KONATH KARUNAKARAN NAMBIAR Vs. LALITHA S N BHAT

JUDGEMENT

(1.) This appeal raises an interesting question. After hearing the counsel in the case, we feel that this appeal must be allowed and the judgment of the learned Judge set aside.

(2.) The appeal is by the 4th respondent in the writ petition which was allowed by the learned Judge quashing and setting aside Exts. P-1 and P-2 orders of the Accommodation Controller and the Appellate Authority, and directing the former to consider and dispose of the application for restoration of amenity in the light of the expression of opinion made by the learned Judge that the appellant must be regarded as responsible for cutting off the amenity, and liable to restore the same. The appellant is rightly aggrieved by this adjudication of his liability by the learned Judge with a direction to the Accommodation Controller to implement the same by a consequential order.

(3.) The appellant was the owner of the building in question, in respect of which an application for restoration of amenity was made to the Accommodation Controller by the 1st respondent herein, the writ petitioner. A rough sketch of the plot and building has been provided to us along with the counter affidavit of the 3rd respondent in the writ petition (the 4th respondent herein). The building in question bears number 105/4B of Kasba Village Kasaragod Taluk. The rough sketch indicates that the Kasaragod - Mangalore road abuts it on the west. As we proceed from the west to the east, we see a hospital building somewhere in the centre of the property and further east of it and almost touching the eastern extremity of the plot there is a residential house of Madhava (the 4th respondent herein), who is a tenant of the appellant, and an outhouse to the south of it in which the appellant himself was living. To the east of this last named structure, namely, the outhouse, there is a three roomed latrine. One of these was used by the appellant, another (the middle one) by the 1st respondent, and the 3rd, by the 4th respondent. The outhouse which we have referred to stands in front of Madhava's residence. The eastern portion of the property, about 12 1/2 cents in extent, was sold by the appellant to the 4th respondent. The 4th respondent thereafter seems to have put up a new latrine for his house, and demolished the three roomed latrine. This led to a complaint from the 1st respondent, the tenant of the Hospital building, who was entitled, by the terms of the tenancy, to the use of one of the rooms in the three roomed latrine (the middle room), for restoration of amenity under S.13(4) of the Kerala Buildings (Lease and Rent Control) Act. 1965. The Accommodation Controller dismissed the application holding that the destruction or the withholding of the amenity in question was by the 4th respondent herein who was the transferee of the eastern portion of the property from the appellant and that he had done the demolition in response to a notice issued from the Municipality that the latrine should be destroyed as it had become a danger to the public. The Accommodation Controller was also of the view that the appellant could not be directed to restore the amenity as he had not either destroyed the amenity or withheld the same within the meaning of S.13(4). The 1st respondent preferred an appeal to the Appellate Authority (The District Collector). That authority sustained the order of dismissal passed by the Accommodation Controller but on a totally different ground. That authority pointed out that the 1st respondent herein, namely, the writ petitioner had, in response to his application to the Municipal Commissioner, been permitted to put up a two roomed latrine, and to adjust the cost of construction from the rent payable by him and had failed to avail himself of the benefit thus allowed. In view of this, the appellate authority was of the opinion that there was no force in his appeal, as the appellant had failed to avail himself of this beneficial order in his favour. Ext. P-1 is a copy of the Accommodation Controller's order and Ext. P-2 is the copy of the appellate authority's order. It was to quash these two orders that the writ petition was filed.