P NALLA THAMPY THERA Vs. SECRETARY

JUDGEMENT

(1.) Petitioner has approached this Court seeking a declaration that subsection (3) of Section 12 of the Kerala Buildings (lease and Rent Control) Act, 1965 is unconstitutional. A writ of certiorari was also sought for to quash the order of the Rent Control Court, Sultanbattery dated 29-10-2001 in I.A. 595/01 since the same is in violation of the various decisions of the Supreme Court. The party appeared in person. He is a tenant in the rented premises of 1070, 1071/VI, Chungam , Sultanbattery. According to him when he took the building on rent on 16-7-1988 he had paid and amount of Rs. 25,000/- as rent advance. Claiming arrears of rent landlord approached the Rent control court for eviction. Even though eviction was ordered the tenant subsequently remitted a portion of the arrears of rent. With regard to the balance amount due tenant took up a contention before the Rent Control Court that an advance of Rs. 25,000/- is already lying with the tenant and if it is adjusted there will not be any arrears. The plea was rejected by the Rent Controller as well as the Appellate Authority. Consequently he approached this Court and filed C.R.P. 1097 of 1997 which was disposed of by this court on 26-2-2000 stating as follows : "We are of the view that the appellate authority was right in holding that the appeal was premature and an appeal will lie only against a final order that may be passed by the Rent Controller on the petition under Section 12 of the Act. Hence, in a way it is possible to say that this Civil Revision Petition is not maintainable since the appeal before the appellate authority itself was not maintainable. But taking into account the fact that during the pendency of the C.R.P. Various amounts have been paid by the tenant towards arrears of rent, we think, it is proper to direct the Rent Controller to take note of all such payments effected subsequent to its order dated 8-3-1996 and decide whether the entire arrears of rent subsequent to January, 1995 till date has been discharged. If the Rent Controller finds that there has been discharge, obviously, the application filed under Section 12 of the Act is only to be dismissed."Subsequently matter was heard by the Rent Control court on 29th October, 2001. Before the Rent controller a contention was raised by the tenant that he had already paid an amount of Rs. 25,000/- as advance to the landlord at the time of letting out the building and the same is liable to be adjusted towards arrears of rent since the landlord is entitled to receive only one month's rent as advance. Reference was also made to Section 8 of the Act and contended that landlord is entitled to receive only one month's rent as advance and if the landlord has received an amount exceeding one month rent as advance, the tenant is entitled to adjust the amount exceeding one month rent in monthly rent payable by the tenant. Reference was also made to the decision of this Court in Issac Ninan v. State of Kerala, 1995(2) K.L.T. 848. The contention raised by the tenant was rejected by the Rent control Court. Unless and until the arrears of rent is paid to the landlord or deposited in Court the tenant is not entitled to contest the rent control petition for eviction. Rent Controller has also found in para 7 and 8 of the order that from January 1994 to September 2001 the tenant is liable to pay 93 month's rent at the rate of Rs. 1000/- per month and it would come to Rs. 93,000/- and that the tenant has deposited altogether a sum of Rs. 69,000/- in court till 7.9.2001 and that the balance amount due from the respondent towards the arrears of rent is Rs. 24,000/-. Unless and until the said amount is paid to the landlord or deposited in court the respondent/tenant is not entitled to contest the rent control petition for eviction. Aggrieved by this order this writ petition has been preferred. Petitioner has approached this Court seeking a declaration that subsection (3) of Section 12 of the Kerala Buildings (lease and Rent Control) Act, 1965 is unconstitutional. A writ of certiorari was also sought for to quash the order of the Rent Control Court, Sultanbattery dated 29-10-2001 in I.A. 595/01 since the same is in violation of the various decisions of the Supreme Court. The party appeared in person. He is a tenant in the rented premises of 1070, 1071/VI, Chungam , Sultanbattery. According to him when he took the building on rent on 16-7-1988 he had paid and amount of Rs. 25,000/- as rent advance. Claiming arrears of rent landlord approached the Rent control court for eviction. Even though eviction was ordered the tenant subsequently remitted a portion of the arrears of rent. With regard to the balance amount due tenant took up a contention before the Rent Control Court that an advance of Rs. 25,000/- is already lying with the tenant and if it is adjusted there will not be any arrears. The plea was rejected by the Rent Controller as well as the Appellate Authority. Consequently he approached this Court and filed C.R.P. 1097 of 1997 which was disposed of by this court on 26-2-2000 stating as follows : "We are of the view that the appellate authority was right in holding that the appeal was premature and an appeal will lie only against a final order that may be passed by the Rent Controller on the petition under Section 12 of the Act. Hence, in a way it is possible to say that this Civil Revision Petition is not maintainable since the appeal before the appellate authority itself was not maintainable. But taking into account the fact that during the pendency of the C.R.P. Various amounts have been paid by the tenant towards arrears of rent, we think, it is proper to direct the Rent Controller to take note of all such payments effected subsequent to its order dated 8-3-1996 and decide whether the entire arrears of rent subsequent to January, 1995 till date has been discharged. If the Rent Controller finds that there has been discharge, obviously, the application filed under Section 12 of the Act is only to be dismissed."Subsequently matter was heard by the Rent Control court on 29th October, 2001. Before the Rent controller a contention was raised by the tenant that he had already paid an amount of Rs. 25,000/- as advance to the landlord at the time of letting out the building and the same is liable to be adjusted towards arrears of rent since the landlord is entitled to receive only one month's rent as advance. Reference was also made to Section 8 of the Act and contended that landlord is entitled to receive only one month's rent as advance and if the landlord has received an amount exceeding one month rent as advance, the tenant is entitled to adjust the amount exceeding one month rent in monthly rent payable by the tenant. Reference was also made to the decision of this Court in Issac Ninan v. State of Kerala, 1995(2) K.L.T. 848. The contention raised by the tenant was rejected by the Rent control Court. Unless and until the arrears of rent is paid to the landlord or deposited in Court the tenant is not entitled to contest the rent control petition for eviction. Rent Controller has also found in para 7 and 8 of the order that from January 1994 to September 2001 the tenant is liable to pay 93 month's rent at the rate of Rs. 1000/- per month and it would come to Rs. 93,000/- and that the tenant has deposited altogether a sum of Rs. 69,000/- in court till 7.9.2001 and that the balance amount due from the respondent towards the arrears of rent is Rs. 24,000/-. Unless and until the said amount is paid to the landlord or deposited in court the respondent/tenant is not entitled to contest the rent control petition for eviction. Aggrieved by this order this writ petition has been preferred.

(2.) Petitioner placed reliance on the decision of the Apex court in Modern Hotel, Gudur v. K. Radhakrishnanaiah, AIR 1989 SC 1510, K. Narasimha Rao v. T.M. Nasimuddin Ahmed, AIR 1996 1214 and contended that landlord was not justified in not adjusting advance amount towards rent arrears. According to him, statutorily he is liable to pay only one month rent. The balance is liable to be adjusted. Petitioner also submitted this court in Issac Ninan's case (supra) had quashed only part of Selection 8 of the Rent Control Act pertaining to fair rent. The rest of the selection stands. Counsel submitted Sec. 12(3) directing the tenant to put the landlord in possession in case there is arrears of rent especially when advance amount paid by the tenant is with the landlord is illegal and unconstitutional.

(3.) We find it difficult to accept the contentions of the petitioner. This court in Issac Ninan's case (supra) has struck down Sections 5,6 and 8 in its entirety. We are of the view since Section 8 is not in the Statute book it would be open to the tenant and landlord to enter into an agreement with regard to the payment of advance. In the instant case admittedly the tenant had paid Rs. 25,000/- at the time of letting out the building. It would be profitable to extract the terms of the receipt which reads as follows ; Received Rupees Twenty five thousand only from Dr. P. Nalla Thampi Thera, resident of Sultansbattery as an advance for one room and hall and also Rupees Two Thousand as rent for two months from 16th July 1987 to 16th September 1988 at the rate of Rs. 1000/- per month consolidated for the one hall and one room. The advance amount rupees twenty five thousand is refundable when the hall and room is vacated. Nothing is left in hall and room except one ceiling fan. Water will be provided at nominal rate." (underline supplied) The above mentioned clause reveals that Rs. 25,000/- was intended to be as security and the same would be returned when the room is vacated. Parties never intended to adjust the amount towards rent. Consequently we are of the view that petitioner cannot insist that landlord is bound to adjust the advance amount towards arrears of rent. Landlord on his own volition may adjust the amount towards arrears of rent but the tenant cannot insist that landlord should adjust the same towards arrears of rent.