M/S. CANARA BANK v. DEVA PROPERTIES LIMITED

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 24[TH] DAY OF JUNE 2021 / 3RD ASHADHA, 1943** ## **RP NO. 381 OF 2021** **AGAINST THE ORDER IN RCRev. 183/2020 OF HIGH COURT OF KERALA, ERNAKULAM** ## **REVIEW PETITIONERS/ REVISION PETITIONERS :** ||**1**<br>**M/S.CANARA BANK,**<br>**REP. BY ITS DEPUTY GENERAL MANAGER, DESI ROAD,**<br>**BANGALORE, PIN - 560 002**<br>**2**<br>**THE GENERAL MANAGER,**<br>**CANARA BANK, DESI ROAD, BANGALORE,**<br>**PIN - 560 002**<br>**3**<br>**DEPUTY GENERAL MANAGER,**<br>**CANARA BANK, DESI ROAD, BANGALORE,**<br>**PIN - 560 002**<br>**4**<br>**THE MANAGER**<br>**CANARA BANK, SPENCER JUNCTION,**<br>**THIRUVANANTHAPURAM, PIN - 695 001**<br>**BY SR.ADV.SRI.S.RAMESH BABU**<br>**BY ADVS.C.MURALIKRISHNAN (PAYYANUR)**<br>**SRI.ABRAHAM GEORGE JACOB**| |---|---| ||| ||| ||| ||| ||| ## **RESPONDENT/ RESPONDENT :** **DEVA PROPERTIES LIMITED,** **ANNA SAALI, CHENNAI, REP. BY ITS MANAGING DIRECTOR, K.V.VENUGOPALAN NAIR, ORIGINALLY KNOWN AND INCORPORATED AS M/S.SPENCER ESTATES LTD., CHENNAI - 600 002** ## **ADV.PRAVEEN K.JOY** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RP NO. 381 OF 2021** **2** ## **ORDER** Dated this the 24[th] day of June, 2021 ## _**Bechu Kurian Thomas, J.**_ This review is preferred against the judgment in RCR.No.183/2020. At the outset itself, it may be relevant to mention that, as understood from Annexure 1 produced in this review, the judgment under review, was challenged before the Supreme Court in a Special Leave Petition. However, the Special Leave Petition was withdrawn to avail the remedy of a review before this Court, pursuant to which, this review is preferred. Though several grounds are raised in the memorandum of review petition (numbering to 47), the learned Senior Counsel Sri. Ramesh Babu duly assisted by Adv. Abraham George Jacob confined his submissions to a solitary ground, which will be dealt with later. 2. The first review petitioner is the tenant of the building while the first respondent is the landlord. The rent paid by the tenant with effect from 1994 was only Rs.4.20 per Sq.ft. In 2009, a petition was filed by the landlord under section 5(1) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, the Act), for fixation of **RP NO. 381 OF 2021** **3** fair rent. Initially, the Rent Controller fixed the fair rent at Rs.40/- per square feet after noticing the locational importance of the building - as one of the most important. However, in the revisional jurisdiction of this Court, the case was remanded. 3. After remand, the Rent Controller re-fixed the fair rent payable by the tenant at Rs.35/- per Sq.ft. The Appellate Authority confirmed the findings of the Rent Controller and affirmed the fair rent fixed. In the revision petition filed by the tenant before this Court under Section 20 of the Act, this Court also affirmed the findings through the impugned order. 4. While dismissing the revision petition this Court considered the various contentions raised by the tenant and after dealing with the four grounds of challenge raised by the tenant, dismissed the same. In the judgment under review, this Court took note of the locational importance of the building and observed as follows:- _'The building faces the main arterial road of Thiruvananthapuram – M.G.Road. The Government Secretariat is a few meters away. The scheduled building_ _is surrounded by several extremely important institutions like the University College, the Hotel South Park, the Sanskrit College, the historic VJT Hall, the Kerala University Campus, the MLA Quarters, the Audit Bhavan, the Accountant General's Office, the Cantonment Police_ **RP NO. 381 OF 2021** **4** _Station, a Church etc.”._ This Court also further held that _“there cannot be a more prime location in Thiruvananthapuram”_ . Thus by the order under review, this Court held that the fair rent fixed by the rent control court was reasonable, fair and in accordance with law. 5. As mentioned earlier, though the memorandum of review petition raises as many as 47 grounds, the learned Senior Counsel confined his submission to a solitary one. It was submitted that when a Division Bench of this Court in the decision in _**Issac Ninan v. State of Kerala** [1995 (2) KLT 848]_ declared Sections 5, 6, and 8 of the Act as unconstitutional, the subsequent judgment in _**Edger Ferus v. Abraham Ittycheria** [2004 (1) KLT 767]_ could not have reviewed the judgment in _**Issac Ninan**_ 's case (supra) and restore Section 5(1) to the Act. It was contended that the restoration of Section 5(1) by the judgment in review in _**Edger Ferus**_ 's case (supra) was not valid. The learned counsel also pointed out that though the judgment in _**Edger Ferus**_ 's case (supra) was affirmed by the Supreme Court in _**Edger Ferus'**_ s case _[2009 (4) KLT 673 (SC)],_ the issue had not been considered in the correct perspective. 6. We have heard Senior Advocate S.Ramesh Babu instructed by Adv. Abraham George Jacob, on behalf of the review petitioners as well as Adv.Praveen K.Joy on behalf of the respondent. **RP NO. 381 OF 2021** **5** 7. It is pertinent to mention that by the decision in _**Issac Ninan**_ 's case (supra), this Court had struck down Sections 5, 6 and 8 of the Act as unconstitutional. However a review petition was filed by Isaac Ninan stating that this Court ought not to have struck down Section 5(1) of the Act as the said Section dealt with the power of the rent control court to fix fair rent for a tenanted building and also that there was in fact, no such challenge on section 5 raised in the writ petition. The review petition was allowed which is reported as _**Edger**_ _**Ferus v. Abraham Ittycheria [(2004 (1) KLT 767].**_ It was held that by virtue of the doctrine of severability, Sections 6 and 8 can be severed from Section 5 in the scheme of the legislation and that while the parameters for fixing the fair rent was unconstitutional, the power to fix the fair rent must of necessity be available with the rent control court. Based on the said finding, this Court restored the power to fix the fair rent under Section 5(1) with the rent control court. As mentioned earlier, the decision in _**Edger Ferus**_ ' case (supra) was affirmed by the Supreme Court in 2009 (4) KLT 673. 8. The contention now raised by the tenant in this review petition is that this Court could not have reviewed _**Isaac Ninan**_ ’s case and ought not to have restored Section 5(1) of the Act after declaring the said provision as unconstitutional. **RP NO. 381 OF 2021** **6** 9. After giving our anxious consideration to the contention now raised, we are afraid that we cannot concur with the contention of the tenant mainly for two reasons. A Full Bench of this Court reported in _**Selvaraj v. U.Murugadas** [2021 (3) KHC 292]_ had, after considering an identical contention, held that it was well within the powers of this Court to review its earlier decision in _**Issac Ninan**_ 's case (supra) and accorded its approval of the judgement in the review of Isaac Ninan's case. For the purpose of completeness, we extract para 22 of the judgment in _**Selvaraj**_ 's case (supra) : _22. In_ **Edger Ferus** _(supra), this Court other than taking note of the approach taken by the Government, had also clearly observed that the challenge in_ **Issac Ninan** _'s case (supra) was only with regard to Sections 6 and 8 of the Act whereas the Court declared Sections 5, 6 and 8 as unconstitutional. The only grievance of the review petitioner was that Section 5(1) has not been severed from the remaining objectionable provisions. Apparently, while considering the review, the Division Bench proceeded on the basis that Section 5(1) by itself was not unconstitutional, whereas if the said provision is not retained and necessary parameters are not laid down for proper fixation of fair rent, the intention and object of the Act will be defeated and the litigant public will be considerably prejudiced. We don't find any error being committed by the Division Bench taking note of the mistake or error which was apparent on the face of record in declaring Section 5(1) also as unconstitutional. Hence, we are of the view that it was well within the powers of this Court to review_ **RP NO. 381 OF 2021** **7** _its earlier view in_ **Isaac Ninan** _, taking note of various factors including the fact that Section 5(1) was not substantially challenged by the petitioner. Therefore, we are of the view that Division Bench was justified in reviewing the judgment in_ **Issac Ninan** _(supra), further, this Court expected the Government to bring a comprehensive legislation and when it was found that after a period of 9 years, no such legislation had been enacted, the Court was evolving mechanisms to consider issues relating to fixation of fair rent. Therefore, it was all the more necessary that a forum is provided to consider claims for fixation of fair rent._ 10. In view of the binding decision in _**Selvaraj**_ 's case, the contention now raised by the learned Senior Counsel that _**Isaac Ninan**_ 's judgment ought not to have been reviewed has no merit and the same is only to be rejected. 11. Apart from the above, it is seen from the memorandum of revision petition in RCR.No.183 of 2020 that the contention now raised regarding the correctness of the decision in _**Edger Ferus**_ 's case (supra) was never raised by the tenant at any point of time. On the contrary, the contentions raised in the revision petition before this Court was that while fixing the fair rent, the rent controller had failed to consider the principles laid down in _**Edger Ferus**_ 's case. The tenant had never questioned the correctness of the decision in _**Edger Ferus**_ ’s case or the review of _**Issac Ninan**_ ’s Case earlier. The contention now **RP NO. 381 OF 2021** **8** raised and argued was never raised and argued earlier. Thus, apart from the lack of merit in the contentions now advanced by the review petitioner, we find that there is no error apparent on the face of the record in the nature of the contentions advanced, warranting interference in review. It is well settled that the review jurisdiction under Order 47 Rule 1 is very limited. Contentions that were not raised or argued earlier, cannot be a ground to seek review of the judgement. 12. Since none of the other points stated in the memorandum of review petition have been canvassed before us, we refrain from considering those. In the above circumstances, we find no merit in this review petition, and the same is hereby dismissed. **==> picture [469 x 33] intentionally omitted <==** **==> picture [469 x 32] intentionally omitted <==** ## **S.V.BHATTI, JUDGE** Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM