R.C.Rev. No.210 of 2020

## **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 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944** ## **RCREV. NO. 210 OF 2020** **AGAINST THE JUDGMENT DATED 11.01.2019 IN RCA NO.41 OF 2015 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM WHICH WAS AGAINST THE ORDER DATED 19.3.2015 IN RCP NO.24/2013 ON THE FILES OF THE RENT CONTROL COURT, ERNAKULAM** **PETITIONERS/RESPONDENTS 3 TO 6 AND LEGAL HEIRS OF 1ST & 2ND RESPONDENTS / RENT CONTROL PETITIONERS NO.3 TO 6 AND LEGAL HEIRS OF 1ST & 2ND PETITIONER:** - **1 P.I.GEORGE, AGED 77 YEARS, S/O.IPPORAH, RESIDING AT PALAL HOUSE, PUTHENCRUZ, ERNAKULAM DISTRICT.** - **2 LILLY ITTOOP, AGED 40 YEARS, W/O.LATE ITTOOP, RESIDING AT PALAL HOUSE, PUTHENCRUZ, ERNAKULAM DISTRICT.** - **3 P.I.JOSEPH, AGED 40 YEARS, S/O.LATE ITTOOP, RESIDING AT PALAL HOUSE, PUTHENCRUZ, ERNAKULAM DISTRICT.** - **4 P.I.SMITHA, AGED 36 YEARS, D/O.LATE ITTOOP, RESIDING AT PALAL HOUSE, PUTHENCRUZ, ERNAKULAM DISTRICT.** - **5 JOSEPH P.ISSAC, AGED 52 YEARS, S/O.P.I.ISSAC, RESIDING AT PALAL HOUSE, JAWAHAR NAGAR, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT-695003.** - **6 JOSEPH MATHEW, AGED 52 YEARS, S/O.MATHEW, RESIDING AT PALAL HOUSE, GOLDEN WATERS, KADAVANTHRA, ERNAKULAM DISTRICT.** - **7 GEORGE MATHEW, AGED 48 YEARS, S/O.MATHEW, RESIDING AT PALAL HOUSE, PUTHENCRUZ, ERNAKULAM DISTRICT. BY ADVS. ENOCH DAVID SIMON JOEL** R.C.Rev. No.210 of 2020 -: 2 :- ## **SRI.S.SREEDEV SRI.RONY JOSE** ## **RESPONDENTS/APPELLANTS/COUNTER PETITIONERS:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS AND TELEGRAPH, GOVERNMENT SECRETARIAT, NEW DELHI.** - **2 SENIOR SUPERINTENDENT OF POST OFFICE, DEPARTMENT OF POSTS, ERNAKULAM DIVISION, KOCHI-11. SMT.KRISHA T C** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.210 of 2020 -: 3 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.210 of 2020** ## **-----------------------------------------------** **Dated this the 12[th] day of January, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The landlords in a proceedings for fixation of fair rent under Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), are the petitioners in this revision petition. 2. The subject matter of the proceedings is a premises stated to be measuring 4650 sq.ft. in the first floor of a commercial building abutting M.G. Road, Ernakulam. The premises was being occupied by the Department of Posts and Telegraph, Government of India for housing one of the post offices. During the year 2004, the landlords preferred an application under Section 5(1) of the Act for fixation of fair rent for the premises, and the fair rent was fixed in the said proceedings at the rate of Rs.12/- per sq.ft. with periodical revision at the rate of 10% once in three years from 2004. The present application is one instituted in the year 2013. At the relevant time, the tenant was paying rent at the rate of Rs.15.70 R.C.Rev. No.210 of 2020 -: 4 :- per sq.ft. According to the landlords, there is change in circumstances warranting a further fixation of fair rent. The landlords, in the circumstances, prayed for fixation of fair rent at the rate of Rs.150/- per sq.ft. The tenant contested the proceedings contending that the rent that is being paid represents the fair rent and there is, therefore, no need for further fixation of fair rent. 3. The landlords let in oral as also documentary evidence. Exts.A1 to A8 are the documentary evidence let in by the landlords. There was oral evidence on the side of the tenant as well. Ext.C1 is the report of the Advocate Commissioner appointed in the proceedings. 4. On an appraisal of the materials on record, the Rent Control Court fixed the fair rent of the premises at the rate of Rs.45/- per sq.ft. The landlords accepted the said decision of the Rent Control Court. The tenant, however, challenged the decision of the Rent Control Court in appeal. The Appellate Authority, on a reappraisal of the materials on record, reduced the fair rent fixed by the Rent Control Court to Rs.30/- per sq.ft. It is aggrieved by the said decision of the Appellate Authority that the landlords have come up in this revision petition. 5. Heard the learned counsel for the landlords as also the learned Central Government Counsel representing the respondents. R.C.Rev. No.210 of 2020 -: 5 :- 6. The learned counsel for the landlords persuasively argued that there was absolutely no reason for the Appellate Authority to interfere with the decision of the Rent Control Court. It was also argued by the learned counsel that having regard to the materials on record, it is a case where the landlords could have successfully challenged the decision of the Rent Control Court for an enhanced fair rent. Per contra, the learned Central Government Counsel contended that the tenant in the case on hand being the Central Government and the premises being one used by them for a public service, the Appellate Authority cannot be found fault with for having reduced the fair rent to Rs.30/- per sq.ft. It was also pointed out by the learned counsel that the area of the premises is not 4650 sq.ft and is only 4628 sq.ft and there has been an omission on the part of the tenant in pointing out the same to the Rent Control Court. It was also pointed out by the learned Central Government Counsel that a portion of the premises measuring 2392 sq.ft. was surrendered by the tenants to the landlords on 30.06.2016 and the remaining portion has been surrendered to the landlords on 30.10.2021. 7. Before dealing with the arguments advanced by the learned counsel for the landlords, it is necessary to remind ourselves the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under R.C.Rev. No.210 of 2020 -: 6 :- Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding is either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd.** **v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse warranting correction under Section 20 of the Act. 8. As noted, this is a case where the landlords preferred an application earlier under Section 5(1) of the Act for fixation of fair rent of the premises, and the fair rent was fixed in favour of the landlords and the tenant was paying rent to the landlords in terms of the said fixation at the time when the present application was filed. Even though the tenant has contended in the proceedings that the present application is not maintainable in light of the earlier order of the Rent Control Court fixing the fair rent of the premises, that too, with periodical revision, the said contention was repelled by both the Rent Control Court as also the Appellate Authority holding that the landlords are entitled to seek a further R.C.Rev. No.210 of 2020 -: 7 :- fixation of fair rent on change in circumstances, although it was observed by the Appellate Authority that change in circumstances has been taken care of to a limited extent by the provision in the earlier order for periodical revision of fair rent fixed once in three years. As such, the only question that arises for consideration is as to whether the decision of the Appellate Authority in interfering with the decision of the Rent Control Court suffers from any illegality, irregularity or impropriety warranting interference of this Court under Section 20 of the Act. 9. It is seen from the materials on record that the landlords sought an order for fixing the fair rent at the rate of Rs.150/- per sq.ft. based on two registered lease deeds, namely, Exts.A3 and A4. Among them, Ext.A3 lease deed pertains to a nearby building taken on lease by M/s.Yes Bank. The premises covered by Ext.A3 lease deed is an area measuring 2500 sq.ft. and the rent agreed was Rs.2,30,000/- per month with periodic revision at the rate of 15% once in three years. The rate of rent of the said premises would work out to be Rs.92/- per sq.ft. though it is stated in the order that the rate of rent would be worked out to be Rs.150/per sq.ft. The Rent Control Court did not accept Ext.A3 lease deed as the relevant piece of evidence to fix the fair rent of the subject premises as it was established that the premises covered by Ext.A3 is part of a newly constructed 8 storeyed building situated almost a R.C.Rev. No.210 of 2020 -: 8 :- kilometre away from the subject building with all modern facilities such as lifts, parking space for accommodating 30 vehicles etc., whereas the the subject premises is a part of a 35 year old structure having facility to park only eleven cars, and it does not have lift facility. The view taken by the Rent Control Court in this regard that both the premises are not comparable, cannot be said to be illegal, irregular or improper in any manner. 10. Coming to Ext.A4 lease deed, the same is one executed by the landlords themselves on 01.11.2013 after institution of the present application, in respect of the ground floor of the very same building of which the tenanted premises is a part. The rent agreed for the premises covered by Ext.A4 lease deed for the area measuring 1200 sq.ft. is Rs.110/- per sq.ft. It appears that it is having regard to the fact that Ext.A4 is a document which came into being after the institution of the eviction petition, that too, in respect of a smaller area in the ground floor of the building, that the Rent Control Court chose to fix the fair rent of the premises at Rs.45/- per sq.ft. 11. Now let us see the reasons stated by the Appellate Authority in interfering with the fixation of fair rent made by the Rent Control Court. Paragraph 15 of the judgment of the Appellate Authority dealing with the said aspect reads thus: “15. There cannot be any dispute regarding the increase in R.C.Rev. No.210 of 2020 -: 9 :- the importance of locality from 2004, the year of the last revision. The order was passed in the year 2011 it was based largely on circumstances which prevailed in 2004, when the petition was filed. Calculation in matters of this nature cannot be in golden scale and a reasonable amount of intelligent guess work is permissible. But if the increase is from Rs. 12/to Rs. 45/- as done here, then the hike is of 375% which in the circumstances of the case and the spirit of the judgment of the apex court referred above, appears to be unreasonable. In my considered view 250% enhancement which would put the fair rent at Rs. 30/- with a provision for 10 % enhancement every three years would be in the interests of justice. The enhancement ordered by the court below is 30% every five years which appears to be a bit excessive.” As evident from the extracted paragraph, the view taken by the Appellate Authority is that the fair rent fixed by the Rent Control Court for the period from 2013 onwards would work out to be 375% of the fair rent fixed by the Rent Control Court for the period from 2004 onwards, which is exorbitant. As noted, it is a case where change in circumstances was established by the landlords by adducing cogent and convincing evidence and when the landlords themselves are able to get fair rent for a portion of the very same building at the rate of Rs.110/- per sq.ft., that too, from the very same year, it cannot be said that the fair rent fixed by the Rent Control Court at the rate of Rs.45/- per sq.ft., is exorbitant in any manner. As rightly pointed out by the learned counsel for the R.C.Rev. No.210 of 2020 -: 10 :- landlords, in light of Ext.A4 lease deed, it is a case where the landlords could have certainly attempted for enhancement of fair rent for the premises at a rate above the rate fixed by the Rent Control Court. Needless to say, the finding rendered by the Appellate Authority in this regard can be said to be a finding which, if allowed to stand, would result in gross miscarriage of justice. 12. It is unnecessary for us to deal with the submission made by the learned Central Government Counsel as regards surrender of the premises, as the liability of the tenant to pay fair rent would cease to exist on surrender of the premises. As regards the submission made by the learned counsel for the tenant concerning the area of the subject premises, the learned counsel for the landlords fairly conceded that if the actual area is only 4628 sq.ft., fair rent need be granted to them only for the said area. In the result, the appeal is allowed, the decision of the Appellate Authority is set aside and the decision of the Rent Control Court is restored with the clarification that the tenant is liable to pay fair rent only for 4628 sq.ft. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB