Thankamma and others v. A. Ponnuswami Chettiar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **RCRev..No. 244 of 2012 (B)** **-------------------------------------[R.C.A.NO. 20/2010 DTD. 07/01/2012 OF THE 1ST ADDITIONAL - RENT CONTROL APPELLATE AUTHORITY/IADDL. DISTRICT JUDGE, KOLLAM, R.C.(O.P).NO.34/2005 OF THE ADDITIONAL RENT CONTROL COURT, KOLLAM]** **...............** **REVISION PETITIONERS/ADDITIONAL APPELLANTS 2 TO 8/LEGAL HEIRS OF THE RESPONDENT:** **----------------------------------------------------------------------------------------------------------------------** ## **1. THANKAMMA,** - **W/O. THE LATE KUMARAN, KMC NO.747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** **2. VIJAYAN, S/O THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** ## **3. RAJAN,** - **S/O.THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** ## **4. RAMESH,** - **S/O.THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** ## **5. SYAMALA,** - **D/O.THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** ## **6. SANTOSH,** - **S/O.THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** ## **7. BIJI,** - **S/O.THE LATE KUMARAN, KMC NO:747/XVIII, THAMARAKKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM.** **BY ADV. SRI.R.NIKHIL.** ## **REVISION RESPONDENT/RESPONDENT/PETITIONER:** **------------------------------------------------------------------------------** **A.PONNUSWAMI CHETTIAR,, AGED 82 YEARS, S/O.ARUNACHALAM CHETTIAR, RESIDING AT THAIVEEDU, THAMARAKULAM, KOLLAM EAST VILLAGE, KOLLAM-691 001.** **BY ADVS. SRI.ALEX N.MATHEW (KOLLAM), SRI.H.RAMANAN, SRI.JAMES JOSE.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18-07-2013, ALONG WITH R.C.R.NO.103/2013 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.Nos. 244/2012 & 103/2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 18th DAY OF JULY, 2013** ## **O R D E R** ## Ramachandran Nair, J. Both these revision petitions arise from the same proceedings, viz. R.C.(OP) No.34/2005 and R.C.A. No.20/2010 respectively, filed by the tenant as well as the landlord. The basic issue is one regarding the fixation of fair rent. 2. The Rent Control Court by the order impugned by the tenant, fixed fair rent at the rate of ₹.9/- per sq. ft., totalling ₹.11,137/- and the landlord is also allowed to realise enhanced rent at 5% of the rent per year. The Appellate Authority has scaled down the said rate of rent to one of ₹. 7/- per sq.ft. totalling to ₹.8662/-. Thus, the rate adopted by the Rent Control Court, viz. ₹.9/- has been reduced to ₹.7/- per sq. ft. 3. The landlord, in the revision petition filed here, seeks enhancement of the rent fixed by the Appellate Authority, by restoring the order passed by the Rent Control Court. 4. We heard Shri R. Nikhil, learned counsel appearing for the tenant RCR 244/2012 & 103/2013 -2- and Shri Alex N. Mathew, learned counsel appearing for the landlord. 5. The averments in the Rent Control Petition will show that the landlord claimed that a big godown having plinth area of about 800 sq. ft. is situated on the eastern side of the property having an extent of 9 cents. On the western side of the said godown another shed having plinth area of 607.5 sq. ft. is also existing. Both these are being enjoyed together by the tenant. 6. Even going from para 2 of the Rent Control Petition it can be seen that the shed herein is a thached one, even though the details of the shed are not averred in the petition. The landlord initially claimed that if a fair rent is fixed, it can be taken as ₹.17/- per sq. ft. for the godown and ₹.13/- per sq. ft. for the thached shed and the cumulative monthly rental value of the building will be ₹.21,497/-. He has limited the claim for enhanced rent at ₹.21,000/- per month. 7. Going by the averments in the petition, at the time of letting out of the building, viz. on 24.11.1973 the monthly rent was ₹.365/- which was enhanced to ₹.400/- and then to ₹.1,000/- from 24.1.1996 onwards. The tenant has filed a detailed objection to the petition. The Advocate RCR 244/2012 & 103/2013 -3- Commissioner appointed by the Court, has filed Ext.C1 report which gives some details of the building. We are referring to the said details in the light of the contention by the learned counsel for the tenant that both the godown and the thached shed cannot be taken together for fixing the same rate of rent. The description of the godown is available in para 4 of the report and in para 5 the details of the thached shed is given. The roof of the shed is constructed by placing sheets over bamboo poles. The age of the shed appears to be 34 years and the age of the godown appears to be 40 years. It is also in evidence that the front portion of the godown consists of three shop rooms, facing the road on the northern side and the entry to the godown is through the shed on the rear side. 8. Both sides have adduced evidence and the landlord has produced Exts.A1 to A4. Exts.B1 and X1 are the documents produced on the side of the tenant. The landlord was examined as P.W.1 and Exts.CPWs.1 and 2 have been examined on the side of the tenant. 9. Learned counsel for the tenant submitted that both the authorities below have not considered the real aspects and the basic approach made is also not correct. He raised a vehement contention that when the landlord RCR 244/2012 & 103/2013 -4- himself had claimed the fixation of fair rent at a different rate for the godown portion as well as for the shed, the fixation as now done by both the authorities below, by way of a uniform rate, is not justified. Learned counsel further submitted that even for fixing the rent at the uniform rate of ₹.9/- per sq. ft. by the Rent Control Court and at ₹.7/- by the Appellate Authority, no comparable deed or documents are there. It is further submitted that the building is not having direct access to a road and the road is at about 25 1/2 ft. away. It is submitted that the basic materials for fixing fair rent are absent and hence the authorities below could not have resorted to guess work and therefore the fixation as now done has no real nexus with the facilities provided in the godown and the shed, the importance of the locality and other relevant factors. 10. Learned counsel for the landlord submitted that the shop rooms on the front side are fetching good rent. The godown used by the tenant for doing business in coal and he is having very good business, in the light of the nearness of the building to the important market place in Kollam, viz. Chinnakkada. It is also submitted that the landlord is entitled for a higher rent as the tenant is using both the godown as well as shed as a compact one RCR 244/2012 & 103/2013 -5- and in that context it is submitted that no fault has has been committed by both the authorities. 11. We have gone through the orders passed by the Rent Control Court as well as the Appellate Authority. It is seen from the report of the Commissioner that the length of the godown is 33 ft., 19.5 ft. width and about 13 ft. height. It is having tiled roof. The length and width of the shed adjoining the godown is 44 ft. and 13.5 ft. Thus, the plinth area of the godown is 643.5 sq. ft. and that of the shed is 594 sq. ft., totalling to 1237.5 ft. Ext.A4 is the copy of the rent deed executed in favour of the landlord by the tenant in respect of the shop rooms adjacent to the present building. The plinth area of the shop room is 72 sq.ft. and the monthly rent is ₹.850/-. Ext.X1 rent deed was marked on the side of the tenant, by CPW 2 which is in respect of the building belonging to Kollam Merchants Association. The said building is situated around 50 ft. away from the schedule building. The area of the said building is 1000 sq. ft. and the monthly rent is ₹. 6,750/-, going by Ext.X1. 12. The Rent Control Court was of the view that the building is in a commercially important area being near Chinnakkada. It was also observed RCR 244/2012 & 103/2013 -6- that the entire land is having 9 cents in extent and the tenant is using it for loading and unloading firewood. After considering the relevant tests for fixing the rental value, it was observed that Ext.B1 cannot be relied upon. It was noted that there are two structures, one is a godown and the other is a shed attached to it. But the Court rejected the argument of the tenant that the rent of the shed will be lower than that of the godown on the finding that it depends upon the importance of the locality and the nature of the building. 13. Going by the details given in para 8 of the order of the Rent Control Court, the godown is a tiled one and constructed with bricks and the shed is thached with sheet. Prima facie it cannot be said that the fixation can be at a uniform rate. We are not going into the details of the construction, the cost of construction or other factors as many of the aspects have not been proved in evidence by both sides and therefore it requires a remand to the Rent Control Court itself. 14. The relevant principles for fixing fair rent have been laid down by a Division Bench of this Court in **Edger Ferus v. Abraham Itticheriya** (2004 (1) KLT 767). Therefore, the approach should be one to find out RCR 244/2012 & 103/2013 -7- what should be the fair rent in terms of the principles stated by this Court in the above decision. 15. Herein, we are of the view that for the Rent Control Court to fix the rent at ₹.9/- per sq. ft. and for the Appellate Authority to fix it at ₹.7/per sq. ft. no comparable deed or documents were there. The evidence with regard to rate of rent of any godown in the nearby area of a similar locality is also not there, for enabling this Court to assess the relevant materials to find out whether the rent fixed by the Rent Control Court is correct. It is argued by the learned counsel for the landlord that a fixation at higher rate is required, which is disputed by the learned counsel for the tenant. 16. The matter, therefore, requires a re-consideration and we dispose of the revision petitions by setting aside the orders passed by the Rent Control Court and the Appellate Authority and remanding the matter back to the Rent Control Court. All the relevant aspects will be considered for taking a fresh decision. Both parties are allowed to amend or add to pleadings and produce documents and to examine witnesses. Since it is a Rent Control Petition of the year 2005, efforts will be taken to dispose of the matter within six months. RCR 244/2012 & 103/2013 -8- By an interim order passed by this Court on 26.7.2012 the tenant was directed to pay rent at the rate of ₹.7,000/- per month and it is submitted that rent is being paid at the same rate till today. The said arrangement will continue till a proper fixation is made by the Rent Control Court. The parties will appear before the Rent Control Court on 12.8.2013. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**