EDGER FERUS Vs. ABRAHAM ITTYCHERIA

JUDGEMENT

(1.) A Division Bench of this Court in Issac Ninan v. State of Kerala (1995 (2) KLT 848) declared Ss. 5, 6 and 8 of Kerala Buildings (Lease and Rent Control) Act (2 of 1965) ultra vires the Constitution of India and held them void and violative of Arts. 14 & 19 (1) (g) of the Constitution of india. The legislative interdiction against receiving anything in excess of the fair rent even from a willing tenant in accordance with the prevailing rate of rent in the locality was held to be an unreasonable restriction on the right to carry on business envisaged in Art. 19 (1) (g) of the Constitution. S. 5 it was felt cannot stand alone without subsidiary and incidental provisions for periodical revision of the fair rent. This Court held the legislative scheme provided through Ss. 5, 6 and 8 is a package and are mutually dependent and that one provision therefrom cannot be extricated from the other two to keep it alone alive.

(2.) ISSAC Ninan's case was later reiterated by a Division bench of this Court in Jan Enterprises v. Aegee Enterprises (2000 (1) KLT 20)and in Mathew Mathew v. Bhaskaran & Ors. (2000 (1) KLJ 302) and referred to by the Apex Court in raghavan v. Habeeb Mohammed & Ors. ( (2000) 10 SCC 180 ). ISSAC Ninan's case was however distinguished in George v. Narayani (1998 (1) KLT 239 ). Relying on the provisions of S. 11 (4) (iv) of the Act and learned Single Judge of this Court p. K. Balasubramanian, J. (as he then was) held that even if S. 5 is taken to be not available, that does not in any manner deprive the Rent Controller of his jurisdiction to fix the fair rent in cases coming under S. 11 (4) (iv) of the Act because the Court while ordering reconstruction has also to order that the landlord is bound to put the tenant in possession of the reconstructed building on a fair rent to be paid by the tenant to the landlord.

(3.) WE may point out though this Court had alerted the state though Issac Ninan & George's case and various orders passed subsequently, no concrete steps have been taken by the State to bring in suitable legislation or provisions in the Rent Act for fixation of fair rent. The issue again came up for consideration before this Bench in Aboobacker v. Vasu (2003 (2) KLT 1029) wherein this Bench had occasion to consider the situation prevailing aftermath of Issac Ninan's case and held that the remedy available to the landlord and tenant to approach the Civil Court would be always cumbersome and time consuming. WE also alerted the State of the necessity to have a comprehensive legislation. WE have also laid down certain parameters for the guidance of the Civil Court for fixation of fair rent. WE also reminded the State Government to take necessary steps to bring in suitable legislation so that the unlawful system of demanding large amount by way of pakidi could also be curbed. Absence of suitable legislation and guidelines have also increased the workload in Civil courts and also before the Rent Control Courts resulting in inconsistent orders and parallel litigations.