P.P.Alikoya vs General Manager
2024 Latest Caselaw 26558 Ker

Kerala High Court

P.P.Alikoya vs General Manager on 5 September, 2024

Author: Amit Rawal

Bench: Amit Rawal

RCREV. NO. 92 OF 2024         1              2024:KER:67615




            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                     &

             THE HONOURABLE MR. JUSTICE EASWARAN S.

   THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946

                        RCREV. NO. 92 OF 2024

     AGAINST THE JUDGMENT DATED 19.09.2023 IN RCA NO.107 OF

2022 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II ARISING OUT OF

THE ORDER DATED 27.09.2022 IN RCP NO.145 OF 2018 OF ADDITIONAL

MUNSIFF COURT ,KOZHIKODE-II

REVISION PETITIONER(S)/APPELLANT/PETITIONER :

          P.P.ALIKOYA
          AGED 76 YEARS,
          S/O LATE MAMMMU,
          ALI'S MANSION,
          PANNIYANKARA AMSOM DESOM,
          KALLAI. P.O, KOZHIKODE TALUK,
          KOZHIKODE DISTRICT, PIN - 673003

          BY ADVS.
          K.SANEESH KUMAR
          V.B.SANTHINI


RESPONDENT(S)/RESPONDENT/RESPONDENT :

          GENERAL MANAGER
          FEROKE CO-OPERATIVE URBAN BANK LIMITED,
          FEROKE AMSOM, NALLUR DESOM,
          KOZHIKODE TALUK,
          KOZHIKODE DISTRICT,
          PIN - 673631
 RCREV. NO. 92 OF 2024      2               2024:KER:67615




          BY ADVS.
          V.V.SURENDRAN
          P.A.HARISH(K/000392/1991)
          DONA PAUL(K/001661/2018)
          DIVIN V.VIJAYAN(K/002894/2023)



     THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RCREV. NO. 92 OF 2024          3                     2024:KER:67615



                  AMIT RAWAL & EASWARAN S., JJ.
                       --------------------------------
                         R.C.R. No.92 of 2024
                ------------------------------------------
              Dated this the 5th day of September, 2024

                                   ORDER

AMIT RAWAL, J.

The present revision petition at the instance of the

petitioner/landlord is directed against the findings of the Rent

Controller dated 27.9.2022 in R.C.P. No.145 of 2018 preferred by the

petitioner/landlord under Section 5(1) of the Kerala Building (Lease

and Rent Control) Act, assessing the market rate of rent at the rate of

Rs.26/- per square feet by confining the period from 1.10.2018 to

28.9.2019, as affirmed by the appellate authority in R.C.A. No.107 of

2022 vide judgment dated 19.09.2023.

2. The respondent/tenant, as per the contentions of the

petitioner/landlord, was inducted as a tenant for carrying out the

activity of Urban bank at a rent of Rs.17/- per square feet of an area

measuring 1711 square feet. During the pendency of the

aforementioned petition, the bank came out with a plea that they have RCREV. NO. 92 OF 2024 4 2024:KER:67615

already vacated the premises on 28.09.2019 ,thus, not liable to pay

the rent as allegedly claimed by the petitioner upto the date of filing

of the petition till the date of decision thereof. Besides the

aforementioned averments, the petitioner/landlord had also brought

on record Ext.A4, the Commission Report, to show that for an area

measuring 2000 square feet on the first floor, another similar bank is

paying the rent at the rate of Rs.80/- per square feet.

3. The Rent controller on the basis of the evidence assessed

the market rent at the rate of Rs.26/- per square feet for a period

from 1st October 2018 till 28 th September 2019. In the appeal

preferred also, the findings were affirmed.

4. Mr. Saneesh Kumar, learned counsel appearing on behalf of

the petitioner submitted that both the Rent Controller as well as the

Appellate Court have committed illegality and perversity in not

assigning any reasons for not taking into consideration Ext.A4 lease

deed which shows that an area measuring 2000 square feet on the

ground floor of the very same building was given on rent to State Bank RCREV. NO. 92 OF 2024 5 2024:KER:67615

of India by fetching rent at the rate of Rs.80/- per square feet. It was

next contended that the bank miserably failed to prove the fact of

handing over the possession on 28th September 2019 for, the

petitioner landlord has already filed a petition against the

respondent/tenant on the ground of 'ceased to occupy' and therefore,

the rent should not have been assessed till the adjudication of the rent

petition i.e., upto 2022, but till the actual vacation of the premises.

5. Before concluding the argument, the learned counsel

submitted that, this Court, vide order dated 16.8.2024, had directed to

ascertain whether the bank had actually surrendered the conscious

possession of the premises or not, and appointed Sri.Rebin Vincent

Gralan and Sri.Erfan Ebrahim Sait as Advocate Commissioners to

inspect the premises in dispute. It was also directed that the Advocate

Commissioners shall inspect the premises by video graphing it or

taking the pictures or both and submit the report by 21.8.2024. The

learned counsel also requested us to see the videograph and by

relying on the videograph submitted that the order under challenge is RCREV. NO. 92 OF 2024 6 2024:KER:67615

liable to be set aside.

6. On the other hand Mr.P.A. Harish, learned counsel

appearing on behalf of the respondent bank countered the argument

and submitted that the stubborn attitude and conduct of the

petitioner/landlord is the core issue for adjudication of the lis as

despite numerous requests, the landlord did not permit the bank to

remove the unused tables,other fittings and fixtures lying in the

premises except the removal of the locker of the strong room. Keeping

in view those facts, the courts below have confined the assessment of

the market rent for the period aforementioned. However, did not deny

the fact that in the proceedings for assessment of fair rent, never

moved an application for removing the fixtures under the order of the

court but submitted that in a separate proceedings seeking eviction on

the ground of ceased to occupy, such statement have been filed.

7. We have heard the learned counsel for the parties,

appraised the paper book and also the commission report and the

video records. The video recordings displayed during the court RCREV. NO. 92 OF 2024 7 2024:KER:67615

proceedings revealed that the entire fixture, fittings and other material

of the bank are still in tact. Though both landlord and tenant had not

been able to give the keys of the lock put on the gate, the local

commissioners, with the assistance of the locksmith had broken the

lock which we have seen from the video. The report reveals that the

strong room has been removed by damaging the face of the wall but

the conscious possession is still with the bank. It is a matter of record

that the bank has not assailed the findings of the courts below in

fixing the fair rent from Rs.17/- to Rs.26/- per square feet. The only

dispute is with regard to the period and rate as raised by the

petitioner. As far as the non consideration of the document, Ext.A4,

fetching the rent at the rate of Rs.80/- per square feet of an area of

2000 square feet on the ground floor, we are of the view that it has

better amenities as compared to the demised premises, thus, the

finding of the courts below in fixing the fair rent is perfectly legal and

justified.

8. The only issue now being pointed after noticing the report RCREV. NO. 92 OF 2024 8 2024:KER:67615

of the advocate commissioner is whether the orders of the court below

confining the arrears of rent with effect from 1st October 2018 to 28 th

September 2019 is justified; the answer is not, in view of the

observation recorded above and as well as the report of the Advocate

Commissioner. Thus, we modify the orders under challenge and direct

that the landlord is entitled to claim the fair rent with effect from 1st

October 2018 till the bank vacates the premises.

With the above observation this Rent Control Revision stands

disposed off.

Sd/-

AMIT RAWAL JUDGE

Sd/-

                                             EASWARAN S.
                                                 JUDGE
   NS
 RCREV. NO. 92 OF 2024        9              2024:KER:67615





RESPONDENT ANNEXURES

Annexure C1            A true copy of the video footage

approximately 7" minutes of the inspection dated 17.08.2024 contained in san disk cruzer blade usb 2.0 flash (confidential) drive 16B packed in sealed cover

Annexure C2 A true copy of the photographs of the scheduled property / tenanted premise and the adjoining properties dated Nil

Annexure C3 A True Copy of the Eye Sketch of the schedule property / tenanted premise and the adjoining properties dated 17.08.2024

Annexure C4 A true copy of the letter sent by the respondent bank to the landlord revision petitioner dated 04.12.2018 Annexure C5 A true copy of the letter sent by the respondent bank to the landlord revision petitioner dated 13.08.2019 Annexure C6 A true copy of the receipt showing that the respondent bank paid rupees ₹40,000 to Mr M.P Ali Contractor and Khalasi for shifting Lockers, Defender Door along with Grilled Gate from the Strong Room Dated 09.09.2019

Annexure C7 A true copy of the bank statement of Mr M.P Ali Contractor and Khalasi at The Federal Bank , Corporate office at Aluva showing that he received ₹40,000 on 09.09.2019

Annexure C8 A true copy of the order/ Commissioners Warrant in R.C.R 92 of 2024 by High Court of Kerala appointing advocate commissioners dated 16.08.2024 Annexure C9 All 3 key of new lock- Global belongs to the lock of scheduled property/tenanted premises produced herewith and submitted in sealed cover.