V Z CHERIAN Vs. JESSY WAS

JUDGEMENT

(1.) Can an application for appropriate directions regarding reconstruction or reallotment under the second and third provisos to S.11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 be maintained by a tenant who has not been completely evicted from the building which was subject matter of the R.C.P. or continues to retain possession of a portion of the said building is one of the question arising for consideration in this Civil Revision Petition.

(2.) The landlord is no more and his son has got himself impleaded as additional revision petitioner. After a prolonged litigation which commenced way back in 1973, the landlord could obtain an order of eviction against the respondents - tenants (legal heirs of the deceased original tenant) under S.11(4)(iv). The delay was mainly due to a plea of kudikidappu raised by the tenant which was ultimately repelled by the Land Tribunal upon a reference case initiated in that context. The landlord could obtain possession in execution of the Rent Control Court's order only on 23.6.1993. Eviction order in favour of the landlord directed reconstruction within six months in accordance with municipal building permit Ext. A6 marked in the case. But the long delay in the matter of culmination of the proceedings before the Rent Control Court has had its impact on the validity of Ext. A6. The Alappuzha Development Authority was in the meanwhile constituted and a new scheme and new rules governing building developments within the limits of the Alappuzha Municipality came to be introduced. The Alappuzha Development Authority issued letter to the landlord stating that the area in respect of which Ext.A6 was issued had been ear-marked for residential purposes only under the new Town Planning Scheme and therefore the landlord's application for revalidation of Ext.A6 and for permission to reconstruct the old building in accordance with Ext.A6 so that there will be strict compliance with the directions issued by the Rent Control Court regarding reconstruction and reallotment was turned down. The tenants filed I.A. No. 173 of 1994 under the second and third provisos to S.11(4)(iv) seeking imposition of fine upon the landlord for not haying carried out the reconstruction in terms of the eviction order passed under S.11(4)(iv) and also for grant of permission to the tenants to reconstruct their portion of the building themselves. The Rent Control Court upheld the various contentions raised by the landlord including the contention that the directions issued by the Rent Control Court had become incapable of compliance on account of supervening statutory reforms.

(3.) The Rent Control Appellate Authority however on an appeal by the tenants relied on the decision of this Court in George v. Thressia, 1992 (1) KLT 65 to hold that the powers of the court are not restricted and any expediency can be resorted to. Noticing that the complaint of the tenants is that the landlord is not taking appropriate steps for reconstruction, the Appellate Authority ruled that the power for taking appropriate steps for reconstructions can be given to the tenants and accordingly allowed the appeal permitting the tenants to carry out the reconstruction of the entire schedule premises according to the plan on the basis of which the eviction order was passed. Nevertheless the Appellate Authority also ordered that "If such full reconstruction is not possible due to the non eviction of tenants, they are permitted to reconstruct only their rooms and the costs of reconstruction they can recover from the landlord". That Authority went to the extent of directing the Municipality, Alappuzha and the Development Authority, Alappuzha "to consider the question of approval of plan for the full building or part building as the tenants want, on merits".