Jose James v. Salim Sidhique and Muhammed Sidhique

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 R.C.REV.NO. 46 OF 2019** **AGAINST THE JUDGMENT DATED 28.07.2018 IN R.C.A.NO.20 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), ALAPPUZHA AND THE ORDER DATED 30.06.2016 IN R.C.P.NO.6 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), ALAPPUZHA** ## **REVISION PETITIONER:** **JOSE JAMES, AGED 55 YEARS, VALLIKADUMALAYIL HOUSE, MADUKUMOODU INDUSTRIAL ESTATE, CHANGANASSERY, KOTTAYAM, DOING BUSINESS IN SHOP NO.1615-Q AND 1615/R OF RAIBAN SHOPPING COMPLEX, NEAR BOAT JETTY, ALAPPUZHA.** **BY ADVS. SRI.JOMY GEORGE SRI.DEEPAK MOHAN SMT.M.V.BABY** ## **RESPONDENTS:** **1 SALIM SIDHIQUE, AGED 67 YEARS, S/O. M.V.ABDUL REHMAN, SIDHIQUE MANZIL, THATHAMPALLY WARD, ALAPPUZHA.** 2 ## R.C.Rev.No.46 of 2019 **2 MUHAMMED SIDHIQUE,** **AGED 36 YEARS, S/O.SALIM SIDHIQUE, SIDHIQUE MANZIL, THATHAMPALLY WARD, ALAPPUZHA.** **BY ADV SRI.R.AZAD BABU FOR R1** ## **OTHERS PRESENT** **SRI.AAMIR SOHARAB, ADVOCATE COMMISSIONER** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.46 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.6 of 2013 on the files of the Rent Control Court (Munsiff), Alappuzha, is the revision petitioner. The respondents-landlords filed the Rent Control Petition Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking fixation of fair rent for the petition schedule shop room. As per order dated 30.06.2016, the Rent Control Court fixed fair rent at Rs.12,000/- per month. It is at the rate of Rs.20 per sq.ft. The petitioner preferred an appeal before the Rent Control Appellate Authority (Additional District Judge-III), Alappuzha as R.C.A.No.20 of 2016 under Section 18(1)(b) of the Act. The appeal was dismissed. Thereupon, the petitioner has filed this Revision Petition under Section 20 of the Act. 2. In the Rent Control Petition, in the appeal and also in this Revision Petition, the petitioner took up a contention that the petition schedule shop room does not have the area of 600 sq.ft. as asserted by the respondents. He has even 4 R.C.Rev.No.46 of 2019 filed a commission application before the Appellate Authority to get the plinth area of the petition schedule shop room ascertained. But that application was dismissed. The main contention of the petitioner is that the area of the room is much less, and therefore, both the courts below went wrong in fixing the fair rent at Rs.12,000/- per month. As regards fixation of the rent at Rs.20 per sq.ft., the respondents have a reservation. It is contended that the rate of rent prevailing in the locality is much higher. In the absence of any challenge to the judgment of the Appellate Authority by the respondents, that contention cannot be considered. 3. On 12.11.2019, this Revision was admitted to file and notice was directed to the respondents. Operation of the order of the courts below was stayed as well. 4. On 31.01.2022, after hearing both sides, this Court appointed an Advocate Commissioner to conduct inspection of the petition schedule shop room and to submit a report along with a rough sketch, taking into consideration the dispute with respect to the plinth area of the petition schedule shop room. 5 ## R.C.Rev.No.46 of 2019 The Commissioner after inspection, has filed his report dated 18.02.2022. 5. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 1[st] respondent. 6. None of the parties has filed objections to the report of the Commissioner. Having heard the learned counsel appearing for either side and perused the report of the Commissioner, which is appended by a rough sketch, we find no reason to disbelieve the assessment made by the Commissioner. It is seen that the Commissioner had duly measured the area of the room and ascertained its plinth area as 332.59 sq.ft. We accept the same. The petition schedule shop room has therefore an area of 332.59 sq.ft. and the fair rent is to be fixed taking into account that fact. 7. In **Edgar Ferus v. Abraham Itticheriya [2004** **(1) KLT 767]** , this Court laid down the principles governing the fixation of fair rent and the Apex Court affirmed the said decision in **Edgar Ferus v. Abraham Itticheriya [2009 (1)** 6 R.C.Rev.No.46 of 2019 **KLT 673 (SC)]** . The Rent Control Court, following the said guidelines, fixed the fair rent at the rate of Rs.20/- per sq.ft. The Appellate Authority agreed with the finding of the Rent Control Court. 8. Section 5(1) of the Act reads thus: - "5. **Determination of Fair Rent.** (1) The Rent Control Court shall, on application of the tenant or landlord of a building, fix the fair rent for such building after holding such enquiry as it thinks fit." 9. Section 5 makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to decide the fair rent, it is the responsibility of the court, after holding an enquiry as it thinks fit and on taking into consideration the evidence let in by the parties. For that, courts have to follow the guidelines laid down in **Edgar Ferus** (supra) _**.**_ 10. PW1 is the 1[st] respondent. He deposed in court in detail regarding the rent of the premises in the locality. He has produced Exts.A1 to A3, which are copies of the rent deed relating to the tenanted premises being occupied by State 7 R.C.Rev.No.46 of 2019 Bank of India, Uco Bank and Bank of Baroda respectively. Ext.A1 shows that the rent being paid by the State Bank of India is at the rate of Rs.20 per sq.ft. Ext.A2 shows that Uco Bank is paying rent at the rate of Rs.30 per sq.ft. Ext.A3 shows that the Bank of Baroda is paying rent for the premises in its occupation at the rate of Rs.40 per sq.ft. PW2 is the Manager of the State Bank of India. He produced in court Ext.X1, which is a copy of the rent deed relating to the premises being used to accommodate ATM of the Bank. Rent being paid for the said premises is Rs.113 per sq.ft. PW3 is an officer-in-charge of the Foreign Liquor Shop, which is situated in the same locality. He deposed that the rent for the tenanted premises being occupied by Foreign Liquor Shop is Rs.45 per sq.ft. The courts below after considering the said evidence found that the fair rent for the petition schedule shop room shall be Rs.20 per sq.ft. On a perusal of the order of the Rent Control Court and the judgment of the Appellate Authority, it can be seen that while fixing the rent at that rate, both the authorities have taken all the relevant matters as stated in 8 R.C.Rev.No.46 of 2019 **Edgar Ferus** (supra) into consideration. 11. We, in exercise of the powers conferred on this Court under Section 20 of the Act, do not find any reason to interfere with the said finding. We are of the view that the said findings are not suffering from any illegality, irregularity or impropriety. Therefore, the challenge against the rate of fair rent fixed by the courts below as Rs.20 per sq.ft. is unsustainable. 12. In the circumstances, we modify the findings of the courts below and fix the fair rent of the petition schedule shop room at Rs.6,650/- (332.59 x 20=6.651.80 (rounded to 6,650) with effect from the date of the rent control petition with an annual increase of 5%. The Revision Petition is disposed of accordingly. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr