M. Thilakan v. M/S B. Amoo and Brothers and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 13TH POUSHA, 1940** **RCRev..No. 19 of 2018** **AGAINST THE JUDGMENT IN RCA 6/2015 of THE RENT CONTROL/APPELLATE AUTHORITY, KASARGOD DATED 22-05-2017 ARISING FROM THE ORDER IN** **RCP 23/2014 of THE RENT CONTROLLER, KASARGOD DATED 04-06-2015** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **M.THILAKAN, AGED 65, S/O.MADHAVAN, PROPRIETOR, S.D.PHARMACY, AIRLINES BUILDING, K.P.R.ROAD, KASARAGOD.P.O.** **BY ADV. SRI.J.OM PRAKASH** ## **RESPONDENTS/APPELLANTS/PETITIONERS:** |**1**|**M/S.B.AMOO AND BROTHERS,**| |---|---| ||**PROPRIETOR HOTEL AIRLINES, KPR ROAD, KASARAGOD RE. BY**| ||**ITS MANAGING PARTNER NOS.2 AND 3 HERE BELOW.**| |**2**|**B.ABDUL RAHIMAN, 80 YEARS, SO.ABDULLA, BEVINIE**| ||**CHENGALA VILLAGE, KASARAGOD TALUK AND DISTRICT.**| |**3**|**B.ABDULLA KUNHI 56 YEARS SO.B.AMOO HAJI, BEVINIE**| ||**CHENGALA VILLAGE KASARAGOD TALUK AND DISTRICT.**| ||**BY ADV. SRI.JAWAHAR JOSE**| **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No. 19 of 2018 2 ## **ORDER** ## **Harilal, J** The revision petitioner is the tenant in occupation of the building owned by the respondent/landlords. The parties are referred to as landlord and tenants. The landlord filed R.C.P No.23/2014 under Section 5 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965, seeking an order fixing the fair rent as Rs.12,000/- for the petition schedule building. According to the landlord, the petition schedule building is situated in a commercially important area and the land value and the rental value in that locality have gone upwards and it is more than ten times than the value existed during 2011. The tenancy commenced on 01.04.1972 on a monthly rent of Rs.250/- per month RCRev..No. 19 of 2018 3 and subsequently the said rent was enhanced to Rs.7,500/- per month as per the order of this Court in R.C.R.No.206/2011. After fixing the fair rent to Rs.7,500/-, tentatively, in the said order, this Court granted liberty to the landlord and tenant to approach the rent control court for regular fixation of fair rent. Till fair rent is fixed regularly in terms of Section 5 of the Act, the tenant was directed to pay rent @ Rs.7,500/- and the tenant has been paying rent @ Rs.7,500/- per month. According to the landlord, the rent fixed tentatively as per the order in R.C.R.No.206/2011 is inadequate when comparing with the prevailing rent of the similarly situated buildings in the locality and three years have elapsed after passing the said order in R.C.R.No.206/2011. RCRev..No. 19 of 2018 4 Therefore, they prayed for fixing the rent @ Rs.12,000/- per month. 2. After considering the evidence on record, the rent control court fixed fair rent @ Rs.8,000/- per month with effect from 07.08.2014. Feeling aggrieved, the landlord preferred R.C.A.No.6/2015 before the appellate authority assailing the inadequacy in the rent fixed by the rent control court. After re-appreciating the evidence on record, by the impugned order dated 22.05.2017, the appellate authority modified the rent fixed by the rent control court and enhanced the fair rent to Rs.12,000/- per month. Aggrieved by the enhancement made by the appellate authority, the tenant preferred this revision challenging the RCRev..No. 19 of 2018 5 modification whereby the appellate authority enhanced the fair rent from Rs.8,000/- to Rs.10,000/per month. Heard the learned counsel for the 3. petitioner and the learned counsel for the respondents. 4. Being a revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 the scope and extent of interference by this Court under the revisional jurisdiction is very limited and confined to the legality, regularity and propriety of the findings of the court below only. This Court is not inclined to re-appreciate the entire evidence on record so as to arrive at a different view unless the findings of the court below are perverse or vitiated RCRev..No. 19 of 2018 6 by the non-consideration of material evidence. In the instant case, the revision petitioner could not point any kind of illegality or non-consideration of any material evidence. 5. The only question to be considered is whether there is any illegality or impropriety in the methodology adopted by the courts below in the determination of fair rent. 6. In the instant case, no illegality or impropriety in the methodology is pointed, but an excessiveness in the quantum of rent alone is projected. Therefore, the sole point arises for consideration is whether the court below is justified in enhancing the quantum of fair rent from Rs.8,000/- to Rs.10,000/-. Going by the impugned RCRev..No. 19 of 2018 7 order, it is seen that the present rent control petition was filed in the year 2014 and the order fixing fair rent tentatively at Rs.7,000/- in the rent control revision No.206/2011 was passed in the year 2011. Though the evidence adduced by the landlord was not satisfactory, considering the lapse of three years, after the fixation of fair rent tentatively by this Court, the rent control court enhanced the rent from Rs.7,500/- to Rs.8,000/-. Going by the impugned judgment passed by the appellate authority it is discernible from paragraph No.5 of the said judgment that appellate authority also made enhancement by 10% each for the subsequent three years, from the basic rent of Rs.7,500/-. 7. In _Edger Ferus v. Abraham Ittycheria_ 2004 (1) RCRev..No. 19 of 2018 8 KLT 767 , this Court has issued a guideline for the fixation of fair rent. Subsequently, relying on the said decision, in _Sreekumaran Nair v. Ponnuswami Chettiyar_ 2010 (3) KLT 444, this Court has considered the question whether the decision of the statutory authorities to allow 10% enhancement per year can be approved or not and this Court held as follows: _4.The question that survives for consideration is whether the decision of the statutory authorities to allow 10% increase per year can be approved. A cursory reading of S.5(1) of Act 2 of 1965 which stands presently restored to the statute book by the judgment of the Supreme Court in Edger Ferus v. Abraham Ittycheria 2009 (4) KLT 673 (SC), approving the judgment of this Court in Edger Ferus v._ RCRev..No. 19 of 2018 9 _Abraham Ittycheria 2004(1) KLT 767 to which one among us (PCK (J) was party, can give room for an argument that the Rent Control Court has power to fix only a definite amount as fair rent for a given building and has no power to permit periodical increase on the fair rent so fixed. The learned Rent Control Appellate Authority noticed several relevant aspects such as the value of money being on decline, corresponding increase in the value of land, inflationary trends in the economy and also the regular growth of the city as a whole etc. These reasons, we also feel, are good reasons which can justify the decision to allow increase on the fair rent at a reasonable rate at regular intervals. The learned District Judge has also pointed out that unless periodical_ RCRev..No. 19 of 2018 10 _increase is not permitted by the order of the Rent Control Court fixing fair rent, the landlords who have secured fair rent fixation orders, may approach the Court again for refixation of fair rent, and this can overburden the Courts. Avoidance of recurrence of litigation is certainly a laudable object. But we cannot approve the reasoning of the learned District Judge that our courts may find it difficult to tackle the pendency situation arising from recurring litigation. According to us, our courts which are expected to be manned by dedicated and resolute Judges, will be capable of tackling any pendency situation, provided useful assistance is rendered to them by equally dedicated and industrious lawyers._ In view of the preposition laid down in the RCRev..No. 19 of 2018 11 aforesaid decision, we find that 10% annual increase made by the appellate authority is just and proper, warranting no interference under the revisional jurisdiction, even if the evidence adduced by the landlord is not satisfactory in full. Hence, this revision petition will stand dismissed. Sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/05/01/2019 RCRev..No. 19 of 2018 12