MARIYAKUTTY UMMA Vs. MOOSAKUTTY HAJI
LAWS(KER)-1968-10-13
HIGH COURT OF KERALA
Decided on October 10,1968

MARIYAKUTTY UMMA Appellant
VERSUS
MOOSAKUTTY HAJI Respondents

JUDGEMENT

- (1.) The petitioner is a landlord who let his building to the 1st Respondent. It is common ground that the building in question was used by the 1st Respondent for running a hotel. There is a well in the building, where the customers of the hotel used to wash themselves after food, and in and around which, garbage used to be deposited. It appears that the collection of garbage in and around the well was found to be either objectionable and in sanitary, or to amount to a nuisance. The Panchayat Health Inspector, the writ petitioner's husband, and the 1st Respondent conferred about the matter and it was agreed that a drain should be constructed at the 1st Respondent's cost over the adjacent property belonging to the writ petitioner, to drain away the refuse water and garbage. This was done and the drain has been in existence now for over 10 years. The 1st Respondent complained that the writ petitioner cut off a portion of the above drainage and thereby obstructed the free flow through the drain. On this allegation, the 1st Respondent applied under S.13 of the Kerala Buildings (Lease and Rent) Control Act 1965 to the Rent Controller for an order directing the landlord to restore the 'amenity' to the tenant. In view of the amendment effected by Act 7 of 1966, the application was dealt by the Accommodation Controller. He found that the drain in question was an 'amenity' within the meaning of S.13 of the Act, and that the writ petitioner was responsible for having cut off a portion of the drain as alleged by the tenant. In that view, he directed the writ petitioner to restore the amenity within one week from the date of the order. Ext. P1 is a copy of the order of the Accommodation Controller, which is sought to be quashed in this writ petition.
(2.) Two grounds were urged by the petitioner's counsel. First that the drainage in question was not an 'amenity' within the meaning of S.13 of the Act; and second that the order of the Accommodation Controller offends the principles of natural justice. The Act itself no where defines the terra 'amenity', In the absence of a statutory definition, we have essentially to be guided by the dictionary meaning of the term. In the Concise Oxford Dictionary, one of the meanings given for 'amenity' is 'pleasantness (of places, persons etc.)'. This shade of the meaning of the term is seen elaborated in the legal dictionaries and other authorities which were cited, and to which I shall refer. For instance, in the 3 Corpus Juris Secundum 1944 the word 'amenity' has been explained as follows:- "Amenity: In real properly law, such circumstances, in regard to situation, outlook, access to a watercourse, or the like as enhance the pleasantness or desirability of an estate for purposes of residence, or contribute to the pleasure and enjoyment of the occupants rather than to their indispensable needs; restraining the owner from doing that with and on his own property which, but for a grant or covenant, he might lawfully have done." The above exposition emphasizes that the expression 'amenity' in relation to immovable property signifies pleasant circumstances, or features or advantages.
(3.) In Ullal Dinkar Rao v. M. Ratna Bai (AIR 1958 Mysore 77) a bathroom and a cowshed were considered 'amenities' in respect of a building, and the landlord whose wilful neglect led to their destruction was directed to restore the amenities. in Ayyan Ammal v. Vellayammal & Others ( AIR 1966 Mad. 355 ). the facts were these. There were 21 rooms in a building occupied by 10 tenants, all of whom were members of the Brahmin community. The petitioner who applied to the Rent Controller was the tenant of room Nos. 8 and 9. Room No. 1 was in the tenancy of one Subramonian], Room No. 21 which was the subject matter of the application was adjacent to room No. 1 with an inter connecting door. This was also subsequently allotted to Subramoniam as additional accommodation. The tenant of Room Nos. 8 and 9 complained that the allotment of Room No. 21 of Subramoniam had deprived all the other tenants of the building, of an 'amenity', and prayed for restoration of the same. It was found that room No. 21 had been used in common by all the tenants for a variety of purposes; sometimes for segregation by the ladies during certain days in the month when they wished to be separate according to custom and social habits; sometimes as a 'quarantine' room in times of epidemics; and at yet other times for purposes of confinement and delivery. It was also used for a short time for keeping a dead body till removal for funeral. On these facts, Ananthanarayanan J. (as he then was) had no hesitation in holding that the room was an 'amenity,' within the scope of S.17(4) of the Madras Buildings (Lease and Rent) Control Act and in sustaining; the order of the Rent Controller directing restoration of the 'amenity'. The decision of the Mysore High Court, and an earlier decision of the Madras High Court were referred to. In Swaminatha Iyer v. Ramachandra Kurup ( 1965 KLT 356 ) my learned brother Mathew J. found it difficult to accept the contention that a kitchen and well attached to a building are amenities, but the decision actually turned on the learned Judge's finding that the kitchen had been dismantled and the well had been filled up by the Municipality, and certainly not on account of the negligence or default of the landlord. On that finding it was held that the tenant was not entitled to relief under S.13 of the Act for restoration of the amenity.;


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