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PETITIONER: K.N. KARTHIKEYAN (DEAD)

       Vs.

RESPONDENT: M.N. SREENIVASAN & ORS.

DATE OF JUDGMENT:       20/02/1998

BENCH: G.T. NANAVATI, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      Delay condoned.      Substitution allowed.      Leave granted. Heard learned counsel.      The 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. The tenant  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.      The 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

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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.      It is  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 those findings. What 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.      The 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.      It  was  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.

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    The 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.