PADMANABHA PILLAI ARUNACHALAM PILLAI Vs. NARAYANA PILLAI NATARAJAN

JUDGEMENT

(1.) THE bone of contention in this six year old litigation is the legality of a direction to the landlord not to collect more than Rs.3.50 per mensem by way of rent of a small dwelling house.That the people have still faith in a judicial process which sometimes as in this case,takes,even in petty cases,long years of gestation before it can finally deliver justice is a great tribute to the soundness of the ultimate decision or in symptomatic of a litigation pathology.But that is by the way.A close look at the chronology of this fair rent fixation case reveals that the landlord dissatisfied with the low rent he was being paid,moved the Rent Control Court for fixation of fair rent under S.5 of the Kerala Buildings(Lease and Rent Control)Act,1959(called,for short,the Act.) on 5 -3 -1963.In 10 months the Rent Control Court disposed of the application,although the pious mandate of S.24,fixing 4 months as the outer limit for passing final orders in any rent control proceeding,is more honoured in the breach than in the observance.

(2.) AN appeal was filed on 3 -4 -1964 and was disposed of on 11 -9 -1964.At this stage the landlord,who claims to be aggrieved,went into a long nap to wake up late in 1966 to file a revision in the District Court where it took nearly 2 years to dismiss the landlord's revision.The revision was filed,as I said earlier,over 2 years after the appeal was disposed of,but was admitted and heard because,by a strange omission in the statute,so both sides submitted,no period of limitation is fixed in the matter of entertaining a revision.Litigation can become a long acting torment if an order can be challenged years later on the pretext that there is no period of limitation fixed in the statute.Of course,it is for the legislature to remedy this lacuna,but it is certainly open to the revisional Court to decline to exercise its discretion when a party moves for relief after a period of Indiscreet delay.

(3.) THE question is what is the fair rent of a building under Act 2 of 1965(Which is the successor to Act 16 of 1959 ).The landlord had applied for eviction earlier(BRCP 31 of 1962)on the ground of arrears of rent and there the Court ultimately found that the agreed rent between the parties was Rs.3 -50 and allowed eviction subject to a right of the tenant to deposit the arrears at the agreed rate of rent viz .,Rs.3.50 per mensem.That Court had however observed: "If the rate of rent is too low it is open to the landlords to get the fair rent fixed." So,the landlord moved for fixation of fair rent in BRC No.37 of 1963 which has eventuated in the present revision.But,instead of fixing the fair rent under S.5,the Trial Court,by a simple misconception,held that whatever be the fair rent only the agreed rent need be collected if it was less than the fair rent.This would stultify the entire scheme of fair rent fixation in the Act at the instance of the landlord and the observation of the court in the earlier BRCP.But,Courts have the jurisdiction to decide right and to decide wrong.After considering relevant matters the Rent Control Court observed: "Therefore on the basis of Corporation Assessment Register the fair rent that could be fixed is Rs.12/ - per mensem...... I can only find that the fair rent that could be fixed in respect of the plaint building on the basis of the Corporation assessment is Rs.12/ - per month." It continued in somewhat self contradictory style: "Thus I fix the fair rent of the plaint building at Rs.12/ - per mensem subject to the observation that the petitioners are not entitled to get from the counter petitioners anything more than the agreed rent of Rs.3 -50 per mensem." Thus,the Court said that the fair rent was Rs.12/ -,but the landlord would collect only Rs.3.50 The fallacy into which it fell is traceable to a laconic statement: "But as per the provisions of the B.R.C.Act the petitioners are not entitled to receive from the counter petitioners anything more than the agreed rent of Rs.3.50 " Which provision of the Act the learned Munsiff had in mind is undisclosed.Reading the appellate order we must trace it to S.8(2 )(a)of the Act.The Subordinate Judge,in appeal,came to the conclusion: "As per the Corporation house tax details as evidenced by Ext.P3 and Ext.P4 are concerned the rent can be fixed up to Rs.13.80 per month i.e .,Rs.12 plus 15% over it." After making this hopeful statement,from the point of view of the landlord,the Subordinate Judge suddenly swerved in the opposite direction when he observed: "But under S.8(a)the rent Controller can fix only the agreed rent because that is less than the amount that can be fixed under S.5(2 )." Of course,he found fault with the phrasing of the order by the Rent Control Court and made it happier in these words: "I fix the fair rent at Rs.3.50 per month.......... " The learned District Judge argued, "S.8 clause(2 )(a)lays down that the rent payable for the building notwithstanding anything contained in any contract shall be,where the property tax or house tax has been fixed by the local authority,the maximum rent that may be fixed by the rent Control Court as provided for in S.2 of S.5 or the agreed rent whichever is less.This would mean that if the fair rent fixed is higher than the agreed rent,then the tenant is not liable to pay the higher rate of rent,but instead only the agreed rent which is less than the fair rent fixed.Admittedly,in the present case,the agreed rent is Rs.3.50 p.per mensem.Therefore,there is absolutely no illegality or any impropriety in the orders passed by the subordinate authorities." According to him,S.8(2 )(a)is a bar to collecting anything more than the fair rent as fixed under S.5(2)or the agreed rent,whichever is less.A Plain reading of S.8(2 )(a)which has become the foundation of all the three judgments would dispel the error into which all the three Courts have fallen.The present application is one for fixation of fair rent under S.5 and in such a proceeding there is no room for applying S.8(2 )(a ),for,the very preface to the latter provision is: "Where the fair rent of a building has not been determined under S.5 " How can we apply S.8(2 )(a)to a proceeding under S.5 when the former declares its applicability only to cases where such fair rent has not been fixed? Again,the scheme of S.8(2 )(a)is as follows:Supposing no fair rent has been fixed and the building is one falling under clause(i)or clause(ii)of the proviso to Sub -s.2 of S.5,the landlord can collect nothing more than the agreed rent or the maximum rent that may be fixed by the Rent Control Court as provided for in sub -s.2 of S.5.That maximum is 15% over the monthly rental on the basis of which the property tax or house tax for the building has been fixed.This is really a protection to the tenant in cases where the municipal tax has been computed on a low monthly rent i.e.lower than the actual rent collected by the landlord.In such cases,notwithstanding the non fixation of fair rent,the tenant can refuse to pay even the contract rate and can choose to pay the maximum that can possibly be fixed adopting the formula of S.5(2 ),if that happens to be less than the agreed rent.None of these considerations apply to a proceeding which seeks to fix the fair rent itself.There,the only considerations are those set out in S.5.So,what has happened in the present case is that the three courts which had jurisdiction to fix the fair rent under S.5 declined to do so and on the contrary,while they had no jurisdiction to fix the fair rent under S.8 - S.8 does not arm any Court with power to fix the fair rent - they purported to fix the agreed rent as fair rent.5.I am constrained,therefore,to set aside all the three orders.Since the Rent Control Court has made an apology for fixing the fair rent at Rs.12 and since this litigation has stood such a long time without reaching anywhere near the end,I think it just to remand the case to the appellate authority to rehear the appeal and fix the fair rent under S.5 of the Act.Parties are not inclined to agree to a figure and extinguish this prolonged lis.The relevant considerations for fair rent fixation,have been explained in Kunhammed Keyi v.Premalatha(1962 KLT 366 FB ).The authorities functioning under the municipal or the Panchayats Acts fix reasonable rent of the building for the purpose of assessment of local tax.The considerations for fixing the gross annual rent at which the building may reasonably be expected to be let from month to month or from year to year are more or less similar to those that may weigh with the Rent Control Court also while fixing the fair rent,although they may not be identical.The condition of the building,the access to it,the appurtenances and amenities,the fact of furniture and fittings being made available are some of the considerations which govern the fixation of fair rent.There are other factors also which are germane to assessing fair rent under the Act,based not on economic justice between two individuals(the landlord and tenant in the case)but on broader factors pegging rents to what prevailed in the year of letting and giving increases according to circumstances.I need not go into it at greater length here,therefore direct the appellate authority to rehear the appeal.The fact that the tenant has not come up in appeal is not a matter of consequence and the authority will examine the propriety of fixing it either at Rs.13.80(which is the ceiling under S.5(2 )(ii)proviso)or at something less.It may be less than Rs 12/ - or it may be more,depending upon the various circumstances relating to the building,locality and other conditions.It will be open to the appellate authority to take evidence directly or through the Rent Control Court,in case it is felt necessary.