R.C.Rev. No.253 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944 RCREV. NO. 253 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 27.03.2018 IN RCA NO.15 OF 2015 OF ADDITIONAL DISTRICT COURT, PALA CONCURRING WITH THE COMMON ORDER IN RCP NO.2 OF 2013 DATED** - **21.05.2015 OF MUNSIFF COURT, PALA** ## **REVISION PETITIONERS/APPELLANTS/PETITIONERS:** - **1 ANNAMMA JOHN, AGED 75 YEARS, W/O. LATE C.JOHN, KATTAKKAYAM HOUSE, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **2 RANI ABRAHAM, AGED 56 YEARS, W/O. ABRAHAM THOMAS, KATTAKKAYAM HOUSE, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **3 SWAMI JOHN, AGED 54 YEARS, W/O. JOHN VARGHESE, KATTAKKAYAM HOUSE, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **4 SHEELA KUNCHERIA** - **AGED 54 YEARS, W/O. KUNCHERIA, KATTAKKAYAM HOUSE, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **BY ADV SRI.P.C.HARIDAS** ## **RESPONDENT/RESPONDENT/RESPONDNET:** **V.C. JAMES @ CHACKOCHAN, RIYA SHOPPING CENTRE, KATTAKKAYAM BUILDING, MAIN ROAD, PALA, MEENACHIL TALUK – 686 575.** ## R.C.Rev. No.253 of 2018 -: 2 :- **BY ADVS.** **M. NARENDRA KUMAR** ## **C. RAMAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.253 of 2018 -: 3 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.253 of 2018** ## **----------------------------------------------Dated this the 6[th] day of January, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The landladies in an application 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 shop room in a commercial complex consisting of several shop rooms facing Pala-Kottayam public road near Lalam junction. The rent that was being paid for the room by the tenant to the landladies at the time of institution of the proceedings was Rs.460/- per month. According to the landladies, the area of the room is 210/- sq.ft. and having regard to the commercial importance of the locality, the landladies are entitled to fair rent at least at the ## R.C.Rev. No.253 of 2018 -: 4 :- rate of Rs.45/- per sq.ft. The tenant raised objections to the prayer for fixation of fair rent contending that the rent that is being paid by him represents the fair rent payable in respect of the premises. 3. The husband of one among the landladies gave evidence as PW1. Two witnesses were also examined on the side of the landladies as PW2 and PW3. Exts.A1 to A3 are the documentary evidence on the side of the landladies. The tenant gave evidence as DW1. A witness was also examined on the side of the tenant as DW2. No documentary evidence was let in by the tenant. Ext.X1 is a third party document proved at the instance of the landladies and Exts.X2 and X3 are third party documents proved at the instance of the tenant. 4. The Rent Control Court found, on the basis of the materials on record, that the area of the shop room is 185.85 sq.ft. and fixed the fair rent of the premises at the rate of Rs.13.52 per sq.ft. per month. The tenant accepted the decision of the Rent Control Court. The landladies, however R.C.Rev. No.253 of 2018 -: 5 :- challenged the decision of the Rent Control Court in appeal. The Appellate Authority, on a reappraisal of the materials on record, affirmed the decision of the Rent Control Court. Hence, this revision petition. 5. Heard the learned counsel for the landladies as also the learned counsel for the tenant. 6. As noted, the building, of which the tenanted premises is a part, is situated on the northern side of PalaKottayam road which is a State Highway. There exists another road on the eastern side of the building leading to Kattakkayam. The Pala Branch of Federal Bank is functioning in a building situated on the side of the road leading to Kattakayam. Ext.X1 is the lease agreement in respect of the said premises proved by the petitioner through PW2, the Manager of the Bank. As per Ext.X1, the monthly rent agreed to be paid by the tenant to the landladies for the premises involved therein measuring 3155 sq.ft. is Rs.1,07,270/-. The said rent would workout to be Rs.34/- per sq.ft. Ext.X1 is a ## R.C.Rev. No.253 of 2018 -: 6 :- document executed on 01.10.2012. The application for fixation of fair rent was one instituted on 19.07.2013. Placing reliance on Ext.X1 lease agreement, the learned counsel for the landladies vehemently contended that the shop room in respect of which fair rent is sought to be fixed is situated in a more important commercial locality than the premises involved in Ext.X1 lease agreement, being part of a building situated facing the State Highway, and the authorities below, in the circumstances, ought to have fixed the fair rent of the room at least in tune with the rent fixed in Ext.X1 lease agreement. It was also argued by the learned counsel that the area of the premises was fixed by the Rent Control Court based on the report of the Advocate Commissioner. According to the learned counsel, the Advocate Commissioner has not measured the area of the shop room correctly inasmuch as the area reported by the Advocate Commissioner is the area excluding the racks kept inside the shop room. 