Muhammed Aslam v. Rafeeqa and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940 ## RCRev..No. 323 of 2017 AGAINST THE ORDER IN RCP 36/2013 of RENT CONTROL COURT, MANJERI DATED 29-08-2014 AGAINST THE JUDGMENT DATED 31.01.2017 IN RCA 65/2014 of ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, MANJERI ## REVISION PETITIONERS/APPELLANT/RESPONDENT: MUHAMMED ASLAM AGED 49 YEARS, S/O. KALATHINGAL MUHAMMEDALI, ERANAD TALUK, EDAVANNA AMSOM DESOM,CHEMBAKUTH, MALAPPURAM. BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI ## RESPONDENTS/RESPONDENTS/PETITIONERS: 1 RAFEEKA, AGED 35 YEARS, W/O. ABDUL RASAQ, NANNAMBRA ABDULLAKUTTY, CHATHANGOTTUPURAM AMSOM DESOM, MALAPPURAM - 679 328. 2 MOOSA, AGED 45 YEARS, S/O. THORAPPA VEERANKUTTY,CHATHANGOTTUPURAM AMSOM DESOM, MALAPPURAM - 679 328. 3 BASMA AGED 36 YEARS, W/O. THORAPPA MOOSA,D/O. KOZHUVUMMAL KUNHAHAMMED, CHATHANGOTTUPURAM AMSOM DESOM, MALAPPURAM - 679 328. - 4 ABDUL RAZAK AGED 45 YEARS, S/O. CHANGARAM VEETTIL ABOOBACKER HAJI, CHATHANGOTTUPURAM AMSOM DESOM, MALAPPURAM - 679 328. BY ADV. SRI.R.RAJESH KORMATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No.323/2017 -2- ## **ORDER** ## Annie John,J. The revision petitioner is the tenant, who is the respondent in RCP No. 36 of 2013 filed by the respondents/landlords for the enhancement of rent under Section 5 of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). By a common order dated 29.08.2014, the Rent Control Court, Manjeri allowed the RCP fixing the fair rent of the petition schedule building as Rs.20,000/-. Highly aggrieved by the same, the revision petitioner has preferred RCA No. 65 of 2014 before the Rent Control Appellate Authority, Manjeri, who as per judgment dated 31.01.2017 dismissed the same confirming the findings of the Rent Control Court. Hence this revision. 2. The averments in the Rent Control Petition is as follows: The petition schedule building is situated in the first floor of a shopping complex in Manjeri Town just 20 yards away from the Malappuram-Manjeri Public road. There are commercial establishments on either side of the said road to the shopping complex. The rooms in the first floor of the said shopping complex is also in possession of the revision petitioner/tenant. Considering the commercial importance of the petition schedule buildings, the facilities available to the same, increase in the price of commodities, costs of living and cost of RCR No.323/2017 -3- construction, the respondent/landlord is entitled to get rent at the rate of Rs.30,000/-. 3. The revision petitioner/tenant filed a counter statement stating that the petition schedule building was entrusted to the petitioner in the year 1997 and he has paid Rs.4,50,000/- as advance for the construction of petition schedule building. Considering the huge amount as advance, Rs.7500/-was fixed as monthly rent. Thereafter, Athimannil Moideen, the then owner of the petition schedule building, transferred the property in favour of Muhammad Rafeeque. A new lease agreement was entered into by the revision petitioner/tenant with the said Muhammad Rafeeque. As an amount of Rs.450000/- was paid as advance, only nominal increase in rent was made when the new lease agreement was entered into. In subsequent years also, nominal increase in rent was made. The rent was fixed as Rs.10,605/- in March, 2013. At present, the revision petitioner and his brother is conducting a grocery shop in the petition schedule shop room. Further, the petition schedule building is not having the commercial importance as alleged in the petition and it is 200 metres away from the main road. There is no parking facility also. 4. According to the respondent/landlord, the rent being paid by the revision petitioner/tenant is too meager considering the commercial importance of the locality where the petition schedule building is situated RCR No.323/2017 -4- and the facilities available therein. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents, apart from perusing the records. 6. The learned counsel for the revision petitioner has strenuously argued that the trial court as well as the Rent Control Appellate Authority have not considered the matter in its correct perspective and the calculation made by both the courts in arriving at the aforesaid fair rent is wrong. He has pointed out the fact that the total plinth area is 135.53 m[2] and accordingly, the evidence was given to the effect that rooms of that locality would fetch Rs.5200/- per day and the court below has taken this fact into consideration and fixed the rent of the building without considering the material facts and evidence. 7. In _**Edger Ferus v. Abraham Itticheria**_ [2004 (1) KLT 767], this Court has held that the Rent Control Court while fixing fair rent could take note of (i) the inflation and resultant reduction in the purchasing power of money; (ii) variation in the cost of living index; (iii) demand for accommodation and availability of building in the locality; (iv) prevailing rent in the locality for the similar accommodation; (v) the type of construction; (vi)the general or special amenities provided in the building; (vii) whether residential or non-residential; (viii) annual rental value of the building at the time of filing the application for fair rent; (ix) revision or fresh imposition of municipal taxes, cess rate in respect of RCR No.323/2017 -5- other increase in the charge of electricity or water consumption by the tenant and also by the landlord; and (x) increase in account of repairs. 