IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 CRP.No. 473 of 2001() --------------------- AA.116/1999 OF THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR .................... REVN. PETITIONER(S): APPELLANTS/RESPONDENTS ----------------------------------------------------------------------------- 1. THE PRESIDENT CHOVVA EDUCATIONAL SOCIETY P.O.CHOVVA, KANNUR. 2. THE VICE PRESIDENT CHOVVA EDUCATIONAL SOCIETY OF -- DO- -DO- 3. THE SECRETARY CHOVVA EDUCATIONAL SOCIETY OF - DO- -DO BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE RESPONDENT(S): RESPONDENT/PETITIONER -------------------------------------------------------------- CANNANORE ARAKKAL ADIRAJA SAJIDA BEEBI D/O.HASHIM ELAYA, KANATHUR DESOM, KANNUR - 1. ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE FOR R1 SRI.M.A.ABDUL HAKHIM FOR R1 SRI.K.P.MUJEEB FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R SRI.GEORGE POONTHOTTAM FOR ADDL.R2 SRI.K.V.PAVITHRAN FOR ADDL R SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR ADDL.R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- C.R.P.No.473 of 2001 ------------------------------------ Dated this the 14th day of July, 2010 ORDER The Civil Revision Petition arises out of the proceedings before the Land Tribunal, initiated by the respondent under Section 106 of the Kerala Land Reforms Act, claiming enhancement of rent as provided in Sub Section 1(A) of Section 106. 2. The subject matter of the dispute is about three acres of land with buildings thereon. The Revision Petitioner Society conducts a High School in the buildings. It is submitted that now the School has been upgraded as a Higher Secondary School. The respondent granted a lease of the property and the buildings then in existence to the petitioner Society as per document dated 29.10.1947, on an yearly rent of Rs.400/-. It is stated in the 'Marupattam' dated 29.10.1947 CRP 473/2001 2 that the lease was for a period of twelve years. 3. The respondent filed O.S.No.362 of 1977 on the file of the Munsiff's Court, Kannur against the petitioner for arrears of rent. (Hereinafter the petitioner is referred to as 'the Society' and the respondent as the landlord.) The defendant Society contended that the Society is entitled to fixity of tenure under the Kerala Land Reforms Act and, therefore, the suit is not maintainable. It would appear that the contention was that the Society was a cultivating tenant. Since the question of tenancy was raised, the civil court referred the said question to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal, in its order in O.A.No.232/78 dated 16.4.1979, held as follows: “The rent stipulated therein includes the rent of the buildings leased to the Society. The lease deed is marked as Ext.A1. The Ext.A1 also provided for effecting further improvements, besides construction of CRP 473/2001 3 additional buildings for school purposes. The lease, therefore, comes under the exemptions specified in Section 3(iii) of the Act. The lease is granted for a specific purpose of conducting a High School by the Society. It cannot, therefore, be said to be a lease for cultivation purpose or for effecting improvements of bearing trees. Under these circumstances, I consider that the lease is a commercial lease coming under the provisions of Section 106 of the Act 1/1964.” Based on this finding of the Land Tribunal, the Munsiff's Court decreed O.S.No.362 of 1977. It is also not disputed that in a subsequent suit filed by the landlord as O.S.No.394 of 1983, a decree was passed for arrears of rent on 19.6.1986. 4. The landlord filed O.A.No.14/1987 before the Land Tribunal, Kannur under Section 106 of the Kerala Land Reforms Act for fixation of rent at the rate of Rs.5,000/- per year. On abolition of the Land Tribunal, Kannur, the case was CRP 473/2001 4 transferred to the Land Tribunal, Palakkad, where it was re- numbered as A.No.36 of 1988. The Land Tribunal, passed an order dated 18.8.1989, holding that the application was not maintainable under Section 106 of the Kerala Land Reforms Act. The landlord challenged the order of the Land Tribunal in A.A.No.352 of 1989, on the file of the Appellate Authority (LR), Kannur. As per judgment dated 30.3.1991, the Appellate Authority set aside the order of the Land Tribunal and remanded the case for fresh disposal. The Appellate Authority held that the Land Tribunal did not properly consider the decree passed by the civil court and the order passed by the Land Tribunal on reference in the civil suit. 5. After remand, the Land Tribunal passed the order dated 11.8.1999, allowing the application. The rent was fixed at Rs.2,000/- per month from 20.5.1979 to 19.5.1991 and at the rate of Rs.5,000/- per month from 20.5.1991 onwards. The Society challenged the order of the Land Tribunal in CRP 473/2001 5 appeal as A.A.No.116/1999. The Appellate Authority confirmed the order of the Land Tribunal and dismissed the appeal, by judgment dated 26.7.2000. The said judgment is under challenge in this Revision filed by the Society. 6. Sri.O.V.Radhakrishnan, the learned senior counsel appearing for the Revision Petitioners contended that as per the lease deed, yearly rent was fixed. However, the Land Tribunal fixed monthly rent and it was confirmed by the Appellate Authority. It is submitted that the order of the Land Tribunal and judgment of the Appellate Authority are contrary to the provisions of Section 106 of the Kerala Land Reforms Act. 7. The learned senior counsel appearing for the petitioners also submitted that in the application filed before the Land Tribunal, the landlord had claimed yearly rent at the rate of Rs.5,000/- and therefore, there was no justification for CRP 473/2001 6 the authority to fix rent at higher rates and that too on a monthly basis. The learned senior counsel submits that the order and judgment are absolutely without jurisdiction and they are liable to be set aside exercising the jurisdiction under Section 103 of the Kerala Land Reforms Act. 8. The application was filed by the landlord in the year 1987. In that application, she had claimed enhancement of yearly rent at the rate of Rs.5,000/-. The Land Tribunal appointed a Commissioner. The Commissioner reported that the land in question is located in a very important area in Kannur town and that it has got commercial importance. The Land Tribunal took into account the locality in which the property is situated, its commercial potentials, the rate of rent prevailing in the locality and all other relevant inputs and held that the Society is liable to pay enhancement at the rate of Rs.2,000/- per month for the period from 20.5.1979 to 19.5.1991 and at the rate of Rs.5,000/- per CRP 473/2001 7 month from 20.5.1991 onwards. This amount was fixed taking into account the fact that after fixing the yearly rent in 1947, there was no enhancement of rent at all at any point of time. 9. The lease is a contract between the lessor and the lessee. The terms of the contract are to be agreed upon between the parties to the contract. They agreed to such terms. The yearly rent was thus fixed at Rs.400/-. No monthly rent was fixed. There was no justification for converting payment of rent on an yearly basis into a monthly basis. No such prayer was made by the landlord. There was no consensus by the tenant in respect of that. Therefore, fixing of the enhanced rent on a monthly basis was without jurisdiction. 10. Sri.T.Krishnanunni, the learned senior counsel appearing for the respondent/landlord contended that the CRP 473/2001 8 Revision Petitioner Society is in possession of an extent of about 3 Acres of land in Kannur town and a pittance of rent was being paid to the landlord. Going by the prevailing market rate of the land and also the prevailing rent in the locality, the amount fixed by the Land Tribunal and confirmed by the Appellate Authority is just reasonable. Even if it is to be held that yearly rent is to be fixed, this Court exercising the jurisdiction under Section 103 of the Kerala Land Reforms Act could convert the monthly rent awarded into yearly rent. It is submitted that, conversion into monthly rent by itself is not a ground for upsetting the concurrent findings of the Land Tribunal and the Appellate Authority, particularly when no questions of law arise for consideration. It cannot also be said, the senior counsel submits, that the Land Tribunal and the Appellate Authority did not consider the question of law or erroneously decided the same. 11. It is also pointed out by the learned senior counsel CRP 473/2001 9 for the respondent that an application was filed for amending the amount claimed in the application and the Land Tribunal fixed the rent taking into account the application for amendment. The learned senior counsel also produced for perusal an office copy of the application for amendment of the application. The learned senior counsel appearing for the Revision Petitioners controverted this submission and stated that no such application was filed before the Land Tribunal or before the Appellate Authority and that no order was passed by the authorities allowing such amendment. He also submitted that the Land Tribunal could not fix the rent at the rate far above the rate claimed in the application filed by the landlord. 12. Section 106 of the Kerala Land Reforms Act provides for special provisions relating to lease for commercial or industrial purposes. As per Section 106, protection is given to the lessee from eviction, if he satisfies the requirements of CRP 473/2001 10 Section 106. However, the lessee shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. Sub Section 1(A) of Section 106 is relevant in this context, which reads as follows: “The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-section (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.” 13. Sub Section 1(A) of Section 106 empowers the lessor or the lessee to apply to the authority for varying the rent. That means the rent can be varied taking into account the relevant facts. Sub Section 1(A) mandates that the authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee CRP 473/2001 11 an opportunity of being heard, pass such orders. Nowhere in Section 106, it is made mandatory that the lessor or the lessee should precisely indicate the rent which is claimed as varied rent. It is for the authority to take into account all the relevant facts and circumstances and to arrive at a conclusion as to the rent that is to be enhanced or varied. Even if an application for variation of rent is silent as to the amount claimed by the petitioner therein, it cannot be said that the application is defective. The claim made by the petitioner in the application may not have much relevance in fixing the rent payable by the lessee under Section 106. It is submitted by Sri.O.V.Radhakrishanan that even if it is so, once the landlord makes a specific claim in the application, he cannot thereafter claim a higher amount. As stated earlier, the application was filed in 1987. From 1947 to 1987, there was no variation of rent. The landlord indicated in the application that the yearly rent should be enhanced to Rs.5,000/-. The materials collected by the Commissioner and the evidence adduced in CRP 473/2001 12 the case prompted the Land Tribunal to fix a higher amount as the rent. Too much adherence to the pleadings should be made in matters before the Land Tribunal. Simply because no amount was indicated in the application or a lesser amount was mentioned does not mean that the authority under Section 106 of the Kerala Land Reforms Act would lose its jurisdiction to fix a varied rent higher than the amount claimed in the application. It is to be borne in mind that when the landlord claims a particular amount as the enhanced rent, it does not preclude the authority to fix the enhanced rent at a lesser amount than that claimed by the landlord. Going by the scheme of the provisions in Section 106 of the Kerala Land Reforms Act, I do not think that there is any bar for the authority under Section 106 to fix an enhanced or varied rent other than the amount claimed in the application. 14. Though in the application, the claim was mentioned as Rs.5,000/- per year, the argument note CRP 473/2001 13 submitted before the Appellate Authority would indicate that a larger amount was claimed. It is submitted by the learned senior counsel for the respondent that such claim was made in an application for amendment of the O.A. On perusal of the records of the case, such an application for amendment is not seen. In the peculiar facts and circumstances of the case, I am of the view that the applicant should be allowed to amend the application specifying the amount claimed by her as enhanced rent. 15. Since I have held that fixing of a monthly rent in a case where the parties chose to fix yearly rent was illegal, on the totality of the facts and circumstances of the case, justice demands that the order passed by the Land Tribunal and the judgment passed by the Appellate Authority should be set aside. I do so. The Land Tribunal shall dispose of the matter afresh after allowing the landlord to amend the O.A. The lessee would be entitled to file objections to such claims. The CRP 473/2001 14 Land Tribunal shall allow the parties to adduce additional evidence and to produce additional documents, if any. The Land Tribunal shall dispose of the application, as expeditiously as possible, after taking into account all the relevant aspects under Section 106 of the Kerala Land Reforms Act. The Revision Petition is allowed in the manner indicated above. K.T.SANKARAN, JUDGE csl