NALLA THAMPY THERA Vs. ABDULLA

JUDGEMENT

(1.) Petitioner has approached this Court seeking a declaration that sub-s. (3) of S.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 an amount of Rs. 25,000/- as rent advance. Claiming arrears of rent landlord approached the Rent Control Court for eviction. Eventhough 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 landlord 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:

(2.) Petitioner placed reliance on the decision of the Apex Court in Modern Hotel, Gudur v. K. Radhakrishnaiah, AIR 1989 SC 1510 , K. Narasimha Rao v. T.M. Nasimuddin Ahmed, AIR 1996 SC 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 months rent. The balance is liable to be adjusted. Petitioner also submitted this Court in Issac Ninans case (supra) had quashed only part of S.8 of the Rent Control Act pertaining to fair rent. The rest of the section stands. Counsel submitted S.12(3) directing the tenant to put the landlord in possession in case there is arrears of rent especially when advance amounts 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 Ninans case (supra) has struck down S.5, 6 and 8 in its entirety. We are of the view since S.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: