(1.)IN this writ petition Mr. V. Rama Shenoi, learned counsel for the petitioner, who is the landlord of the premises in question, challenges the order of the Accommodation Controller, Ex. P 7.
(2.)THE 2nd respondent in these proceedings, who is the tenant of the premises and who is represented by learned counsel Mr. T. M. Mahalinga Iyer, appears to have invoked the jurisdiction of the Accommodation controller under S. 17 (2) of the Kerala Buildings (Lease and Rent Control) Act, 1959 (Act XVI of 1959), as amended by Act 29 of 1961. Under that section, it will be seen that a landlord is bound to attend to the periodical maintenance and necessary repairs of the building. That section also provides that if a landlord fails to attend to such maintenance or repairs to the building and amenities thereto, within a reasonable time after notice is given by the tenant, it shall be competent for the Accommodation Controller, when so invited by the tenant, to permit the tenant himself to effect the necessary repairs and also to direct that the cost thereof may be deducted with interest at 6 per cent per annum from the rent which is payable by him. In this case that is exactly the direction that his been given in favour of the 2nd respondent by the Accommodation Controller.
Mr. Rama Shenoi, learned counsel for the petitioner, urged that his client has had no opportunity at all of sustaining the objections taken by him before the Accommodation Controller to the application filed by the 2nd respondent in these proceedings. So far as the records go, it is not possible to categorically find that the petitioner can be considered to have had that effective opportunity before the authority concerned. In this connection, it is also necessary to advert to R. 13 of the Kerala Buildings (Lease and Rent Control) Rules, 1959. That rule provides that so far as the accommodation Controller is concerned, when an application is presented to that officer, he shall fix the date on which and the place at which the inquiry in respect of the application will be held. The rule also provides for sending notices to all the parties, namely, the applicant or applicants as well as to the respondent or respondents mentioned in the application. In the said rule there is also a further provision to the effect that, along with the notice a copy of the application is to be sent to the respondent or respondents.
In this case, the main grievance of the petitioner, as placed before me by Mr. Rama Shenoi, learned counsel for the petitioner, is that no copy of the application filed by the respondent before the accommodation Controller has been sent to his client. On the other hand, the stand that is taken by Mr. Mahalinga Iyer, learned counsel for the respondent, appears to be that his client under the letter Ext. R-1 has categorically stated the necessary repairs that had to be effected to the building and that the landlord must be fully aware of the items of work and of the expenses for such repairs. Whatever it may be, I am only adverting to the material rule to show that apart from complying with the various other requirements, there is also an obligation on the part of the Accommodation Controller to send along with the notice to the respondent, a copy of the application filed by the 2nd respondent, in these proceedings. There is also a further provision in sub-rule (2) of R. 13 to the effect that the Accommodation Controller shall, give to the parties a reasonable opportunity to state their case, and he is also to record a brief note of the evidence of the parties & witnesses, if, any, examined on their side. I am only referring to these aspects to show that it is not as if a sort of summary procedure or inquiry has been indicated in the rule. On the other hand, inasmuch as the party will have to be made liable for incurring the expenses, there are adequate provisions made in the rules to the effect that that party must be given an opportunity of placing his objections and also an opportunity of sustaining those objections before the authority concerned. In this case, no such procedure appears to have been followed by the accommodation Controller.
(3.)THEREFORE, without in any manner going into the merits of the claim that appears to have been made by the 2nd respondent in the application filed by him before the Accommodation Controller under S. 17 (3), which is a matter which exclusively arises for consideration by that authority, and also without expressing any opinion on the stand that has been taken by the petitioner in these proceedings, which is again a matter which has to be decided by the Rent Controller, the order under attack, namely Ext. P-7, will have to be set aside and the Accommodation Controller directed to follow the procedure indicated in R. 13 of the rules referred to above, before finally adjudicating one way or the other on the points arising for consideration in these proceedings.
Mr. T. M. Mahalinga Iyer, learned counsel for the 2nd respondent-tenant has stated that on the basis of the order Ext. P-7, dated 23rd October 1962, authorising the tenant to incur the expenses, his client has as a matter of fact spent a sum of Rs. 208 in making the necessary repairs to the building concerned. No doubt this again is very seriously controverted by the learned counsel for the petitioner. It will also be seen that the order ext. P-7 was passed on 23rd October 1962; and there is an order of interim stay passed by my learned brother Raman Nayar. J. , on 2nd November 1962 in CMP. 7603,62. Therefore the proper direction that will have to be given now will be to direct the Accommodation Controller concerned to adjudicate in the first instance, upon the claim made by the 2nd respondent tenant in his application filed before that authority under S. 17 (2) of the statute, read with the relevant rules, having due regard to the objections that may be placed before that authority by the landlord petitioner. If ultimately, the authority comes to the conclusion that the plea of the 2nd respondent will have to be accepted, then an investigation will have to be made by the authority on two respects, namely (1) whether the 2nd respondent has as a matter of fact spent the sum of rs. 208 as alleged by him for the purposes mentioned and which expenses according to him will have to be legitimately borne by the landlord during the period 23rd October 1962 and 2nd November 1962; and (2) whether those items of expenses are expenses which the landlord will have to legitimately bear, having due regard to the provisions of S. 17 (2) of the Act. After considering all these aspects, a final adjudication will be made by the Accommodation controller on the application filed by the tenant, having due regard to the observations contained in this judgment.