P. Padmini Balan v. V. Chekkutty

1 RCR 15 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** **RCRev..No.15 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 115/2018 DATED 16-10-2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURTIII, KOZHIKODE)** **AGAINST THE ORDER/JUDGMENT IN RCP 15/2013 DATED 21-12-2017 OF THE COURT OF THE RENT CONTROLLER (MUNSIFF COURT), PERAMBARA** ## **REVISION PETITIONER/S:** **P. PADMINI BALAN AGED 62 YEARS W/O.BALAN, SHOP ROOM NO., PP VIII-864 E, LAKSHMI COMPLEX, OPP.PERAMBRA GRAMA PANCHAYATH BUS STAND, MENHANNIAM AMSOM DESOM, POST PERAMBRA, KOYILANDY TALUK, KOZHIKODE-673 525.** **BY ADVS. SRI.T.G.RAJENDRAN SRI.CIBI THOMAS** ## **RESPONDENT/S:** **V. CHEKKUTTY AGED 77 YEARS S/O.KANARAN, VELUTHEDATH HOUSE, THURAYUR AMSOM DESOM, KOYILANDY TALUK, POST PAYYOLI ANGADI, KOZHIKODE- 673 523.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28.1.2020, THE COURT ON 5.2.2020 PASSED THE FOLLOWING:** 2 RCR 15 OF 2020 ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner is the appellant in RCA No.115/2018 on the file of the Rent Control Appellate Authority, Kozhikode. The respondent in the above appeal is the respondent in this revision petition. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court in RCP No.15/2013. The parties are for the sake of convenience, referred to as per their litigate status in the rent control petition as 'petitioner' and 'respondent'. 3. The petitioner had filed the rent control petition (in short RCP) No.15/2013 against the respondent under Sec.5(1) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), for fixation of the fair rent of the petition schedule shop rooms (for brevity, hereinafter 3 RCR 15 OF 2020 referred to as 'shop rooms'). 4. It was the case of the petitioner in the RCP as follows: The shop rooms consisting of item Nos 1 and 2 are owned by the petitioner. These shop rooms were given on lease to the respondent on a monthly rent of Rs 1,000/- and Rs 600/-, respectively, on the basis of lease agreement executed on 30.9.2005 and 19.2.2012, respectively. The shop rooms are situated in Perambra town. The shop rooms will fetch a minimum fair rent of Rs 5,000/and Rs 3,000/-, respectively. Although the petitioner issued a lawyer notice to the respondent, seeking enhancement of rent at the rate of Rs 4,500/- and Rs 3,000/-, respectively, the respondent issued a reply raising all untenable contentions. Hence, the RCP seeking fixation of fair rent. 5. The respondent resisted the RCP. She filed a counter statement, inter alia, contending as follows: The shop rooms are not situated in a commercially important area as alleged in the RCP. 4 RCR 15 OF 2020 Only item No.1 shop room was taken on lease by the respondent on 30.09.2005. Subsequently, at her own expense, she enclosed the area on the southern side of item No.1 shop room, with the consent of the petitioner, and build item No.2 shop room. A civil suit was filed by the petitioner claiming damages and for a decree for a permanent prohibitory injunction. The suit was compromised between the parties and as per the terms of compromise, monthly rent was fixed for item No.1 shop room at Rs 1,000/- and for item No.2 shop room at Rs 600/-. The shop rooms do not have road access. There is no necessity for enhancing the rent. Hence, the RCP be dismissed. 6. The petitioner was examined as PW1 and Exts A1 to A3 were marked through him. The respondent examined herself as RW1. She also examined three witnesses as RW2 to RW4. Exts B1 to B3 were marked through her. The commission reports and the plan were marked as Exts C1 to C2. 7. The Rent Control Court after evaluating the 5 RCR 15 OF 2020 pleadings and evidence on record allowed the RCP by fixing the fair rent for the shop rooms at the rate of Rs 3,000/- for item No.1 and Rs 1,500/- for item No.2 per mensum from 1.4.2014 onwards. It was also ordered that the petitioner is entitled to 10% increase on the fair rent fixed every three years. 8. Aggrieved by the impugned order passed by the Rent Control Court, the petitioner filed RCA 144/2018 seeking enhancement of the fair rent and the respondent filed RCA 115/2018 contending that the fair rent fixed by the Rent Control Court was unreasonable and excessive. The Appellate Authority consolidated and heard the appeals together. 9. The Appellate Authority by its common judgment dated 16.10.2019 dismissed both the appeals. 10. It is challenging the judgment passed by the Appellate Authority in RCA 115/2018, that the respondent has filed this rent control revision petition. The petitioner has not filed any revision 6 RCR 15 OF 2020 petition against the order passed in RCA 144/2018. 11. Heard Sri.Cibi Thomas, the learned counsel for the revision petitioner. 12. The learned counsel for the revision petitioner argued that the courts below have gone wrong in fixing fair rent at the rate of Rs 3,000/- and Rs 1,500/- per mensem for the shop rooms, which according to him is excessive and unreasonable. The courts below have not appreciated the pleadings and evidence on record, in its proper perspective. Similarly, he contended that the courts below have not taken into consideration the fact that there is no direct access to the shop rooms and hence by no stretch of imagination can it be said that the shop rooms would fetch a rent of Rs 3,000/- and Rs 1,500/respectively, per month. He further argued that the respondent is not in a position to pay rent at the above said rate. Hence, he prayed that the revision petition be allowed by setting aside the concurrent findings of the courts below. 7 RCR 15 OF 2020 13. The question that arises for consideration in this revision petition is whether there is any illegality, impropriety or irregularity in the judgment and order passed by the courts below fixing the fair rent in respect of the shop rooms at Rs 3,000/- and 1,500/-, respectively, per month, under Sec.5(1) of the Act. 14. This Court construing Sec.5(1) of the Act in **Edger Ferus vs Abrham Itticheriya [2004(1) KLT** **767]** laid down the following guidelines to be followed by the Courts at the time of fixing the fair rent. The criteria fixed by this Court is as follows: 1) Rent control court while fixing fair rent would take notice of the inflation and resultant reduction in the purchasing power of money. Variations in the cost of living index in the area since commencement of the lease, demand for accommodation and availability of the buildings in the locality. 2) The cost of construction of the building including cost of labour and building materials, capital value of the entire premises in the enjoyment of the tenant inclusive of the value of the land under the actual enjoyment of the tenant whether immediately appurtenant to the building or other wise, type of 8 RCR 15 OF 2020 construction, importance of location, situations of the tenanted premises, ground floor, first floor etc and other advantages and amenities such as access to places of importance like bus stand, railway station, educational institution, hospital, etc would also be guiding factors. 3) Rent control court will also look into the rent prevailing in the area for the same and similar accommodation. The type of construction the amenities [general or special] provided in the building, the open land attached to the building whether residential or non residential are also to be borne in mind. 4) Annual rental value of the building at the time of filing the application for fair rent may also be taken as a guiding factor along with others. 5) Revision or fresh imposition of municipal taxes, rate in respect of to other increase in the charge of electricity or water consumption and by the tenant and increase on account of sufficient requires would also be taken not by the rent control court. 6) The rent control court can while restoring in any rent control dispute or application either by a land lord by the tenant examined whether the rent is static and requires revision and fix fair rent accordingly permitting the parties to adduce evidence. ## 15. The Hon'ble Supreme Court in **Mohammad** ## **Ahmad vs Atma Ram Chauhan [AIR 2011 (SC)** 9 RCR 15 OF 2020 **1950]** has declared that, at the time of fixation of fair rent, it is to be seen that the tenant should enhance the rent according to the terms of agreement or at least by 10% after every three years and if the rent is too low, the present market rate should be worked out, either on the basis of the valuation report or relied estimates of the building rent in the surrounding areas let out reasonable. The rent so fixed should be just, proper and adequate keeping in mind the location, type of construction, accessibility with main road, parking space facilities etc. but at the same time, it should not end up as a bonanza for the landlord. 16. This Court in **State Bank of India vs Prasannakumari and others (2019 (2) KLJ 624)** held that the ratio decidendi in **Mohammad Ahmad** (supra) will not preclude the landlords from seeking fixation of fair rent at the rate more than that is specified in the judgment at the periodical enhancement as stipulated in the agreement between 10 RCR 15 OF 2020 the landlord and the tenant. 