Allowed

V.Ulahannan v. State of Kerala and Others

Kerala HC21 Nov 2016WP(C)/11220/2008

Case brief

AI extract

What is this about?

This judgment declared verbal meeting decisions agreeing to Rs.1 monthly rent binding on the Respondent Authority. Eviction proceedings under the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act were set aside for demanding higher rent based on previous premises.

What did the court decide?

Eviction notices set aside; rent fixed at Rs.1/month per the meeting minutes; enhanced payments treated as adjustments towards future rent.

V.Ulahannan Vs State of Kerala and Others — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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WP(C).No. 11220 of 2008 (I)

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PETITIONER(S):

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V.ULAHANNAN, S/O.VARKEY ,B-20,TRIDA 'B', TEMPORARY SHED, PALAYAM, RESIDING PRESENTLY AT T.C 14/494, MARY BHAVAN, NANDHAVANAM ROAD, VIKAS BHAVAN, THIRUVANANTHAPURAM.

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BY ADVS.SRI.J.HARIKUMAR SRI.HARIKUMAR.S.

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RESPONDENT(S):

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1. STATE OF KERALA , REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA), JAYA MANSION, VAZHUTHACAUD, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY.

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3. THOZHILUDAMA ASSOCIATION, REGISTRATION NO.581/1987, PALAYAM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY.

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4. ESTATE OFFICER,THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA), JAYA MANSION, VAZHUTHACADU, THIRUVANANTHAPURAM.

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R1 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER

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R2 & 4 BY ADV. SRI.K.A.JALEEL, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, ALONG WITH WPC. 11222/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 11220 of 2008 (I)

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APPENDIX

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PETITIONERS' EXHIBITS

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P1: COPY OF MINUTES OF THE MEETING DATED 6/10/2000 CONVENED BY THE R2

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P2: COPY OF LETTER DATED 6//11/2004 FROM THE PETITIONER TO THE R2

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P3: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC.34520/2004 DATED 29/11/04

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P4: COPY OF THE WRITTEN SUBMISSION DATED 14/12/2004 SUBMITTED BY THE PETITIONER TO THE R2

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P5: COPY OF THE AGREEMENT DATED 28/12/2004 SIGNED BY THE PETITIONER AND THE R2

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P6: COPY OF THE LETTER DATED 28/12/2004 SUBMITTED BY THE PETITIONER TO THE R2

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P7: COPY OF THE LETTER DATED 4/1/05 SUBMITTED BY THE PETITIONER TO THE R2

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P8: COPY OF LETTER DATED 16/2/2005 SENT BY THE PETITIONER BY REGISTERED POST TO THE R2

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P9: COPY OF THE WRITTEN SUBMISSION DATED 17/10/2007 MADE BY THE PETITIONER TO THE R2

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P10: COPY OF THE LETTER DATED 29/10/2007 FROM THE R2

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P11: COPY OF THE ORDER OF THE ADJUDICATOR DATED 31/1/2008

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P12: COPY OF THE ORDER OF THE R2 DATED 28/2/2008

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P13: COPY OF THE NOTICE DATED 5/12/2007 FROM THE PETITIONER TO R2

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P14: COPY OF THE NOTICE DATED 19/3/2008 FROM THE R4

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P15: COPY OF THE AGREEMENT DATED 6/10/2004 EXECUTED BY THE R2 AND MR.VISWANATHA PILLAI.

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P16: COPY OF THE AGREEMENT DATED 7/10/2004 EXECUTED BY THE R2 WITH SRI.G.JOSE.

....2/-

..2..

WP(C).No. 11220 of 2008 (I)

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RESPONDENTS' EXHIBITS

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R2(A): COPY OF THE AGREEMENT DATED 1/1/93 EXECUTED BETWEEN THE PETITIONER AND THESE RESPONDENTS

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R2(B): COPY OF THE LETTER DATED 27/12/2004 ISSUED BY THESE RESPONDENTS TO THE PETITIONER.

/ TRUE COPY /

P.S. TO JUDGE

P.V.ASHA, J.

W.P.(C) Nos.11220 & 11222 of 2008

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Dated this the 21^st day of November, 2016

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JUDGMENT

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The petitioners in both these writ petitions challenge the fixation of rent for the shop rooms temporarily allotted to them till their permanent rehabilitation by the TRIDA-Trivandrum Development Authority- which is constituted under the Travacncore Town Planning Act.

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Both the petitioners were running their shops in their own land. Their lands were acquired for the Palayam Urban Development Scheme. Initially the petitioners were allowed to continue in their own buildings even after acquisition, but on payment of rent to TRIDA. There were several shops which were acquired and the TRIDA allowed them to continue in the very same premises on payment of rent to TRIDA as fixed by them. Thereafter TRIDA constructed a building for temporary rehabilitation to which the shop owners had to shift. According to the petitioners, there are no facilities available in the new building of TRIDA whereas they were enjoying all facilities in their own buildings.

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The petitioners submit that a meeting was convened by the Chairman of the TRIDA with the office bearers of the Trivandrum

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W.P.(C) Nos.11220 & 11222 of 2008 :2:

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Merchants council on 6.10.2000, in which various decisions were taken regarding rehabilitation of the merchants, as per Ext.P1. It was decided that temporary rehabilitation would be provided to all shop owners as well as the tenants in Palayam till they were provided with permanent rehabilitation, in the new block as and when the TRIDA completes construction of the same. As per in clause (3) in Ext.P1, it was decided that the shop owners/lessees would be granted temporary rehabilitation in the new block on payment of rent at the rate of Rs.1/- till they were provided permanent rehabilitation. Clause (2) provided that those who were having the shop rooms with an area up to 150 square feet would be given shop rooms having the same extent and the shop owners having 150 and 300 square feet would be granted shop rooms having an extent upto 75% while those who were having above 300 square feet would be given 70% and hotels would be given 50% of the area.

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However by the time they completed the construction of the building for temporary rehabilitation, TRIDA changed their stand in Ext.P1 and demanded higher rate of rent. Challenging the proposal to realise rent at higher rates, petitioners approached this court in WP(C) Nos.34520/2004 and 34381/2004 and by Ext.P3 judgment the writ

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W.P.(C) Nos.11220 & 11222 of 2008 :3:

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petitions were disposed of directing the TRIDA to take a decision on the request of petitioners in their representations. Petitioners' request in those representations were against the rent fixed at the rate of Rs.3/25 per sq.ft in the case of WP(C) No.11220/2008 and Rs.4/51 per squire feet in the case of WP(C) No.11222/2008, requesting to allot the space at the rate of Re.1/ as in the case of the space allotted to several others at the rate of Rs.1/- per sq.ft, implementing the decision in Ext P1. They had filed those writ petitions as soon as they were called for a meeting in order to fix the rent. Even though the TRIDA heard the matter, in tune with the direction of this court, no positive action was taken. The petitioners have produced the written submission submitted before the TRIDA as Exts.P4 (in WP(C) No.11220/2008) and P5 (in WP(C) No.11222/2008).

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While so petitioners had to execute Ext.P5 agreement and similar agreement dated 28.12.2004, under protest since it was threatened that the buildings they were occupying were being demolished. In the case of the petitioner in WP(C) No.11220/2000, shop room No.B20 having an area of 13.2 square meter (142 square feet) was allotted fixing the rent at the rate of Rs.588/- per month with effect from 28.12.2004 till permanent rehabilitation. The

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W.P.(C) Nos.11220 & 11222 of 2008 :4:

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agreement further provided that security deposit remitted as per the agreement dated 1.1.1993 would be retained as such and all the conditions in the said agreement would continue to be in force.

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The petitioners grievance is that even though it was agreed in Ext.P1 that rent would be realised at the rate of Rs.1/- per month only, they were forced to execute the agreement under threat of demolition of their buildings. Petitioners submit that they were not even furnished copies of the agreement since they put their signature in the agreement though under the threat of demolition. They submitted representations before the respondents requesting for copies of the agreements. While the matters were pending so an adjudicator was appointed in respect of the disputes relating to the proceedings for rehabilitation, fixation of rent etc. raised in WP(C) No.4074/2006, in the matter of permanent rehabilitation. Even though the petitioners also approached the adjudicator, in order to appraise their grievances regarding the fixation of rent, the adjudicator ordered that the matters would be considered by the TRIDA, as per Ext.P11 (in WP(C) No.11220/2008) and Ext.P10 (in WP(C) No.11222/2008) including the claim of the petitioners and a decision shall be taken by it. Thereafter Ext.P12 (in WP(C) No.11220/2008) and Ext.P11 (in WP

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W.P.(C) Nos.11220 & 11222 of 2008 :5:

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(C) No.11222/2008) orders were passed by the TRIDA stating that rent was being realised on the basis of the agreement executed between TRIDA and the petitioners. In this letter it was stated that all those who were paying rent below Rs.1/-were to be paid rent at a minimum of Rs.1/-; but in the case of persons who were paying rent above Re.1/- only there occurred an enhancement in rent. Further it was pointed out that the conditions stipulated in the agreement of 1993 was to be in force as per the agreement executed on 28.12.2004 also, according to which there should be periodical enhancement in rent. It was also assured that the petitioners would be granted permanent rehabilitation as and when there was sufficient facility for the same and construction was completed.

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The petitioners thereupon filed Ext.P13 representation dated 5.12.2007 pointing out that the decision of the TRIDA was contrary to the decision taken in Ext.P1 meeting. By Ext.P14 dated 19.3.2008 (in WP(C) No.11220/2008), TRIDA issued show cause notice for evicting the petitioners since arrears of rent was due from the petitioners for the period from April 2007 to March 2008 in the case of the petitioner in WP(C) No.11220/2008 and from February 2002 to March 2008 in the case of the petitioner in WP(C) No.11222/2008. They were asked

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W.P.(C) Nos.11220 & 11222 of 2008 :6:

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to show cause why proceedings for eviction should not be taken under Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968. It was at that stage the petitioners approached this court .

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This court as per interim order dated 21.5.2008 stayed the proceedings for eviction of the petitioners.

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The respondents have filed counter affidavit refuting the contentions and justifying the action in Ext.P12 (in WP(C) No.11220/2008), P11 (in WP(C) No.11220/2008) and Ext.P13. According to them, the petitioners were paying rent for their shops which were acquired at the rate of Rs.4.14 per square feet in the case of the petitioner in WP(C) No.11220/2008 and Rs.4.51 per sq.ft. in the case of the petitioner in WP(C) No.11222/2008. At the same time in the case of those in whose case rent is fixed at Re.1/- were paying rent at the rate less than Re.1/- and it is only in the case of those who were paying rent above Re.1/- that enhancement was effected. More over, it is stated that as per the agreement executed on 1.1.1993 the petitioners were liable to pay rent as fixed therein and there was a provision for increasing rent at the rate of 10% every year. Since the petitioners were paying rent at the rate of Rs.4.4/-, their rent was fixed accordingly in the newly constructed building for which they had

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W.P.(C) Nos.11220 & 11222 of 2008 :7:

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to spend Rs.40 lakhs.

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However it is admitted that the facilities in the building where rehabilitation is provided are the same in the case of all the tenants irrespective of the rent or the area occupied. The petitioners are aggrieved by the discrimination meted out to them only on the ground that they have been paying rent at the higher rate before they were shifted to the new building. They are also aggrieved by the rate of rent fixed as well as the demand for enhancement at the rate of 10% every year.

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I heard the learned counsel for the petitioners as well as the learned counsel for the TRIDA.

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The learned counsel for the petitioners made available a copy of the judgment dated 30.3.2006 in WP(C) No.4074/2006, which was filed by 36 shop owners and the thozhiludama association, who is the 3^rd respondent in this case, of which the petitioners are members. Government and TRIDA were the respondents in that case. In paragraph 29 of the said judgment this court held as follows:

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“In such circumstances, petitioners have, a right to compel TRIDA, as an authority under Article 12 of the Constitution of India to act reasonably or at least in accordance with its own decision, as reflected in Ext.P7. But, I make it clear that when I say this, I am not visualising Ext.P7 or clause No.14 therein, as a term of a contract. Yet it is evident from clause 14 of Ext.P7 that TRIDA had intended to take into account PWD norms, while fixing rate of rent. It also appears from

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W.P.(C) Nos.11220 & 11222 of 2008 :8:

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Ext.P7 that TRIDA proposed to act fairly, on “no loss no profit” basis, while letting out the building or selling the building at the time of permanent rehabilitation of the tenants and accommodating them in the new building. Even without an agreement to such an effect, I have no doubt, this must be the standard which must be followed by an authority like TRIDA. The TRIDA was indeed, adopting such a fair stand also, as per Ext.P7”.

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From the judgment it is seen that Ext.P7 is the very same minutes dated 6.10.2000, which is produced as Ext.P1 in these writ petitions. However, this court was considering the scope of clause 14 in Ext.P1 while the petitioners herein claimed the benefit of clause 3 in Ext.P1. In the light of the findings and observations in the said judgment the petitioners claim that the 2^nd respondent has to act in tune with the assurance and the decisions in Ext.P1 while letting out the building and fixing the rate of rent. Under the above circumstances, the claim of the petitioners is that despite the decision in Ext.P1 as per which the rent was to be fixed at the rate of Rs.1/alone, the petitioners were compelled to execute agreements as contained in Ext.P7 at a higher rate in a highly arbitrary and unreasonable manner. As a result of this compulsion, there are two sets of tenants under TRIDA enjoying the very same facilities by paying rent at different rates. The basis for fixing the rate of rent is the rent which was being paid by them before they were shifted to the new buildings irrespective of the area of that building or the facilities

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W.P.(C) Nos.11220 & 11222 of 2008

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:9:

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which were available there. According to the petitioners, they do not have any of the facilities which they had been enjoying in their own shop rooms till their shifting to the buildings on temporary rehabilitation while they are compelled to pay higher rate of rent with lesser and meagre facilities. In these circumstances they are seeking implementation of Ext.P1 while challenging the proceedings for realisation of rent at the rate of Rs.588/- and enhancement of the same every year. Ext.P1 did not provide for any revision of rent till the permanent rehabilitation is provided.

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The respondents have a case that it is only the two petitioners who object the rate of rent fixed or complains the facilities provided in the premises and they are justified in seeking higher rent proportionate to the rent they were paying before the rehabilitation.

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In the light of the findings in paragraph 29 of the judgment in WP(C) No.4074/2004, which is reproduced above in respect of clause 14 of Ext.P1 minutes, clause 3 of Ext.P1 also can be considered only as a conscious decision taken by the 2^nd respondent in the presence of the third respondent. That decision was to let out the buildings for temporary rehabilitation on rent at the rate of Rs.1/without imposing any further conditions. The 2^nd respondent is a State

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W.P.(C) Nos.11220 & 11222 of 2008 :10:

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within the meaning of Article 12 of the Constitution of India. It is not expected to act like an ordinary landlord, especially when Ext.P1 decision overtaken. Therefore the action of the second respondent in fixing rent contrary to that decision is unreasonable and cannot be expected from an authority like 2^nd respondent. Therefore, the demand for realisation of rent at enhanced rates contrary to the decision in Ext.P1 and the initiation of coercive proceedings for realisation of rent from the petitioners under the guise of an agreement which the respondents got signed from the petitioners under threat of demolition of their buildings are unsustainable. As pointed out by the learned counsel for the petitioners, there is no justification for realising different rent for similar tenants. The basis for fixing the rent in the case of the petitioners can only be said to be unreasonable. Ext.P1 does not refer to fixation of rent on the basis of the rate of rent which was being paid for another building before rehabilitation.

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Even though the respondents have stated that 21 out of the 50 persons have been rehabilitated in the building at higher rates of rent as in the case of petitioners, no material is produced in support of their claim which the petitioners dispute. Therefore, the attempt of the

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W.P.(C) Nos.11220 & 11222 of 2008 :11:

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respondents to justify the enhanced rate of rent in the case of the petitioners, while providing the building to at least 23 of them at the rate of Rs.1/- cannot be accepted. Even otherwise, there is no rhyme or reason in realising rent at different rates on the ground that persons like petitioners were paying higher rent for different building.

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A statutory body like TRIDA cannot compel persons like petitioners to execute agreements containing provisions for payment of rent unilaterally fixed and start coercive proceedings against them. They cannot also be heard to justify fixation of rent on the basis of rent which was being paid for another building irrespective of the facilities provided and also to realise rent at different rates for similar rooms with similar facilities.

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Rent can only be with reference to the nature of the building, its area, facilities provided etc. The tenants cannot be differentiated on the basis of the paying capacity or the rent which a person was paying for another building. Letting out shop rooms with identical facilities at different rates and fixing of rent merely on the basis of the rent that was being realised for the acquired building is discriminatory and arbitrary. The rent a tenant had been paying earlier even if it was under the same landlord, cannot be the sole criteria for

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W.P.(C) Nos.11220 & 11222 of 2008

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:12:

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fixing rent. Such action of the statutory authorities like TRIDA amounts to gross violation of the fundamental right of petitioners for equality before law and equal protection of law guaranteed to them under Article 14 of the Constitution of India.

¶94

In the above circumstances Ext.P14 in both writ petitions are set aside. The realisation of rent at the rate above Rs.1/- from the petitioners is illegal. The petitioners shall be allowed to pay rent in terms of clause (3) in Ext.P1. As the petitioners have already paid rent, under protest, in terms of Ext.P6 in WP(C) No.11220/2008 and in terms of Ext.P5 in WP(C) No.11222/2008, the amount paid in terms of Exts.P5 and P6 shall be adjusted towards future rent.

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Accordingly the writ petitions are allowed.

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Sd/- P.V.ASHA JUDGE

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rkc

V.Ulahannan v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

V.Ulahannan v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

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