George K Varghese v. Rosamma Abraham

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944** **RCREV. NO. 369 OF 2018** **AGAINST THE JUDGMENT DATED 07.07.2018 IN RCA NO.5 OF 2015 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-I,KOTTAYAM FILED AGAINST THE ORDER COMMON ORDER IN RCP NO.1 OF 2013 DATED 07.07.2018 ON THE FILE OF THE RENT CONTROL COURT, KANJIRAPPALLY** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** GEORGE K VARGHESE AGED 55 YEARS S/O K T VARGHESE, KALLARAKKAL MALIAKAL HOUSE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADVS. NOBEL RAJU SRI.C.R.JAYAKUMAR SRI.S.K.PRADEEP ## **RESPONDENT/RESPONDENT/RESPONDENT:** ROSAMMA ABRAHAM AGED 69 YEARS W/O. K ABRAHAM, KOZHIPOOVANANIKAL, MUNDAKAYAM PO, KANJIRAPALLY TALUK, KOTTAYAM - PROPRIETOR, BABY TALKIES, KANJIRAPPALLY PO, KOTTAYAM. 686 513 BY ADVS. SRI.SHAJI THOMAS SRI.JEN JAISON THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 20.12.2022, ALONG WITH RCRev..28/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos.369 of 2018 and 28 of 2019 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944** **RCREV. NO. 28 OF 2019** **AGAINST THE JUDGMENT DATED 07.07.2018 IN RCA NO.41 OF 2014 OF THE RENT CONTROL AUTHORITY-I, KOTTAYAM ARISING OUT OF ORDER IN RCP NO.1 OF 2013 DATED 31.10.2014 OF MUNSIF COURT, KANJIRAPPALLY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** ROSAMMA ABRAHAM, AGED 63 YEARS W/O.K.S.ABRAHAM, KOZHIPOOVANANIKAL, MUNDAKAYAM P.O., MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM, PROPRIETOR, BABY TALKIES, KANJIRAPPALLY P.O. BY ADVS. K.RAMACHANDRAN SHAJI THOMAS JEN JAISON ## **RESPONDENT/RESPONDENT/PETITIONER:** GEORGE K.VARGHESE, AGED 49 YEARS S/O.K.T.VARGHESE, KALLARACKAL MALIAKAL HOUSE, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM- 686507. BY ADV SRI.NOBEL RAJU THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.12.2022, ALONG WITH RCRev..369/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos.369 of 2018 and 28 of 2019 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.Nos.369 of 2018 and 28 of 2019** **------------------------------------------Dated this the 20[th] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These R.C.Rs. have been filed under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act). R.C.R.No.369/2018 has been filed by the appellant in R.C.A.No.05/2015 on the file of the Rent Control Appellate Authority (RCAA), Kottayam. The appellant is the petitioner-landlord in R.C.P.No.1/2013, on the file of the Rent Control Court (RCC), Kanjirappally. R.C.R.No.28/2019 has been filed by the respondent-tenant in the R.C.P. against the judgment in R.C.A.No.05/2015. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.1/2013 was filed by the petitioner-landlord for fixation of fair rent under Section 5 of the Act. According to the petitioner, he obtained right over the petition schedule building as per registered document no.3931/02 of SRO, Kanjirappally dated 05/12/2002 executed in his favour by his mother. Thus he became the landlord of the petition schedule building. According to the petitioner, the petition schedule building was let out to the husband of the respondent on R.C.R.Nos.369 of 2018 and 28 of 2019 4 05/12/1947 for a monthly rent of ₹600/-. The rent agreement was renewed on 01/12/1980 and then the rent was enhanced to ₹800/- per month. The petition schedule building is used as a cinema theatre along with other structures like ticket room, office room, car shed, bathroom, generator room etc. The respondent's husband was conducting the theatre and on his death on 23/09/2012, the tenancy devolved on the respondent. The petition schedule building has a plinth area of 6802 sq.ft. The other structures like ticket room, office room, car shed, bathroom, generator room etc., has an extent of more than 1000 sq.ft. The property in which the buildings are situated has an extent of 50 cents. The petition schedule building is situated in the heart of Kanjirappally town and on the southern side of N.H.220. There are several public and private institutions situated in the vicinity of the building. The building is situated in a commercially important area having easy access to the bus stand, hospital, banks, government offices etc. The petition schedule building is a two storeyed