IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18635 of 2009(Y)
1. CHALILAKATH HASSAN HAJI
... Petitioner
Vs
1. ACCOMMODATION CONTROLLER & TAHSILDAR
... Respondent
For Petitioner :SRI.HARISH R. MENON
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/07/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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W.P.C.No.18635 OF 2009
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Dated this the 14th day of July, 2009
JUDGMENT
Pius C.Kuriakose, J.
This is a writ petition under Article 226 of the Constitution
filed by the landlord. The respondents are respectively the
Accommodation Controller, Tirur and the tenant. The tenant filed
a petition purporting to be under Section 13 of the Act 2 of
1965 before the first respondent Accommodation Controller
alleging that the writ petitioner landlord has started demolishing
the other portions of the larger building, of which the building
occupied by the tenant is also a part, and seeking a direction
that the landlord be restrained from demolishing and removing
the other portions of the larger building. On entertaining the
above petition, a copy of which was placed before us by Sri.M.K.
Chandramohan Das learned counsel for the second respondent
tenant, the first respondent Accommodation Controller issued
Ext.P3. Ext.P3 styled as a notice, directs the writ petitioner to
appear and submit objection to the ACP filed by the second
respondent tenant. Ext.P3 also directs the writ petitioner to
WPC.No. 18635/2009 2
refrain from demolishing the other rooms in the building. Ext.P3
is impugned in this writ petition on the various grounds
including the ground that the ACP filed by the second
respondent, upon which Ext.P3 is issued, is not maintainable in
law. Ext.P4 affidavit is filed by the writ petitioner undertaking
that he will not cause any damage at all to the building occupied
by the second respondent tenant by his demolition of the other
rooms belonging to him. Ext.P2 interim order issued by the
Munsiff Court, Parappanangadi at the instance of the second
respondent against the writ petitioner is also relied on by the writ
petitioner to show that the regular civil court is already in seizin
of the same issue.
2. We have heard the submissions of Sri.Harish R.Menon,
learned counsel for the writ petitioner and those of
Sri.M.K.Chandramohan Das, learned counsel for the second
respondent tenant. We have also heard the submissions of
Smt.Latha.T.Thankappan, learned senior Government Pleader for
the the first respondent Accommodation Controller.
3. Our attention was drawn by the learned counsel for the
writ petitioner to Sections 13 and 17 of the Act 2 of 1965. It
WPC.No. 18635/2009 3
was argued by Sri.Harish R.Menon that the main ACP filed by the
second respondent is not maintainable in law since no amenity,
which was being enjoyed by the second respondent tenant, has
been cut off. Only when amenity is cut off by the landlord with
the intention of compelling the tenant to vacate, the
Accommodation Controller gets jurisdiction under Section 13 of
the Act 2 of 1965 and the ACP becomes maintainable in law,
according to the learned counsel.
3. Sri.M.K.Chandramohan Das, the learned counsel for the
second respondent would argue that Ext.P3 is only an interim
order. The writ petitioner has been directed by a statutory
authority to appear before the same court to show cause why
the interim order should not be made absolute. This court will
not be justified in interfering with the interim order Ext.P3 passed
by the statutory authority -first respondent since that order
cannot be said to be passed without jurisdiction. It is open to the
writ petitioner to appraise the first respondent of the
jurisdictional aspect of the matter and get the interim order
Ext.P3 varied by the first respondent himself.
4. We have anxiously considered the rival submissions
WPC.No. 18635/2009 4
addressed at the Bar and we have carefully gone through the
copy of ACP dated 26/6/2009 filed by the second respondent.
We have kept in mind Sections 13 and 17 of the Act 2 of 1965,
the two provisions which confer jurisdiction upon the
Accommodation Controller. Having gone through the ACP filed
by the second respondent, we do not find any specific allegation
to the effect that any amenity, which was being enjoyed by the
second respondent, has been cut off by the writ petitioner
landlord with the objective of compelling the tenant the second
respondent to vacate the building. On the contrary, the
allegations raised in the ACP are only to the effect that the other
rooms in the larger building, of which the building occupied by
the second respondent tenant is a part, are being demolished by
the writ petitioner. It is doubtful whether the issue raised by the
second respondent in the ACP falls within the powers of the
Accommodation Controller under Section 13. We also notice that
the regular Civil Court has already been moved by the second
respondent. That is a circumstance which supports the argument
of Harish R.Menon that the remedy of the second respondent,
even if he has genuine grievance, lies before the Civil Court and
WPC.No. 18635/2009 5
not before the Accommodation Controller. However, since the
Accommodation Controller is yet to dispose of the main petition,
we do not propose to decide the issue finally. We dispose of this
writ petition issuing the following directions ;
i). Ext.P3 to the extent it directs the
writ petitioner to refrain from demolishing
the rooms other than the room which is
subject matter of the lease in favour of
the second respondent, will stand stayed.
We record the undertaking given by the
writ petitioner in Ext.P4 to this court and
we also notice Ext.P2 interim order
passed by the Civil Court in the above
context.
ii). The first respondent is directed
to take up the main ACP dated 26/6/2009
filed by the second respondent, hear both
sides regarding the maintainability of that
ACP and take an early decision on that
issue.
WPC.No. 18635/2009 6
iii). Decision regarding the
maintainability of the ACP filed by the
second respondent will be taken by the
first respondent early and at any rate
within 10 days of receiving a copy of this
judgment.
It is recorded that the writ petitioner has been served with a
copy of the ACP filed by the second respondent. It is made clear
that nothing stated in this judgment will preclude the second
respondent from seeking and obtaining appropriate reliefs from
the regular civil court.
PIUS.C.KURIAKOSE,JUDGE
P.Q.BARKATH ALI, JUDGE
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