roomed latrine was allowed for the use of the inmates of the house let to her by the 2nd respondent (now deceased). After having obtained the sale of the eastern portion of the property under the registered sale deed dated 9-5-1975, on receipt of a notice from the Municipality for the demolition of the latrines, which according to the Municipality was in a dilapidated condition, the petitioner demolished it. The 1st respondent moved the 3rd respondent, the Accommodation Controller, for getting the amenities of making use of the portions of the latrine restored to her, making the petitioner herein and the 2nd respondent (now deceased) herein as parties to the proceedings. The 3rd respondent having dismissed the application, and the appeal to the 4th respondent, the District Collector, having found to be unsuccessful, the 1st respondent herein moved this Court by O. P. No. 293 of 1977 which was disposed of by this Court by the judgment dated 22-1-1979, a true copy of which is Ext. P-1. The matter was taken up in appeal by the 2nd respondent herein (now deceased) in W. A. No. 72 of 1979, which was disposed of by the Division Bench by the judgment dated 4-7-1979 (reported in AIR 1960 Ker. 80 ), a true copy of which is Ext. P2. The operative portion of the judgment contained in Para.7 reads as follows:

(3.) The counsel for the petitioner submitted that the petitioner had never admitted that the 1st respondent herein had been enjoying the alleged amenity, for the restoration of which she had now moved the Accommodation Controller. He also submitted that the petitioner was not the landlord of the 1st respondent. His contention, therefore, is that accepting the view expressed by the 3rd respondent, Accommodation Controller, earlier, the appeal should have been dismissed without prolonging the life of litigation between the parties by remand. He would also contend that what was alleged to be amenity enjoyed by the 1st respondent was not really an amenity falling within the mischief of S.13(1) of the Act. Apart from these submissions made on the merits of the case the counsel would submit that the remand was without jurisdiction, and, therefore, for that reason alone Ext. P3 order is bound to be quashed. In support of his contention that the remand by the 4th respondent is without jurisdiction the counsel relied on Clause (b) of Sub-s.(6) of S.13 of the Act which reads as follows :