building having a plinth area of 6802 sq.ft. in the ground floor and 722 sq.ft. on the first floor (balcony). The entire property including the 50 cents of property in which the buildings are situated is now used by respondent for the beneficial enjoyment of the property. The buildings including the vacant land would now fetch a market value of more than ₹10 crores. The prevailing rate of rent fixed by the Kanjirappally Grama Panchayath in the locality for commercial buildings is more than ₹8/- per sq.ft. The rent prevailing in the area is between ₹20/- to ₹25/- per sq.ft. Based on the said prevailing rate, the petitioner is entitled to get rent at the rate of R.C.R.Nos.369 of 2018 and 28 of 2019 5 ₹30/- per sq.ft. The respondent is paying more than ₹1 lakh as entertainment tax for the cinema theatre being conducted in the petition schedule building. The cost of construction of the buildings in the property would be at least ₹1 crore. The rent the petitioner is presently getting is only ₹800/- month, that is, 12 paise per sq.ft. and therefore, the petitioner prays for fixation of fair rent at the rate of ₹30/- per sq.ft. 3. The respondent denied the allegations in the R.C.P. and _inter alia_ contended that the building is an old and dilapidated one. Extensive repairs were conducted by him by spending considerable amount. No comparison can be made with the rent of the buildings situated in the locality as they are new buildings with all the necessary amenities. The rent being paid is reasonable and therefore the contention of the respondent is that the petitioner is not entitled to the reliefs prayed for. 4. PW1 to 8 were examined and Exts.A1 to A20 were marked on the side of the petitioner. DW1 and DW2 were examined and Exts.B1 to B12 were marked on the side of the respondent. The reports and plan of the advocate commissioner have been marked as Exts.C1 to C2(e). Third party exhibits have been marked as Exts.X1 to X4. The RCC on an appreciation of the oral and documentary evidence and after hearing both sides, fixed the fair rent of the building at the rate of ₹2.75/per sq.ft. for the tenanted premises, which according to the RCC has a total area of 13170 sq.ft. The petitioner as well as the respondent filed appeals. Both the appeals have been dismissed. Aggrieved, both the petitioner as well as the respondent have R.C.R.Nos.369 of 2018 and 28 of 2019 6 come up in revision. 5. The only point that arises for consideration is whether the concurrent findings of the RCC and RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Sri.Nobel Raju, the learned counsel for the petitioner in R.C.R.No.369/2018 and Sri.Shaji Thomas, the learned counsel for the petitioner in R.C.R.No.28/2019. 7. Under Section 20, the revisional court has to satisfy itself of the legality, regularity or propriety of the order or proceeding of the appellate authority. It can interfere when the impugned order is illegal, irregular or improper. It can also interfere if the view taken by the RCC or the RCAA, is perverse, or when the statutory scheme has not been kept in mind. If the approach made by the authorities is in any way perverse, then this Court in exercise of its jurisdiction under Section 20 can certainly look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the basis of the pleadings and the evidence on record. 8. The finding of the RCC that the tenanted premises has an area of 13170 sq.ft. is disputed by the respondent, who contends that this area has been arrived at by taking into account or including the vacant land situated appurtenant to the tenanted premises. This according to the learned counsel for the respondent is not permissible. On the other hand, it was submitted by the learned counsel for the petitioner that the respondent cannot run a theatre successfully without parking space and therefore the R.C.R.Nos.369 of 2018 and 28 of 2019 7 RCC has rightly taken into account the entire area for fixation of fair rent, which according to him suffers from no infirmity. 9. In the R.C.P., the specific case of the petitioner is that the plinth area of the petition schedule building is 6802 sq.ft. The other structures like ticket room, office room, car shed, bathroom, generator room etc,. are situated in an area having more than 1000 sq.ft. Therefore, the plinth area of the tenanted premises for which the rent is to be fixed can be taken as 7802 sq.ft. based on the pleadings of petitioner in the R.C.P. It is true that when rent is fixed, the amenities available including the parking space should be taken into consideration. The respondent is paying rent at the rate of ₹800/- per month, that is, around 12 paise per sq.ft, evidently a paltry sum. The fact that the building is situated in a commercially important area cannot be doubted, which is clear from the commission report in this case, which is not seen disputed or objected to by the respondent. The RCC is seen to have referred to the parameters laid down by a Division Bench of this court in **Edger Ferus vs Abraham Ittycheria, 2004 (1) KLT 767** in fixing the fair rent. However, the rate of rent fixed at the rate of ₹2.75 per cent seems quite low for the tenanted premises. The petitioner relies on the testimony of PW3, PW4, PW5, PW6 and PW7 as well as Exts.X4, A14, A15, A19 and A20 rental agreements to substantiate his case relating to the rate of rent prevailing in the locality. Ext.X4 agreement, proved through PW3 shows that the monthly rent of a building in which the South Indian Bank which is admittedly situated opposite the tenant premises having a plinth area of 1550 sq.ft., is ₹38750/-. R.C.R.Nos.369 of 2018 and 28 of 2019 8 The agreement also contains a clause for enhancement of rent at the rate of 25% every 5 years. Exhibit A4 rental agreement proved through PW4 shows that the rate of rent for a building having an area of 620 sq.ft. is ₹15500/- , that is, ₹25/-per sq.ft. Exhibit A15 rent receipt proved through PW5 shows the rent for a building having an area of 700 sq.ft., is ₹23,000/- that is, ₹32.85/- per sq.ft. Exhibit A19 proved through PW6 shows that the building in which the Federal Bank is situated including its ATM room having a carpet area of 3472 sq.ft. is fetching a rent of ₹76,384/- that is, ₹22/per sq.ft. PW7, another tenant of a building situated nearby through whom Ext.A20 has been proved shows that the monthly rent being paid by him is ₹6,500/- for a total area of 1 acre 25 cents. The fact that the buildings covered by the aforesaid rental agreements are situated near the petition schedule building is not disputed 10. It is true, as pointed out by the learned counsel for the respondent that the buildings mentioned in the aforesaid rent deeds are new constructions having all the necessary amenities. To discredit the case of the petitioner, the respondent relies on the testimony of DW1 and Ext. B4 rental agreement. The said rental agreement is in respect of a cinema theatre functioning at Ranni, Pathanamthitta. The rental agreement shows that the rate of rent for the threatre is only ₹8,000/- per month. However, as rightly pointed out by the RCC, this document cannot be taken into consideration as the said theatre is not situated any where near the petition schedule building. In this context, the entertainment tax being paid by the respondent to the panchayath also needs to be taken note of. Exts.A18, X1 and X2 show that the R.C.R.Nos.369 of 2018 and 28 of 2019 9 monthly entertainment tax being paid during the period 2011-2012 ranges from ₹5,000/- to ₹19,000/-. When all these aspects are taken into account, it can only be concluded that the petitioner is certainly entitled to a better rate of rent than fixed by the RCC, though not at the rate claimed by him. Taking into account the evidence on record, we think that rent at the rate of ₹7.5/- per sq.ft. for 7,802 sq.ft. would be reasonable. Therefore, to that extent, the impugned judgment requires to be interfered with. In the result, R.C.R.No.369/2018 filed by the landlord is allowed and the fair rent is fixed at the rate of ₹7.5/- per sq.ft. for the tenanted premises, the plinth area of which is found to be 7,802 sq.ft. The petitioner is also entitled to enhancement of rent at the rate of 10% every three years ( **Mohammad Ahmad v. Atma Ram Chauhan, AIR 2011 SC 1940)** . R.C.R.No.28/2019 filed by the tenant is allowed in part. The plinth area of the tenanted premises for which the fair rent has been fixed is 7,802 sq.ft. To that extent, the impugned judgment shall stand modified. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/14.12