17. It is an undisputed fact that the respondent is the tenant of the petitioner. It is also undisputed that the rent in respect of item No.1 shop room was fixed in the year 2005 and that of item No.2 shop room was fixed in the year 2012. It is after eight years that the petitioner sought for fixation of fair rent in respect of item No.1 shop room. 18. It is settled law that this Court while exercising its revisional jurisdiction under Sec.20 of the Act, is not supposed to re-appreciate the entire pleadings and evidence on record as that of the Appellate Court. 19. The Rent Control Court as well as the Appellate Authority have exhaustively considered the pleadings and evidence on record. The evidence consisted of PW1, who has proved Exts A1 to A3, and RWs 1 to 4 were proved Exts B1 to B3. Similarly, an advocate commission was taken out and Exts C1 to C2 reports and plans were proved. 11 RCR 15 OF 2020 20. The courts below after considering the evidence on record, felt it fit to fix the fair rent in respect of item Nos.1 and 2 shop rooms from Rs 1,000/- and Rs 600/- to Rs 3,000/- and Rs 1,500/-, respectively. It is this nominal increase of rent from Rs 1,600/- to Rs 4,500/-, that is an enhancement of Rs 2,900/- that is challenged by the respondent before the Appellate Authority and this Court. 21. It has come out in evidence that the shop rooms are situated in Perambra town, an important town in Kerala. The shop rooms are just 3 meters away from the Perambra Grama Panchayat bus stand. The petitioner who was examined as PW1, has in unequivocal terms deposed that the shop rooms are situated in a commercially important area and is quite comfortable and spacious. The shop rooms have road access through Gosalakkal road, through which even heavy vehicles ply. It has also come out in evidence that the shop rooms have more than an extent of 250 sq ft. The Advocate Commissioner, who 12 RCR 15 OF 2020 was examined as RW3, has proved Exts C1 and C2 reports and C1(a) plan. Ext C1 report gives the extent of the shop rooms, which is in tune with the evidence of PW1. Ext C2 report proves the fact that the shop rooms are only 34 metres away from the Perambra - Kuttiyadi road and 9 metres away from Perambra bus stand. The Commissioner has also reported that the Gosalakkal road is having a width of 6 metres and vehicles are parked on both sides of the road. Therefore, the evidence of RW3 is in consonance with the evidence of PW1 and the pleadings in the R.C.P. 22. In addition to the above evidence, the petitioner has also produced and proved Ext A2, which shows that a nearby shop room has been leased out for a monthly rental of Rs 33,700/-. It is also come out in evidence that as per Ext B1 tax assessment register, the building tax for item No.1 shop room is fixed at Rs 1985/-. There is no assessment in respect of item No.2 shop room, as it 13 RCR 15 OF 2020 is a small room, which was subsequently constructed. 23. Going by the evidence of RW1 - the respondent, she empathetically admitted that it is high time that the rent in respect of the shop room was enhanced. She to rent at an agreed pay enhanced rate of Rs 200/- - Rs 300/- in respect of the shop rooms. 24. It is not for the respondent to dictate the terms in respect of the fixation of fair rent. This Court, in **Edger Ferus** (supra) and the Hon'ble Supreme Court in **Mohammad Ahmad** (supra) have laid down the parameters under which the fair rent can be fixed. 25. It is after considering the entire pleadings and evidence on record and the law laid down that the Rent Control Court enhanced the rent from Rs 1600/- to Rs 4,500/-. Finding the fair rent fixed by the Rent Control Court as moderate and reasonable, and in consonance with the principles laid down in the aforecited decisions, the Appellate Authority 14 RCR 15 OF 2020 rightly dismissed the appeals filed by the petitioner and the respondent, confirming the findings of the Rent Control Court. 26. In the totality of the facts and circumstances of the case, the pleadings and evidence and the settled proposition of law, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly fixed the fair rent in respect of the shop rooms as per the impugned order and judgment. We do not find any irregularity, impropriety or illegality in the concurrent findings of the courts below in RCA 115/2018 and RCP 15/2013. The revision petition is without any merits and is hence dismissed. sd/- **K.HARILAL JUDGE** **C.S.DIAS** sks/1.2.2020 **JUDGE** 15 RCR 15 OF 2020 16 RCR 15 OF 2020