## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
## **&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 RCREV. NO. 188 OF 2017**
**AGAINST THE JUDGMENT DATED 20.01.2017 IN RCA NO.43 OF 2016 OF RENT CONTROL APPELLATE AUTHORITY- II, 2ND ADDITIONAL SESSIONS JUDGE, KOZHIKODE CONCURRING WITH THE COMMON ORDER IN RCP NO.183 OF 2012 DATED 31.10.2015 OF RENT CONTROL COURT ,KOZHIKODE**
## **REVISION PETITIONER/APPELLANT/RESPONDENT:**
MAKRAM VEETTIL MUHAMMED ASHRAF SON OF P.KOYA, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT BY ADV SRI.JACOB ABRAHAM
## **RESPONDENTS/RESPONDENTS/PETITIONER & 2ND RESPONDENT:**
1 K.V.MUHAMMED MUHASIN SON OF PUTHIYAPONMANICHANTAKATH ABDURAHIMAN KOYA, BAITHUL ISLAM, NAGARAM AMSOM AND DESOM OFKOZHIKODE TALUK - 673001 2 VALAPPIL RAZOOL GAFOOR SON OF BEERAN, PANNIYANKARA AMSOM AND DESOM,OF KOZHIKODE TALUK- 673 001 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..296/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA**
**THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944**
**RCREV. NO. 296 OF 2017**
**AGAINST THE JUDGMENT IN RCA NO.43 OF 2016 OF ADDITIONAL RENT CONTROL APPELLATE AUTHORITY -II CONCURRING WITH THE COMMON ORDER IN RCP NO.183 OF 2012 OF ADDITIONAL MUNSIFF COURT ,KOZHIKODE-I**
## **REVISION PETITIONER/1ST RESPONDENT/SUPPLEMENTAL PETITIONER:**
K.V. MUHAMMAD MUHASIN AGED 46 YEARS AGED 46 YEARS, S/O PUTHIYAPONMANICHINATAKATH ABDU RAHIMANKOYA, BAITHUL SALAM, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK BY ADVS. SRI.K.M.FIROZ SRI.E.C.AHAMED FAZIL SMT.M.SHAJNA SMT.UMMUL FIDA
## **RESPONDENTS/APPELLANT & 2ND RESPONDENT/RESPONDENTS:**
1 MAKRAM VEETTIL MUHAMMED ASHARAF, AGED 50 YEARS, S/O P.KOYA, CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK- 673 027 2 VALAPPIL RAZOOL GAFOOR AGED 52 YEARS, S/O BEERAN, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DIST- 673 020 BY ADV SRI.JACOB ABRAHAM THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..188/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.Nos. 188 and 296 of 2017
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## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.**
**--------------------------------------------------**
**R.C.R.Nos. 188 and 296 of 2017**
**------------------------------------------Dated this the 17[th] day of November, 2022**
## **ORDER**
## **C.S.Sudha, J.**
These Rent Control Revisions have been filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1905 (the Act). RCR No.188/2017 has been filed by the appellant in R.C.A.No.43/2016 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode against the order dated 31/10/2015 of the Rent Control Court (RCC), Kozhikode in R.C.P.No.183/2012. The revision petitioner herein is the respondent-tenant in the R.C.P. R.C.A No.296/2017 has been filed by the first respondent in R.C.A.No.43/2016, who is the petitioner-landlord before the RCC. The parties and the documents will be referred to as described in the R.C.P.
2. The R.C.P was filed by the petitioner under Section 5 of the Act for fixation of fair rent. According to the petitioners, the petition schedule room was let out on 31/03/1995 for a monthly rent of ₹7,000/- which was later on enhanced to ₹8,000/- per month. The petition schedule room is situated in a commercially important part of Calicut City. It is situated in the heart of Calicut, namely, S.M Street - court road junction. The importance of the locality has increased manifold
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since the entrustment. There are several establishments situated near the tenanted premises. Considering the importance of the locality, the cost of living and the rent prevailing in the locality, the fair rent of the premises has to be fixed at ₹1,78,400/per month. Though the respondents were requested to increase the monthly rent, they have to refused to do so. Considering the fact that the premises is situated in a very important commercial locality, monthly rent has to be fixed at ₹80 per sq ft. with 10% annual increase. During the pendency of the proceedings, the petitioner passed away and his legal representative has been impleaded as additional second petitioner.
3. The respondents filed counter denying the allegations in the petition. They denied the allegation of the petitioner that several developments have taken place in the locality after the entrustment. The Government of Kerala has declared SM street as a heritage street and it has been decided that the buildings therein shall be retained in its present state and no modification shall be done. Hence, there has been no development in the area. No new business establishment(s) has come up and the majority of the textile business has been shifted to the western side of SM street, which has now become the centre for textile business. The petition schedule room is situated in the first floor of the building. There is no direct access from the road or facilities that are available in the rooms situated in the ground floor. The stair case that leads to the petition schedule room is quite narrow, due to which several customers have stopped coming to the shop in which the respondents are conducting a pardha shop. The customers are mainly women, and so they find it difficult to
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access the petition schedule building through the narrow stair case. Hence the petitioner is not entitled to the enhancement prayed for.
4. PW1 was examined and Exts.A1 to A5 were marked on the side of the petitioner. On behalf of the respondents, the first respondent was examined as RW1 and Exts.B1 and B2 series have been marked. The report and plan of the advocate commissioner have been marked as Ext.C1 and C1(a) respectively. The RCC after analysing the oral and documentary evidence and relying on the dictum in
**Edger Ferus v. Abraham Itticheriya, 2004 (1) KLT 767** , fixed fair rent for the tenanted premises at ₹1,50,000/- per month with effect from the date of petition with 10% annual increase.
5. The first respondent aggrieved by the fixation of rent, filed R.C.A.No.43/2016. The RCAA refixed the fair rent at ₹1,30,000/- per month with an enhancement of 10% per annum. Aggrieved, both the petitioner as well as the first respondent have come up in revision.
6. The only point that arises for consideration in these cases are whether the findings of the RCAA or RCC suffer from any illegality, irregularity or impropriety.
## 7. Heard both sides.
8. The fact that the tenanted premises is situated in a commercially important area in Kozhikode City is undisputed. The first respondent when examined before the RCC as RW1 was asked whether he had made any enquiries regarding the
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rent prevailing in the locality and whether he is aware of the fact that buildings in the area are being let out on daily rent, pleaded ignorance. The RCAA interfered with the findings of the RCC and refixed the rent only on the ground that the staircase leading to the petition schedule room is quite narrow and hence concluded that the contention of the respondents that it would be difficult for women to access the premises, is probable and true. Admittedly, a business in pardha is being conducted by the respondents in the tenanted premises. Therefore, women are the main customers. The respondents also have a case that because of the aforesaid disadvantage, the business is going down. Apart from the mere assertion of the first respondent on this aspect, no evidence has been let in to support the same. On the other hand, the evidence on record shows otherwise. The advocate commissioner in Ext.C1 has reported that when he visited to property, the shop was seen well furnished, well stocked and that good business was going on in the shop.
9. Further, the case of the petitioner that the buildings in the locality fetch higher rent is probabilised by the commission report, which report has also not been discredited by the respondents. Though the respondents contend that the tenanted premises is an old and dilapidated one, the same does not seem to be true. A reading of the commission report shows that the premises is well furnished and it has all the facilities necessary or required for textile business. It is also reported that one added advantage for the tenanted premises is that it has got a separate washroom of its own, which appears to be unavailable in other buildings.
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10. The fact that the plinth area of the tenanted premises is 2230 sq ft. is not seen disputed. The RCC after analysing the oral and the documentary evidence, found no physical damage or inconvenience existing in the tenanted premises. It was also noticed that the tenanted premises situated in the first floor covers the entire upper area of the eight shop rooms that are situated in the ground floor and that the rent of a single shop room situated in the ground floor is ₹25,000/- per month. One of the rooms fetching rent of ₹25,000/- per month was found to have an area of only 172.22 sq ft. If that be so, the rent per square feet would be ₹145/- per month. The tenanted premises has an area of 2230 sq ft. for which the petitioner was only seeking rent at the rate of ₹80/- per square feet, which the RCC held was quite reasonable. Therefore, taking into account the escalation of prices, the inflation, the facts and circumstances of the case and the dictum in **Edger Ferus** _(Supra),_ the fair rent was fixed at ₹1,50,000/- per month with effect from the date of the petition. This comes to ₹67.26/- per sq ft., which is even lesser than the rate claimed by the petitioner. The RCAA was not justified in interfering with the reasoned order of the RCC and reducing the fair rent from ₹1,50,000/- to ₹1,30,000/- merely on the assertion by the respondent that his business is going down and that his customers find it difficult to access the tenanted premises. Therefore, to that extent the judgment of the RCAA requires to be interfered with.
In the result, R.C.R.No.188/2017 filed by the respondent-tenant is dismissed. R.C.R.No.296/2017 is allowed and the order dated 31/10/2015 in
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## R.C.P.No.183/2012 of the RCC shall stand restored.
Interlocutory Applications, if any pending, shall stand closed.
Sd/-
**P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE**
Jms/11.11
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## **APPENDIX OF R.C.R.No.188 of 2017**
PETITIONER ANNEXURES ANNEXURE-1
ANNEXURE-1 THE CERTIFIED COPY OF THE PROPERTY TAX DEMAND REGISTER DATED 01.01.2017 AND ISSUED BY THE REVENUE OFFICER, KOZHIKODE TO THE PETITIONER. ANNEXURE-2 THE CERTIFIED COPY OF THE PROPERTY TAX DEMAND REGISTER DATED 01.04.2017 AND ISSUED BY THE REVENUE OFFICER, KOZHIKODE TO THE PETITIONER.
