IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 18252 of 2007(W) -------------------------- PETITIONER: -------------- USHA JACOB, AGED 56 YEARS, 29/30-A, S.A.ROAD, KOCHI-19. BY ADV. SRI.P.GEORGE VARGHESE RESPONDENTS: ----------------- 1. PRINCIPAL SECRETARY TO GOVERNMENT, HOME@DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SHERISTADAR, DISTRICT COURT, ERNAKULAM. R1 & R2 BY GOVERNMENT PLEADER, SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 18252/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE LETTER ISSUED BY THE LEARNED DISTRICT JUDGE, ERNAKULAM EXT.P2 : TRUE COPY OF LETTER ISSUED FROM THE HOME(C) DEPARTMENT DATED 15.1.03. EXT.P3 : TRUE COPY OF LETTER DATED NIL. EXT.P4 : TRUE COPY OF THE JUDGMENT IN WPC : 10974/05 OF THIS HON'BLE COURT. EXT.P5 : TRUE OCPY OF REPRESENTATION DATED 22.02.07. EXT.P6 : TRUE COPY OF THE AGREEMENT DATED 25.06.03. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 18252 OF 2007 ------------------------------------------------- Dated this the 4th day of June, 2009 JUDGMENT Petitioner's building, allegedly having an area of 9700 Sq.ft., was leased out to the respondents for housing the CBI Courts I and II, Additional Judicial Magistrate Court (Economic Offence) and Special Judicial Second Class Magistrate Court. Petitioner's grievance in this writ petition is that rent arrears due from the respondents to the petitioner have not been paid. Petitioner therefore seeks the following relief: “i. issue a writ of mandamus or other appropriate writ, or order or direction directing the respondents to consider Ext.P5 representation submitted by the petitioner before the respondents and direct the respondents to pay the rent arrears due to the petitioner calculating the arrears @ Rs.5.75 for the 1st and ground floor and Rs.5 for the second floor.” 2. It is now admitted that the arrears of rent as admitted by the Government has already been paid. But the petitioner now contends that, that amount is less than the contract rent. According to the petitioner, at the time of grant of lease the agreed rent was Rs.5.75 per Sq.ft. for the area on the ground floor and first floor and Rs.5.50 WPC : 18252/07 -:2:- per Sq.ft. for the area in the second floor. But what has been paid by the respondents is only at the rate of Rs.4.75 per Sq.ft. for the area on the ground floor and first floor and Rs.4/- per Sq.ft. for the area on the second floor. Petitioner seeks a direction to the 2nd respondent to pay the balance calculated at the rates claimed by her. 3. A counter affidavit has been filed by the 1st respondent disputing the contentions of the petitioner. According to the 1st respondent, advance possession of the building was taken on the understanding that rent would be paid as fixed by the PWD. It is stated that the PWD fixed the rent at the rate of Rs.24,374/- per month. However, taking into consideration the representation of the petitioner, as directed in Ext.P4 judgment, it was decided to grant the petitioner a special rate of rent at the rate of 4.75 per Sq.ft. for the area on the ground floor and first floor and Rs.4/- per Sq.ft. for the area on the second floor and the arrears at that rate have already been paid. According to the respondents, no further amounts are therefore due to the petitioner. 4. I have considered the rival contentions in detail. Payment of rent for a building depends on the rate agreed to between the parties WPC : 18252/07 -:3:- as per the contract. No agreement is produced before me by the petitioner. Petitioner can claim only what the respondents had agreed to pay. She had a contention that respondents had agreed to pay Rs.5.75 per Sq.ft. for the area on the ground floor and first floor and Rs.5.50 per Sq.ft. for the area on the second floor. But no evidence has been produced before me in support of that contention. The same is also disputed by respondents. According to them, they had agreed to pay rent fixed by PWD. 5. Earlier the petitioner had approached this Court by filing WP(C) No.10974/06 in which, by Ext.P4 judgment, I had directed the respondents to consider the representation filed by the petitioner in this regard. It is stated in the counter affidavit that considering the representation of the petitioner a special rate of rent which is more than that fixed by the PWD has been sanctioned to the petitioner and arrears have been paid. In such circumstances, I do not think that in exercise of the powers under Article 226 of the Constitution of India, I can direct the respondents to pay enhanced rent at the rate requested for by the petitioner. If the petitioner has got a case that the agreed rent was higher, it has to be proved by evidence. The WPC : 18252/07 -:4:- petitioner has not been able to prove the same before me. In such circumstances, I am unable to countenance the claim of the petitioner. Accordingly, the writ petition is dismissed. I have taken the above view only because without evidence, the claim of the petitioner cannot be decided. If the petitioner is confident that the she can prove her case by producing other evidence, it would be open to the petitioner to seek appropriate reliefs in a suit, if at this distance of time the petitioner can validly do so. S. SIRI JAGAN, JUDGE ttb