Allowed

K.P.Fakrudeen, v. the Commissioner

Madras HC8 Jan 2014WP/163/2012

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging a demand for rental arrears and rent enhancement. It set aside the impugned notice due to a lack of arrears and increased the prevailing rent to Rs. 2,354 per month including service tax, directing respondents to credit an interim payment made by the petitioner.

What did the court decide?

The impugned order dated 28.12.2011 was set aside. The petitioner is directed to pay rent at Rs. 2,354/- per month. Credit of Rs. 10,000 paid under interim order to be given.

K.P.Fakrudeen, Vs the Commissioner — Landlord and Tenant | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 12.06.2017

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CORAM :

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The Hon'ble Mr.JUSTICE M.SUNDAR

W.P. No.163 of 2012

and

M.P.No.1 of 2012

K.P.Fakrudeen

.. Petitioner

Vs.

1.The Commissioner,

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Chennai City Municipal corporation, Ripon Buildings,

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Chennai-600 003.

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2.The District Revenue Officer, Land & Estate, Corporation of Chennai, Chennai-600 003.

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3.The Assistant Revenue Officer, Shopping Complex, Land & Estate, Corporation of Chennai.

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.. Respondents

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Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorarified Mandamus, calling for the records of the third respondent in L & E Department Na.Ka.No.LE2/Spl/2005 dated 28.12.2011 and to quash the same and to direct the respondents to receive the existing rent of Rs.1155/- per month from the petitioner for shop No.14.

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For Petitioner : Mrs.R.Meenal For Respondents : Mr.P.V.Selvakumar

ORDER

With the consent of the learned counsel appearing for the parties, the

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writ petition itself is taken up for disposal.

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2 Subject matter of the writ petition is a small commercial shop, being Shop No.14 in a shopping complex in Brewary Road (Project III), Shenoy Nagar, Chennai.

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3 It is admitted that the writ petitioner is a lessee / tenant under the Madras Corporation (now Chennai Corporation) in respect of the above said shop No.14, which is hereinafter referred to as “demised shop” for the sake of convenience and clarity.

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4 It is the case of the writ petitioner that he was inducted as a lessee of the demised shop in and by a lease deed dated 22.7.1998 and the rent at that point of time was Rs.1,155/- per month.

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5 It is also not in dispute that the demised shop admeasures 100

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sq. ft.

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6 It is the case of the writ petitioner that he has been paying rents regularly every month without default and that to his shock and surprise, he was slapped with a notice dated 28.12.2011 bearing reference No.Ni.Ma.Oo.Thu.Na.Ka.No.L-E2/Spl/2005 (hereinafter referred to as 'impugned notice' for the sake of convenience and clarity). In and by the impugned notice, the respondent Chennai Corporation demanded a sum of Rs.50,208/- from the writ petitioner towards the alleged rental arrears.

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7 It is the case of the writ petitioner that he was never put on notice about any enhancement of rent.

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8 Under the above said circumstances, the writ petitioner approached this Court. This Court passed an interim order dated 4.1.2012 to the effect that there shall be an order of interim stay of all further proceedings pursuant to the impugned notice on the writ petitioner paying a sum of Rs.10,000/- to the third respondent. It is not in dispute before me that the writ petitioner has also duly paid the said sum of Rs.10,000/- to the third respondent well before the date stipulated by this Court, i.e., before 19.1.2012. The interim order is now operating.

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9 The only question that arises for consideration is whether the writ petitioner was put on notice about the enhancement of the rent?

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10 Today, the respondent Chennai Corporation has filed a counter affidavit dated 27.4.2017. Obviously, the writ petitioner has not been put on notice as the averments of the Chennai Corporation in the counter affidavit 27.4.2017 are silent on this aspect.

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11 However, the Corporation would contend that there is a provision for periodical enhancement of rent at the rate of 10% once in three years and that is what is being claimed.

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12 From the counter affidavit, it is clear that there is nothing to show that the Chennai Corporation has demanded periodic enhancement of rent once in three years.

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13 On this aspect of the matter, Mrs.R.Meenal, learned counsel for the writ petitioner has placed reliance on one judgment of this Court, being P.S.Raghavachari Vs. The Special Officer, Corporation of Madras and others [1996-1-L.W. 402 ], for the principle that arrears of rent cannot be claimed after the limitation period of three years.

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14 This Court also in the said judgment, making specific reference to Section 390-A of the Madras City Municipal Corporation Act, 1919, has held that the Chennai Corporation may not have right to do so.

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15 Be that as it may, I have heard Mr.P.V.Selvakumar, learned Standing Counsel for the Corporation.

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16 In the light of the stand taken by the learned Standing Counsel for the Chennai Corporation, it may not be necessary to go into the aspect of limitation. The Chennai Corporation would now submit that the present enhanced rent is Rs.2,047/- per month + service tax at the rate of 15% (Rs.307/-), which adds to Rs.2,354/- per month.

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17 It is also the further stand of the Chennai Corporation that the writ petitioner has paid the rent upto 30^th April, 2017 without any arrears. In other words, it is the case of the Chennai Corporation that the writ petitioner has paid even the enhanced rent upto 30^th April, 2017.

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18 It is submitted by the learned Standing Counsel that the rent for

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the month of May, 2017 only remains to be paid now.

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19 The submissions of the learned Standing Counsel, which are made on instructions, are recorded.

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20 Therefore, the impugned order dated 28.12.2011 bearing reference Ni.Ma.Oo.Thu.Na.Ka.No.LE2/Spl/2005 is liable to be set aside as there is no arrears and is, accordingly, set aside.

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21 More over, it is to be noted that the writ petitioner has paid a sum of Rs.10,000/- pursuant to the interim order of this Court. It is not clear if credit is given for the same. If it has not been given, the respondent Chennai Corporation shall give credit for the same in future rents to be paid.

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22 Therefore, the obtaining position now is that the prevailing rent is Rs.2,354/- (Rs.2047/- + service Tax at the rate of 15% - Rs.307/-) per month and the writ petitioner will continue to pay the rent at this rate until further enhancement, if any. The writ petition is allowed on the above terms. Considering the nature of the matter, the parties are left to bear their respective costs. Consequently, connected miscellaneous petition is closed.

12.06.2017

Index : Yes/No

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1.The Commissioner, Chennai City Municipal corporation, Ripon Buildings, Chennai-600 003. 2.The District Revenue Officer,

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Land & Estate, Corporation of Chennai, Chennai-600 003.

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3.The Assistant Revenue Officer, Shopping Complex, Land & Estate, Corporation of Chennai Chennai-600 003.

M.Sundar, J.

vvk

W.P.No.163 of 2012

12.06.2017

http://www.judis.nic.in

K.P.Fakrudeen, v. the Commissioner

Case brief

What is this about?

What did the court decide?

K.P.Fakrudeen, v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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