8. The petition schedule rooms are situated in the ground floor of a shopping complex. Canara Bank is functioning in the first floor of the shopping complex and an educational institution is also functioning in the second floor of the complex. Vegetable and fish market, bus stand, Government Offices, Educational Institution, Medical College and several commercial Institutions are instituted within the vicinity of the said shopping complex. In the building adjacent to the shopping complex, jewellery, textiles, supermarket etc. have been functioning. 9. The Power of Attorney Holder of the respondent/landlord was examined as PW1 and Exts.A1 to A13 were marked. RW1 was given evidence to the effect that similar rooms in the locality would fetch a rent to the tune of Rs.50/- to Rs.100/- per day. The cost of construction of the building, including cost of labour and building materials, capital value of entire premises in the enjoyment of the tenant inclusive of value of the land under the actual enjoyment of the tenant whether immediately appurtenant to the building or otherwise, type of construction, locational importance, situations of the tenanted premises, ground floor, first floor,etc and other advantages and amenities, such as access to the places of public importance like bus stand, Educational Institutions, hospital etc. would be the guiding factors for fixing the fair RCR No.323/2017 -6- rent. It is also borne out that the revision petitioner/tenant is occupying the building having plinth area of 15 sq. metre in the said shopping complex and the similar rooms in the locality would fetch a rent to the tune of Rs.50/- to Rs.100/- per day. Considering all the factors, the Rent Control Appellate Authority found that the findings entered by the Rent Control Court is sustainable and accordingly dismissed the appeal. 10. In this connection, we have gone through the findings entered by the Rent Control Court and we find that the Rent Control Court considering the circumstances including the remarkable inflation and resultant reduction in the purchasing power of money, increase in the cost of living, increase in the rent of similar buildings, the fact that the petition schedule shop rooms are in the ground floor of the building, other advantages and amenities, such as access to places of public importance commercial significance of the locality and other facts and circumstances, increased the fair rent of the petition schedule shop room to Rs.20,000/-. The Rent Control Court has considered the evidence before them and accordingly fixed the aforesaid rent. 11. In fact, the Rent Control Court has held that considering the entire evidence on record and the facts and circumstances, including the remarkable inflation and resultant reduction in the purchasing power of the money, increase in the cost of living, increase in the rent of similar buildings, the fact that the petition schedule rooms are in the ground RCR No.323/2017 -7- floor of the building, and other advantages and amenities, such as access to places of public importance, commercial significance of the locality etc., the court has been satisfied and fixed the rent of the petition schedule shop room as Rs.20,000/- per month. But, on going through the judgment of the trial court as well as the Rent Control Appellate Authority, we find that the method adopted by the court in calculating fair rent and fixing the same at Rs.20,000/- is not detailed in the judgment. Therefore, there is material irregularity in calculating and fixing the rent of the petition schedule building as evidenced from both the judgments. While considering a petition filed under Section 5 of the Act, the court has to assess and analyse the evidence and has to detail the method in arriving at the fair rent fixed in the judgment. Since the judgment lacks the method of fixing the fair rent, it is to be interfered with. Further, the appellate authority has blindly believed the findings of the Rent Control Court without analysing the evidence adduced by both sides and adopted a short cut method and accordingly the dismissed the appeal. 12. We find that _prima facie_ , there is material irregularity in fixing the rent at Rs.20,000/- per month. We are inclined to interfere with the findings of the Rent Control Court as well as the Rent Control Appellate Authority and the same are set aside and remit the matter to the Rent Control Court for re-fixing the rent as per law. Both parties shall adduce RCR No.323/2017 -8- evidence and the trial court shall, after evaluating the evidence, dispose of the Rent Control Petition within three months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Court on 29.03.2019. This Revision Petition is disposed of as above. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ RCR No.323/2017 -9-