BHASKARAN Vs. BALAN
LAWS(KER)-2003-8-61
HIGH COURT OF KERALA
Decided on August 27,2003

BHASKARAN Appellant
VERSUS
BALAN Respondents

JUDGEMENT

- (1.) Landlord is the writ petitioner. First respondent tenant filed an application under S.17(2) of the Kerala Buildings (Lease and Rent Control) Act complaining that the landlord is not carrying out the periodical repairs and maintenance to the building though the same was requested by the tenant. Accommodation Controller referred the matter to the Village Officer, Edakkad for verification and report. Village Officer pointed out that the tenant is conducting business in the petition schedule building E.P.XII / 195, 196 of Edakkad Panchayat and that the building requires urgent repairs especially due to ensuing monsoon season. Accommodation Controller directed the landlord to carry out the repair and maintenance to the building within 15 days from the receipt of the said order. It was further ordered that on failure to carry out the said work within the stipulated time the tenant could repair the building at his own cost and the same could be adjusted towards rent of future months payable to the landlord.
(2.) Landlord aggrieved by the order of the Accommodation Controller filed a Review Petition under S.23(1)(k) of the Kerala Buildings (Lease and Rent Control) Act. It was pointed out that though the Village Officer had filed his report on 26.2.2002 no opportunity was given to file objection to the said report and without hearing him the impugned order was passed. Further it was also stated in the Review Petition that the tenant had not complied with the mandatory condition of giving notice to the landlord before filing petition before the Accommodation Controller. Accommodation Controller without perusing any of the objections raised by the petitioner dismissed the Review Petition by order dated 3.7.2002. Aggrieved by the same this Writ Petition has been filed.
(3.) Counsel appearing for the petitioner Sri. V. Rajagopal submitted that the tenant had not complied with the statutory requirement of issuing notice under S.17(2) of the Act before filing of the petition before the Accommodation Controller. Counsel further submitted that the Accommodation Controller has also not fixed the quantum of cost of the repair, which is also essential before passing orders on the application. Counsel appearing for the tenant respondent submitted that though he had not issued any written notice he had requested the landlord orally to carry out the periodical maintenance and necessary repairs to the building. Further counsel also submitted no written notice is contemplated under S.17(2) of the Act. We may examine the rival contentions raised by counsel on either side. First we may examine whether notice has to be issued before moving the Accommodation Controller. Relevant provision which is germane for consideration in this case is S.17(2) which we extract below for easy reference. "17(2) Notwithstanding any law, custom, usage or contract to the contrary the landlord shall be bound to attend to the periodical maintenance and necessary repairs of the building. If landlord fails to attend to such maintenance or repairs to the buildings and amenities thereto within a reasonable time after notice is given by the tenant, it shall be competent for the Accommodation Controller to direct on application by the tenant that such maintenance and repairs may be attended to by the tenant and that the charges and cost thereof may be deducted with interest at six per cent per annum from the rent which is payable by him." The provision obliges the landlord to attend to the periodical maintenance and necessary repairs of the building notwithstanding any law, custom, usage or contract to the contrary. Therefore once the building has been rented out it is the duty of the landlord to carry out maintenance and necessary repairs to the building. On failure to do so tenant is required to issue a statutory notice to the landlord to carry out such maintenance and repairs within a reasonable time. What is reasonable time is a question of fact. No time limit is fixed under S.17(2), but notice is a mandatory requirement. The section also stipulates notice. There is no indication regarding the mode of issuance of notice. Counsel appearing for the tenant submitted that oral notice is sufficient while counsel appearing for the landlord maintained the stand that written notice is necessary.;


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