IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 30424 of 2010(C) -------------------------------- PETITIONER(S): ------------------ T.A.HABEEB REHMAN, KANIYAMPARAMBIL, NISHANA MANZIL, MUNDAKAYAM. BY ADV. SRI.T.I.ABDUL SALAM SRI.PHILIP T.VARGHESE RESPONDENT(S): -------------------- 1. P.S.ISMAIL, PUTHUPARAMBIL, KOOTTICKAL, PROPRIETOR, P.S.ISMAIL & SONS, MUNDAKAYAM P.O., KOTTAYAM DISTRICT-686 513. 2. ACCOMODATION CONTROLLER & TAHASILDAR KANJIRAPPALLY, KOTTAYAM DISTRICT-686 507. ADV. SRI.SHAJI P.CHALY FOR R-1 SR. GOVT. PLEADER SRI.V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ W. P. (Civil) No.30424 of 2010 ------------------------------------------------ Dated this the 21st day of October, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this Writ Petition filed under Article 226 of the Constitution of India by the landlord is Ext.P5 order of the Accommodation Controller permitting the tenant to carry out the various items of maintenance and repairs described in the A.C. Petition filed by him. Various grounds are raised in this Writ Petition challenging Ext.P5. 2. We have heard submissions of Sri.Philip T. Varghese, the learned counsel for the petitioner and those of Sri.S.P.Chaly, the learned counsel for W. P. (Civil) No.30424 of 2010 -2- the respondents/tenants. Even though Sri.Philip T. Varghese addressed strenuously on the basis of the various grounds in the Writ Petition, what appealed to us most was his argument that the Accommodation Controller under Ext.P5 has virtually permitted the tenant to expend unlimited amounts and to claim adjustment of such amounts against future rent. If Ext.P5 is allowed to stand, the respondent will expend several lakhs of rupees with the result that the petitioner/landlord will not be able to recover any amount from the respondent towards rent. Sri.Philip submitted that the building abuts K. K. Road and is in the heart of Mundakayam town. If the building is let out today, it will fetch at least Rs.6,000/- per mensem. 3. Sri.Chaly submitted that as per the W. P. (Civil) No.30424 of 2010 -3- estimate prepared by the respondents, the total cost in carrying out the repairs will be around Rs.75,000/-. He submitted that there is no infirmity about Ext.P5 as the landlord had not carried out the repairs despite a demand in that regard by the tenant. 4. When we invited Sri.Chaly's attention to the injustice in the tenant being permitted to expend a huge sum of Rs.75,000/- and permitted further to adjust the entire amount towards the rent payable for the building Sri.Chaly submitted that the tenant is prepared to spend the entire amount himself and that no adjustment will be claimed by the tenant of the said amount towards rent. We record the above submission of Sri.S.P.Chaly. W. P. (Civil) No.30424 of 2010 -4- 5. We have very anxiously considered the rival submissions addressed at the Bar. We find much force in the submission of Sri.Philip that the rent of Rs.400/- per mensem presently being paid by the respondent is very low, when compared to the rent prevailing in the locality. We are of the view that in the totality of the circumstances attending on this case, it is not just to permit the respondent to expend the requisite amount of Rs.75,000/- and then adjust the same against the rent payable to the landlord. We feel that this is a fit case where the tenant can be permitted to expend the entire amount by himself and carry out the repairs without any entitlement for adjustment of the amounts towards future rent. In this context, we are relying on the submission W. P. (Civil) No.30424 of 2010 -5- made by Sri.Chaly already recorded by us in paragraph 4 above. We also feel that the rent also can be re-fixed prospectively with effect from 1st November, 2010 at the rate of Rs.1,500/- per mensem. It is open to either party to move the Rent Control Court by appropriate petition under Section 5 for fixation of fair rent. Till such time as fair rent is fixed, the respondent shall pay rent at Rs.1,500/- per mensem. The result of the above discussion, therefore, is as follows:- 6. Ext.P5 is modified and the respondent is permitted to carry out the various items of repairs and maintenance mentioned in Ext.P1 petition at his own cost. The amounts expended are not liable to be adjusted towards the rent due for the building. At the same time, we make it clear that W. P. (Civil) No.30424 of 2010 -6- the respondents will not be entitled to make structural alterations to the building. The works to be done by the respondents should be confined to what are sought for in Ext.P1. The rent payable by the respondents is re-fixed at Rs.1,500/- per mensem with effect from 1st November, 2010. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/- W. P. (Civil) No.30424 of 2010 -7-