Vs. M.N. Sreenivasan & Ors  INSC 118 (20 February 1998)
Nanavati, Syed Shah Mohammed Quadri Nanavati,J.
appellant is questioning the correctness of the order passed by the High Court
of Kerala in O.P. No. 14665 of 1995-U. He is the landlord and in the suit filed
by him for eviction a decree was passed in his favour. The appeal filed by the
tenant was dismissed by the Appellate authority and the Revision Petition filed
in the High Court also met with the same fate. The appellant thereafter applied
for execution of the decree. At that stage the respondent tenant raised an
objection that the landlord did not have valid permit and permission to
reconstruct the suit premises. The objection was overruled by the executing
court. So the tenant filed a revision application before the Appellate
Authority. it held that the building plans submitted by the landlord were not
consistent with the provisions of the Kerala Building Rules and, therefore, the
landlord cannot be said to be in possession of valid permit and permission from
the concerned authorities. Aggrieved by that order the appellant filed O.P. No.
14665 of 1995-U in the High Court.
also filed O.P. No. 14213/95 for obtaining a direction that the municipality
should give a hearing to him before sanctioning the building plans of the
landlord. the High Court allowed the petition filed by the tenant and dismissed
the petition of the landlord.
learned counsel for the appellant submitted that whether Municipality had given
the required permission and licence to the landlord and whether the Area
Development Authority had granted the necessary permit was already considered
while deciding the Eviction Petition and, therefore, it was not open to the
tenant in execution proceedings to raise those objection. The Appellate
Authority, therefore, went beyond its jurisdiction in holding that the landlord
did not have validly approved plan and permission to reconstruct the building.
He also submitted that the direction given by the High Court, by its earlier
order dated 29.6.1994, that the executing court should satisfy itself before
putting the landlord in possession, that he possesses valid permit and licence
from the Municipality was not correctly construed by the Appellate Authority
and the High Court. According to the learned counsel what the executing court
was required to do under that order was to verify whether the landlord was in
possession of a valid permit and permission for reconstruction. It could not
have been the intention of the High Court that the executing court should scrutinise
the plans and decide legality of the permit and permission.
not in dispute that the question of bonafide requirement of the landlord to
reconstruct the building was decided in his favour. It is also not in dispute
that the Rent Controller had considered whether the landlord was in possession
of the requisite permission from the Municipality before passing the eviction
order. Obviously, the executing court could not have, therefore, gone behind
the High Court, while dismissing the earlier revision application against the
order of eviction had directed was to verify whether in fact the landlord
possessed the requisite permit/permission or not. The High Court had not
directed the executing court to consider if the Municipality had validly
granted the permission to reconstruct. Merely because, the landlord in order to
prove that he possessed such permission had produced documents Exhibits A1 to
A4 that did not entitle the Appellate Authority to go into that question. The
fact that a permit for development was granted by the Area Development
Authority and permission to construct was granted by the Municipality was
proved by those documents.
contention that was raised on behalf of the tenant was that, as the permit
granted by the Area Development Authority was not submitted to the Municipal
Authority for its approval, the landlord did not have a valid permit. This
contention was accepted in view of the evidence of the officer of the Area
Development Authority that after granting permit and approving the plan they
are sent to the Municipal Authority and the Municipality grants approval
thereafter. No such approval was obtained in case of the appellant. What was
overlooked by the Appellate Authority and the High Court was that the landlord
had already obtained permission of the Municipality to reconstruct his building
on 14.8.1990 and this time he had applied for renewal of that permission. It
was, therefore, not required to submit fresh plans to the Area Development
Authority for getting a fresh permit. The landlord did possess a permit granted
by the Area Development Authority and it was not required to be approved again
by the Municipality. He possessed sanctioned plans and the required permission
of the Municipality. It was therefore, not proper to hold that landlord was not
in possession of a valid permit and permission as required by law.
contended by the learned counsel for the respondent that as the High Court has
directed the executing court to go into the question of validity of permit and licence/permission
it was open to it to find out whether the permit and permission granted by the
respective authorities were lawful or not. As stated earlier what the High
Court had really intended was that the executing court should verify before
handing over possession of the suit premises whether the landlord was in
possession of valid permit and permission or not. The High Court had not
directed that validity of the permit and permission should be examined in the
light of the building rules and regulation of the bye- laws of the Area
Development Authority and Municipality.
Appellate Authority, therefore, committed a grave error in dismissing the
execution application and the High Court has also committed the same error by
dismissing the writ application. We, therefore, allow this appeal, set aside
the order passed by the High Court in O.P. No. 14665 of 1995-U and restore the
order passed by the executing court. In view of the facts and circumstances of
the case there shall be no order as to costs.