R.C.Rev Nos. 455, 461, 462 & 463 of 2019 v RAPPAI @ RAPHEL

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **R.C.REV.NO.455 OF 2019 AGAINST THE JUDGMENT DATED 21.12.2018 IN R.C.A.NO.91 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 31.03.2016 IN R.C.P.NO.8 OF 2013 OF THE RENT CONTROL COURT** ## **(MUNSIFF), IRINJALAKUDA** ## **REVISION PETITIONER:** **RAPPAI @ RAPHEL,** **AGED 69 YEARS, S/O. KURIAPPAN, KUNDUKULAM HOSE, VELUPPADAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.** **M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT:** **RAMESH KUMAR, AGED 49 YEARS, S/O KOLANGATTUKARA SREEDHARAN, THALORE DESOM, THRIKKUR VILLAGE, MUKUNDAPURAM TALUK – 680 683.** **BY ADV SRI.MAHESH V.MENON** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH R.C.Rev.463 OF 2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** ## **R.C.REV.NO.461 OF 2019** **AGAINST THE JUDGMENT DATED 21.12.2018 IN R.C.A.NO.85 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 31.03.2016 IN R.C.P.NO.4 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), IRINJALAKUDA** ## **REVISION PETITIONER:** **RAPPAI @ RAPHEL,** **AGED 69 YEARS, S/O. KURIAPPAN, KUNDUKULAM HOSE, VELUPPADAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.** **M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** **RESPONDENT:** ## **RAMACHANDRAN,** **AGED 45, S/O. THANKAM, KAIPILLY HOUSE, ALENGAD DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK - 680 683.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH R.C.Rev.463 OF 2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **R.C.REV.NO.462 OF 2019** **AGAINST THE JUDGMENT DATED 21.12.2018 IN R.C.A.NO.86 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 31.03.2016 IN R.C.P.NO.7 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), IRINJALAKUDA** **REVISION PETITIONER/S:** **RAPPAI @ RAPHEL,** **AGED 69 YEARS, S/O.KURIAPPAN, KUNDUKULAM HOUSE, VELUPPADAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.** **M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT:** **SHAJI GEORGE,** **AGED 48 YEARS, S/O.JULIUS GEORGE, KANNAI HOUSE, MUPILYAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK-680683.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH R.C.Rev.463 OF 2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** ## **R.C.REV.NO.463 OF 2019** **AGAINST THE JUDGMENT DATED 21.12.2018 IN R.C.A.NO.92 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 31.03.2016 IN R.C.P.NO.9 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), IRINJALAKUDA** ## **REVISION PETITIONER:** ## **RAPPAI @ RAPHEL,** **AGED 69 YEARS, S/O. KURIAPPAN, KUNDUKULAM HOUSE, VELUPPADAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.** **M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT:** **JOSE** **AGED 59 YEARS, S/O. POULOSE, KOCHAKKADAN HOUSE, PUDUKADU DESOM,** **THORAVU VILLAGE, MUKUNDAPURAM TALUK - 680 683.** **BY ADV SRI.MAHESH V.MENON** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARINGON 21.03.2022, ALONG WITH R.C.Rev.462 OF 2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ## **O R D E R** ## Ajithkumar, J. These revisions petitions filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, arose from a common judgment of the Rent Control Appellate Authority (Additional District Judge), Irinjalakuda, in R.C.A.Nos.91 & 92 of 2016 and R.C.A.Nos.85 & 86 of 2017. Those appeals along with R.C.A.No.96 of 2016 were allowed by the Appellate Authority as per its common judgment dated 21.12.2018. The Rent Control Court (Munsiff), Irinjalakuda, as per its common order dated 31.03.2016 in R.C.P.Nos.4, 5, 7, 8, 9 and 10 of 2013, fixed fair rent under Section 5(1) of the Act in respect of the petition schedule shop rooms involved in those rent control petitions. The Rent Control Court fixed fair rent at Rs.10 per sq.ft., along with an annual increase of 5%. The Appellate Authority modified that order and fixed fair rent at Rs.5/- per sq.ft., along with an annual increase of 10%. Aggrieved by the said finding of the Appellate Authority, the common revision petitioner, who is the landlord, filed these 6 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 revision petitions and also R.C.Rev.No.111 of 2019. 2. On 06.01.2022, this Court admitted the revision petitions and directed notice to the respondents. 2. