THANKAPPAN Vs. ACCOMMODATION CONTROLLER AND TAHSILDAR ALLEPPEY

JUDGEMENT

(1.) THE two petitioners in this writ application are respectively the husband and wife. THE 2nd petitioner is the owner of a building, called Kalyan Bhavan, situated in the town of Alleppey. This was in the occupation of a tenant and the tenant vacated the building on 16th January 1963. THE second petitioner, the wife sent a notice to the Accommodation Controller on 19th January 1963 (Ext. P-1) in accordance with the provision in S. 4 of the Kerala Buildings (Lease & Rent control) Act, 1959. In this notice she said that she has no other building of her own inside the Alleppey Town, and that she wants the particular building in question for her own occupation. Notwithstanding the statement, the order Ext. P-2, dated 28th January 1963 was sent by the 1st respondent to the 2nd petitioner intimating her that the building has been allotted to the district Medical Officer at Alleppey for his occupation. By Ext. P-3, the 2nd petitioner informed the 1st respondent that the building is required for her own occupation and therefore no allotment can be made to the District Medical officer or anybody else. THE petitioner alleges that notwithstanding Exx. P-1 and P-3, the 1st respondent has insisted that the petitioner should vacate the building. In these circumstances it is prayed that Ex. P-2 should be set aside.

(2.) THIS order is sought to be supported by relying on the provisions of S. 4 of the Kerala Buildings (Lease and Rent Control) Act, 1959. It is necessary to extract the whole section. S. 4 is in these terms: "4. Notice of vacancy - (1) (a) Every landlord may within fifteen days before completion and shall, within fifteen days after the construction or reconstruction of a building intended to be let out or after a building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by release from requisition by the Government or any other competent authority, give notice of the availability or vacancy in writing to the Accommodation Controller. Every tenant shall within fifteen days of his vacating a building occupied by him give notice of the same in writing to the accommodation Controller: Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in sub-section (3), Cl. (iv) of sub-section (4)and sub-sections (7) and (8) of S. 11. (b) Every notice given under clause (a) shall contain such particulars as may be prescribed. (2) If the tenant of a building puts another person in occupation thereof and does not re-occupy it within a period of three months, then, on the expiry of such period, the tenancy shall be deemed to have terminated and it shall be the duty of the tenant, and also of the landlord, if he is aware of such termination, to give notice thereof in writing to the accommodation Controller within fifteen days of such termination: Provided that the tenant may, before the expiry of three months, apply to the Accommodation Controller to re-occupy the building within a period of six months and if such permission is granted, this sub-section shall have effect as if for the period of three months specified therein, a period of six months were substituted. Explanation.- THIS sub-section shall not apply where the building has been sub-let by a tenant entitled to do so, after giving due notice to the Accommodation Controller under subsection (1) and in conformity with the provisions of this section. (3) If, within fifteen days of the receipt by the accommodation Controller of a notice under sub-section (1) or sub-section (2), the Accommodation Controller does not intimate to the landlord in writing that the building is required for the purposes of the State or Central Government Or of any local authority or of any public institution or for the occupation of any officer of such Government, or local authority or for the occupation of such class of non-officials as may be prescribed having regard to the importance of their service to society, the landlord shall be at liberty to let the building to any tenant or to occupy it himself. (4) The landlord shall not let the building to a tenant or occupy it himself, before the expiry of the period of fifteen days specified in sub-section (3) unless in the meantime he has received intimation that the building is not required for the purposes or for occupation by any of the persons specified in that sub section. (5) If the building is required for the purposes of the state or Central Government or a local authority or any public institution or for the occupation of any officer of such Government or local authority, or for occupation by any of the persons specified in sub-section (3), the landlord shall deliver possession of the building to the Accommodation Controller and the Government, the local authority, or public institution or officer or person shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the Accommodation Controller received notice under sub-section (1) or sub-section (2), the terms of the tenancy being such as may be agreed upon between the landlord and the tenant and in default of an agreement, as may be determined under S. 5: Provided that the rent payable shall be the fair rent, if any, fixed for the building under the provisions of this Act, and if no fair rent has been so fixed, such fair rent as may be determined in accordance with the provisions of this Act: Provided further that a building used as a residential building, shall not be used as a non-residential building or vice versa unless the Accommodation Controller after hearing the landlord grants permission under sub-section (1) of S. 17: Provided also that no structural alterations shall be made in the building, unless the consent of the landlord is also obtained therefor. (6) (a) Where a landlord has two or more residential buildings in the same city, town or village and they have not been let by him, the landlord may choose any one of such buildings for his own occupation and shall give notice to the Accommodation Controller specifying the building so chosen by him and every other building not so chosen. (b) When giving notice as aforesaid, the landlord shall also specify therein (i) Whether any building other than the one chosen by him under clause (a) has been continuously in the occupation of any member of his family or of any dependant of the landlord; or (ii) Whether he requires any such building for the occupation of any member of his family. (c) In the case referred to in sub-clause (i) of clause (b), the Accommodation Controller may, if he is satisfied that the occupation of the building by any member of the family, or of any dependant of the landlord is bona fide, make an order permitting the landlord to allow such member or dependant to continue to occupy the building; and if the accommodation Controller is not so satisfied, he shall make an order refusing such permission. (d) In the case referred to in sub-clause (ii) of clause (b), the Accommodation Controller may, if he is satisfied that the building is required by any member of the family of the landlord bona fide for such occupation, make an order permitting the landlord to allow such member to occupy the building; and if the Accommodation Controller is not so satisfied, he shall make an order refusing such permission. (e) Any landlord who is aggrieved by any order passed by the Accommodation Controller under clause (c) or clause (d) may, within fifteen days from the date of the receipt of such order, prefer an appeal in writing to the District Collector within whose jurisdiction the building in respect of which the order appealed against is situate and he shall pass such orders on the appeal as he may think fit. (f) Every notice given by the landlord under clause (a)shall, in so far as it relates to any building other than the one chosen by him for his own occupation, be deemed to be a notice under sub-section (1) and the provisions of sub-section (3) shall thereupon apply in respect of such buildings: Provided that in respect of any building referred to in clause (a) whereof an order under sub-clause (c) or (d) or (e) is made, the provisions of sub-section (3) shall apply as if notice had been given by the landlord under sub-section (1) immediately after the lapse of a period of fifteen days from the date of receipt by the landlord of the order passed by the Accommodation Controller or, if an appeal has been preferred to the district Collector against that order within that period, as if notice had been given as aforesaid by the landlord on the date of the order passed on the appeal. (g) The Accommodation Controller shall allot the building vested in him under sub-s. (5) or sub-section (6) to persons mentioned in sub-section (3) according to the rules and priorities prescribed by the Government. (7) (a) Any officer empowered by the Government in this behalf may summarily dispossess (i) any landlord, tenant or other person occupying any building in contravention of the provisions of this section or any landlord who fails to deliver possession of any building under sub-section (5), (ii) Any officer, person, local authority or public institution continuing to occupy, or failing to deliver possession of, any building after the termination of his or its licence to occupy such building, and take possession of the building including any portion thereof which may have been sub-let: Provided that in cases where any landlord has been refused permission for the occupation of a building under clause (c) or clause (d) of sub-section (6), not less than one week's notice to show cause to the contrary shall be given before action is taken under this subsection. (b) if free access to the building is not afforded to the officer empowered under clause (a), he may, between 6 a. m. and 6 p. m. , after giving reasonable warning and facility to withdraw to any woman not appearing in public according to the customs of the country remove or open any lock or bolt or break open any door or do any other act necessary for effecting such dispossession. (c) Any landlord, tenant or other person or any officer, local authority or public institution, liable to be summarily dispossessed under clause (a) shall pay to the Government (i) the fair rent payable for the building under the provisions of this Act for the period of his or its occupation or possession thereof as described in that clause; and (ii) the expenses, if any, incurred by the Government in effecting such summary dispossession, as determined by them, which determination shall be final. (8) Nothing contained in this section shall apply (a) to any building of which the rent does not, or where the rent has not been fixed, the fair rent would not, when fixed, exceed fifteen rupees per mensem; or (b) to any building or buildings owned by any company, association or firm, whether incorporated or not and bona fide intended solely for the occupation of its officers, servants or agents and situated in the same city, town or village".