7. We have examined the arguments advanced R.C.Rev. No.253 of 2018 -: 7 :- by the learned counsel for the parties. We have also perused the records of the case. 8. Before proceeding to deal with the arguments advanced by the learned counsel for the parties on either side in this regard, 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 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 can be said to be 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 R.C.Rev. No.253 of 2018 -: 8 :- gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act. 9. The fact that the subject shop room is one abutting a State Highway is not disputed by the tenant. Similarly, the fact that there are several commercial and other establishments as also institutions in and around the shop room is also not seriously disputed by the tenant. The dispute was mainly as to the area of the shop room as also the prevalent rent which a willing tenant would pay to the willing landlord. As regards the area of the premises, the case set out by the landladies is that the area is 210 sq.ft. whereas the case of the tenant is that the area is only 175 sq.ft. The Advocate Commissioner appointed in the proceedings reported that the area is 185.85 sq.ft. The landladies have not filed objections to the report of the Advocate Commissioner. The Advocate Commissioner was not examined also by the landladies to discredit the report. It is in the said circumstances that the ## R.C.Rev. No.253 of 2018 -: 9 :- authorities below have proceeded on the premise that the area of the premises is 185.85 sq.ft. We do not find any illegality, irregularity or impropriety in the said view of the authorities below. 10. What remains to be considered is the sustainability of the order of the authorities below fixing the fair rent of the premises at the rate of Rs.13.52 per sq.ft. Even though landladies have given identical premises on rent in the same building to other tenants and even though it is admitted by PW1 who gave evidence on behalf of the landladies that written agreements are entered into with those tenants, the landladies have not made available the lease deeds/lease agreements in respect of the said premises. During crossexamination, the counsel for the tenant elicited from PW1 the rent that is being paid by the tenants in respect of other premises in the very same building including the shop room situated adjoining to the subject premises and it is based on the said evidence, the Rent Control Court fixed the fair rent at the R.C.Rev. No.253 of 2018 -: 10 :- rate of 13.52 per sq.ft., almost in tune with the rent that is being paid by the tenants in the adjoining premises. True, the Pala Branch of Federal Bank is functioning in a building situated almost 500 meters away from the tenanted premises and the Bank is paying to the landlords, rent at the rate of Rs.34/- per sq.ft. Even though the learned counsel for the landladies argued that the branch of the Bank is situated in a less important area when compared to the subject premises, the report of the Advocate Commissioner indicates that the Bank is situated in a more important commercial area. Be that as it may, it has come out that the Bank is functioning in a new building, the construction of which is yet to be completed, whereas the subject premises is part of a building constructed almost 40 years ago. That apart, it has come out that the landlord of the building in which the branch of the Bank is functioning has provided various facilities such as parking space, air conditioning etc. to the Bank and has also constructed a strong room for them. It is on account of the said reasons, despite ## R.C.Rev. No.253 of 2018 -: 11 :- Ext.X1 lease agreement, the authorities below chose to fix the fair rent of the premises at Rs.13.52 per sq.ft. If the tenant in the room adjacent to the subject room is paying rent to the landladies only at the rate of Rs.13.52 per sq.ft. and if the landladies have no complaint about the same, we cannot find fault with the authorities below for having held that the subject building and the building covered by Ext.X1 agreement are not comparable for the purpose of fixing the fair rent of the premises involved in the case on hand. Needless to say, there is no illegality, irregularity or impropriety in the decisions of the authorities below in fixing the fair rent of the premises also. 11. It is now settled that landladies are entitled to periodical revision on the fair rent fixed. The authorities below have not granted periodical revision. Needless to say, to that limited extent, the decisions impugned are liable to be corrected, as the same is an impropriety which could be corrected by this Court, in exercise of the power under Section 20 of the Act. R.C.Rev. No.253 of 2018 -: 12 :- In the result, the revision petition is allowed in part, granting to the landladies periodical revision of fair rent at the rate of 12% per annum once in three years from the date of institution of the proceedings. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB