Parukutty and others v. Koshy

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 RCRev..No. 256 of 2010() -----------------------RCA.2/2006 of RENT CONTROL APPELLATE AUTHORITY KOTTAYAM RCOP.30/1991 of RENT CONTROL COURT , KOTTAYAM .................... ## REVN.PETITIONERS/APPELLANTS/PETITIONERS ----------------------------------------------------------- 1. PARUKUTTY, W/O. LATE AYYAPPAN ACHARY, PALLIKIZHAKKETHIL, NARAKKATHODU, PUTHUPPALLY. 2. P.A.VIJAYAN, S/O. LATE AYYAPPAN ACHARY, PALLIKIZHAKKETHIL, NARAKATHODU, PUTHUPPALLY. 3. P.A.RAMACHANDRAN, S/O. LATE AYYAPPAN ACHARY, PALLIKIZHAKKETHIL, NARAKATHODU, PUTHUPPALLY. 4. P.A.VISWANATHAN, S/O. LATE AYYAPPAN ACHARY, PALLIKIZHAKKETHIL, NARAKATHODU, PUTHUPPALLY. 5. P.A.REGHU, S/O. LATE AYYAPPAN ACHARY, PALLIKIZHAKKETHIL, NARAKATHODU, PUTHUPPALLY. - BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ## RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ KOSHY, AGED ABOUT 73 YEARS, ENJAKKATTU, PUTHUPPALLY.P.O. KOTTAYAM 686 011 ADV. SRI.JOSE JOSEPH (MANNAR) FOR R1 SRI.ALEX M. ARAYATH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11 / 11 / 11 , THE COURT ON THE SAME DAY PASSED THE ## **PIUS C.KURIAKOSE & K.HARILAL, JJ. -----------------------R.C.R. NO. 256 OF 2010 ------------------------** Dated this the 11th day of November, 2011 ## **O R D E R** Pius C.Kuriakose, J. The revision petitioners are tenants who have been inducted into a reconstructed building in terms of the third proviso to Section 11 (4)(iv). Their grievance about the judgment of the appellate authority under challenge, is that the rate of Rs.1,600/- per mensem fixed by the Appellate Authority is far in excess of the rent prevailing in the locality for identical buildings. It is submitted by Sri.John Joseph Vettikad, learned counsel for the revision petitioners, that for identical rooms in the very same three storied building, a part of which is the subject building, the landlord is getting only Rs.1,200/- per mensem as rent. Therefore, the resent rate of Rs.1,600/- per mensem fixed by the appellate authority is in excess. When the revision petition came up for admission, this Court passed an interim order directing the petitioners to pay and the respondent to receive rent at the rae of 1,350/-. We enquired of Mr.Joseph Joseph Mannar, RCR No. 256 /2010 2 learned counsel for the respondent whether the respondent will be prepared to receive the sum of Rs.1,350/- per men sem as rent especially in view of the submission of Joseph Joseph that electricity is not provided to this building. The learned counsel answered in the negative. Under the above circumstances, the question which arises for decision by us is whether the sum of Rs.1600/- per month fixed by the Rent Control Appellate Authority as the fair rent of the building is in excess of the fair rent of the building. We have no difficulty to answer that question in the negative. 2. Unlike the original proceedings under Section 5 for fixation of fair rent by the Rent control Court at the instance of either the landlord or the tenant, the present case is one of fixing the fair rent of the reconstructed building to which, a tenant who had been evicted under Section 11 (4) (iv) is reinducted. It is not disputed that the room presently in the possession of the tenants(room having door No.407) was allotted to them by the landlord pursuant to an order passed by the Rent Control Court in terms of the 3rd proviso to section 11(4)(iv) in I.A. No.22012011 filed by the tenants. The landlord on his own RCR No. 256 /2010 3 fixed the monthly rent payable by the revision petitioners at the rate of Rs.2500/- per month. It is that unilateral fixation of the fair rent by the landlord which was impugned before the Appellate Authority. The learned Appellate Authority under its judgment, which is impugned before us, has decided that unilateral fixation of fair rent at the rate of Rs.2500/- per month by the landlord was not justified. After holding so, the learned Appellate Authority has relied on Ext.C1 report submitted by the commissioner inter alia regarding the prevailing market rate of rent. It was found that the building is situated in a very prominent locality of Puthuppally Panchayat and that on either sides of the room there are several shops and commercial establishments. It was found that the building is in the ground floor of a three storied structure. It was also found that the 2nd floor of this building is let out to Muthoot Financiers where a financial institution is functioning. The learned Appellate Authority noticed the various guidelines issued by the Division Bench of this court and later approved by the Hon'ble Supreme Court in Edger Ferus v. Abraham Ittycheria 2009 (4) KLT 673) to be applied while the fair rent is fixed. Inter alia RCR No. 256 /2010 4 ## following guidelines were noticed by the Appellate Authority; 7. Rent Control Court while fixing fair rent could take note 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. 8. 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 otherwise, type of construction, locational importance, situates of the tenanted premises, ground floor first floor etc. and other advantages and amenities, such as access to places of public importance like bus stand, railway station, educational institution, hospitals, etc. would also be guiding factors. 9. The Rent Control Court will also take into consideration the prevailing rent in the locality 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. RCR No. 256 /2010 5 10. 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. 11. Revision or fresh imposition of municipal taxes, cess, rate in respect of other increase in the charge of electricity or water consumption by the tenant and also by the landlord and increase on account of sufficient repairs would also be taken note of by the Rent Control Court. 2. It is applying those guidelines and in spite of Ext.A1 Property Tax Assessment Register maintained by the local authority that the Rent Control Appellate Authority fixed the fair rent at the rate of Rs.8/- per square feet. It is accordingly that fair rent was fixed at the rate of Rs.1600/- per mensum. 3. Before the learned Appellate Authority there was one more issue as to with effect from which date fixation of fair rent apply. The learned Appellate Authority decided that as the revision petitioners were put in possession of the reconstructed building on 27/7/2007, their liability to pay fair rent is with RCR No. 256 /2010 6 effect from that date. We do not find any illegality, irregularity or impropriety about the judgment of the Appellate Authority. We sustain the same and dismiss the revision petition. At the same time, we notice that in law, as it obtains now, there is no bar for refixing the fair rent of a building, fair rent of which was once fixed. We make it clear that it is open to the revision petitioners and to the respondent/landlord to apply for refixation of fair rent on valid reasons. **PIUS C.KURIAKOSE,JUDGE** **K.HARILAL, JUDGE.** cl/dpk RCR No. 256 /2010 7