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 3. The respondents raised a contention that the relationship between them with the petitioner is a licence and not a lease. The Appellate Authority considered the question in detail and concluded that the relationship is one of tenancy. In fact it was the petitioner who took the stand while filing the rent control petitions that as per licence deeds the respondents were entrusted with the respective petition schedule shop rooms. The respondents, however, denied the said contention and raised a definite contention in the counter statements that they are tenants. When the matters came up for trial, the respondents took a different stand that as licensees they have been possessing the shop rooms. In the light of the definite stand taken by the respondents in the 7 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 counter statements that they are the tenants and not licensees, no more deliberation on the matter is required. They cannot now turn out and say that they are not the tenants. The views taken by the courts below are correct and not liable to be interfered with. 4. For easy reference, the details are tabulated ## hereunder: |R.C.Rev.No.|R.C.A.No.|R.C.P.No.|Agreed<br>rent|Rent fixed<br>by Rent<br>Control<br>Court|Rent fixed<br>by<br>Appellate<br>Authority| |---|---|---|---|---|---| |455/2019|91/2016|8/2013<br>.|790/-|3000/-|1,383/-| |461/2019|85/2017|4/2013<br>.|850/-|3000/-|1488/-| |462/2019|86/2017|7/2013<br>.|790/-|3000/-|1,383/-| |463/2016|92/2016|9/2013<br>.|790/-|3000/-|1,383/-| ## 5. In **Edgar Ferus v. Abraham Itticheriya [2004** **KHC 123 : 2004 (1) KLT 767]** , this Court laid down the principles governing the fixation of fair rent and the Apex Court affirmed the said decision in **Edgar Ferus v. Abraham Itticheriya [2009 KHC 5126 : 2009 (4) KLT 673(SC)]** . 8 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 The Rent Control Court, following those guidelines, fixed the fair rent at the rate of Rs.10/- per sq.ft. to all the petition schedule shop rooms, uniformly. However, the Appellate Authority did not agree with that finding. The Appellate Authority concurred with the findings of the Rent Control Court that these rooms are in an important locality, that area has considerable commercial importance and several institutions of importance are functioning within 100 meters distance. However, after observing that the other buildings/rooms in the nearby locality for which rent at higher rate is being paid by the respective tenants have no comparison with these rooms in terms of age, facilities, etc. and the time gap between date of rent agreements and the rent control petitions refixed the rent at Rs.5/- per sq.ft. 6. The learned counsel appearing for the revision petitioner would submit that the evidence on record was not considered by the Appellate Authority in the proper perspective lest it would not have set at naught the well reasoned finding of the Rent Control Court. 9 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ## 7. Section 5(1) of the Act reads thus: "5. Determination of Fair Rent.- (1) The Rent Control Court shall, on application of the tenant or landlord of a building, fix the fair rent for such building after holding such enquiry as it thinks fit." 8. Section 5 makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to decide the fair rent, it is the responsibility of the Court, after holding an enquiry as it thinks fit in the facts and circumstances of the case, to fix the fair rent. The Court shall take into consideration the evidence let in by the parties and relevant to the issue and fix the fair rent, following the guidelines laid down in **Edgar Ferus (supra)** , which are the following: - “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 10 ## R.C.Rev.Nos.455, 461, 462 & 463 of 2019 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, situations 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. 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. 12. The Rent Control Court can while resolving any rent control dispute on an application either by the landlord 11 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 or tenant examine whether the rent is static and requires revision and fix fair rent accordingly permitting the parties to adduce evidence.” 9. The Rent Control Court, after considering the evidence on record, came to the conclusion that in the light of the commercial importance of the area, where the petition schedule shop rooms situate, the proximity of the rooms to the various institutions of importance, and such other relevant aspects, which can be taken into account as allowed in the guidelines enunciated in **Edgar Ferus (supra)** concluded that a minimum of Rs.10/- per sq.ft. would be the fair rent for the petition schedule shop rooms. The main reason on which the Appellate Authority to dispel the said finding of the Rent Control Court is given in paragraph No.37 of its judgment, which reads,- '37. The rent control petitions were filed almost one year and two months after the execution of rent deeds. There will not be much difference in the commercial importance and cost of living within such a short period. In the said circumstances, the claim of the landlord that the rooms which he had agreed to rent out for rents 12 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 ranging from Rs.790/- to 870/- would fetch Rs.5,400/within the span of one year is difficult to digest.' 10. Even before the petitioner purchased the petition schedule shop rooms, the respondents were the tenants in the respective rooms. After purchase, the petitioner entered into a new agreements with the respondents-tenants on 22.12.2011. Rate of rent of each of the said rooms was agreed to in the said document. It is seen that on considering the rent then in force parties have agreed the rate and stated the same in the respective rent agreements. The Appellate Authority did not take into account the fact that the rent so agreed to between parties has no nexus with the fair rent. 11. PW1, the petitioner, deposed in detail regarding the cost of the land where the building is situated, cost of construction and such other details before the court. PW2 is the Manager of Irinjalakuda Town Co-preoperative Bank. He deposed that the building having 1855 sq.ft. area in the occupation of the Bank was originally availed for a rent at the rate of Rs.13 per sq.ft. and the same was later enhanced to Rs.17 per sq.ft. 13 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 12. PW3 is the Branch Manager of South Indian Bank, Ollaur. He deposed that an ATM counter of the bank is housed in a building situated near to the petition schedule shop room. It has an area of 78 sq.ft. and its rent is Rs.7,000/- per month. Of course, it being a small area with more proximity to the public road, the said rate may not be comparable with the rent which would fetch to the petition schedule shop rooms. But the rent being paid to the building in occupation of Irinjalakuda Town Co-operative Bank certainly has comparability to the petition schedule shop rooms. 13. RW1, the respondent in R.C.P. No. 8 of 2013 deposed regarding the details about the schedule shop rooms. His version is that having the rent been fixed in 2011, there is no reason or necessity to revise it. He has given physical features of the rooms as well. 14. Each of the petition schedule shop rooms has an area of 300 sq.ft.; whereas the area of the bank building is 1855 sq.ft. In the light of the said difference in the area, facilities available to the bank building and also it being a 14 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 recent construction, the rent fetched to that building may not be the appropriate rent for the petition schedule shop rooms. But it certainly has a bearing while fixing the fair rent of the petition schedule shop rooms. 15. The petition schedule shop rooms are in a building abutting the public road. It is not a new construction and the facilities are limited. However, the institutions of importance and such other relevant aspects certainly give commercial importance to the petition schedule shop rooms. Therefore, it cannot be said that the rent agreed to between the parties on 22.12.2011 has a decisive bearing on the fair rent. Further, as per the guidelines in **Edgar Ferus (supra),** the agreed rent has no much relevance while fixing the fair rent. Taking into account all such aspects we are of the view that the Appellate Authority went wrong in interfering with the finding of the Rent Control Court. 16. Different rates were agreed for the petition schedule shop rooms. But when fair rent is fixed for different rooms in the same building, having the same area and similar 15 R.C.Rev.Nos.455, 461, 462 & 463 of 2019 facilities, it is only appropriate to fix a uniform rate. Therefore, the view taken by the Appellate Authority that the fair rent shall be fixed corresponding to the rent agreed to between the parties also cannot be sustained. 17. Therefore, on reversing the findings of the Appellate Authority, we restore the findings of the Rent Control Court. The fair rent for the petition schedule shop rooms is accordingly fixed at Rs.10 per sq.ft. We are of the view that the periodical hike shall be at the rate of 10% in every two years. These revisions petitions are therefore allowed. Fair rent for the petition schedule shop rooms is fixed at Rs.10 per sq.ft. with a hike of 10% in every two years. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr