A.A. Abdul Rasheed Hajee vs Corporation of Kochi

A.K. Jayasankaran Nambiar, J.—The petitioners in both the writ petitions is the same person. He is conducting business in provisions in two adjacent stalls of the Corporation of Cochin located under the south over bridge in Ernakulam. The two writ petitions have been filed in respect of the said shop rooms. As the issue involved in both the writ petitions is the same they are taken up together for consideration and disposal. For the sake of convenience, the reference to the facts and Exhibits is from WP(C) No. 7685 of 2014 with reference to the corresponding figures and Exhibits in WP(C) No. 7817 of 2014 wherever it is relevant.

As already noted above, the petitioner had taken two shop rooms on rent from the 1st respondent Corporation. Initially, the shop rooms were taken on rent by the petitioner''s brother. Pursuant to an application preferred by the petitioner, the 1st respondent Corporation, by decision dated 17.12.1994, decided to transfer the rooms in the petitioner''s name and fixed the monthly rental @ Rs. 600/-. An agreement was accordingly executed between the petitioner and the 1st respondent Corporation, the terms of which are borne out in Ext. P1 notice that was issued to the petitioner in connection with a demand of rent. It would appear that thereafter, the 1st respondent Corporation unilaterally increased the rent from time to time, without executing revised agreements with the petitioner. Accordingly, the rent was increased by 10% from 01.04.1997 to 31.03.2000 and to 15% from 01.04.2000 to 31.03.2004. By Ext. P2 demand notice issued by the 3rd respondent, the petitioner was asked to remit an amount of Rs. 60,192/- in respect of the shop room covered in W.P. (C). No. 7685 of 2014. In response to the said notice, the petitioner remitted an amount of Rs. 55,000/-. Thereafter, there were further revisions in the rate of rent effected unilaterally by the respondent Corporation. It is stated that for the period 2004-2005, the monthly rent was increased to a figure of Rs. 2,043/- and for the period 2005-2006, the monthly rent was enhanced to Rs. 2,145/-. While the petitioner took objection to the unilateral enhancement of rent by the respondent Corporation, he remitted the differential amounts demanded under protest. When the 3rd respondent issued notices demanding amounts towards the arrears of rent based on the revised rent fixed by them as also an exorbitant amount towards penal interest, the petitioner challenged the said demand, which is Ext. P5 in W.P. (C). No. 7685 of 2014 and Ext. P11 in W.P. (C). No. 7817 of 2014. In the writ petitions that were filed by the petitioner challenging the said demands, interim orders were passed staying the demand made against the petitioner subject to the condition of the petitioner paying Rs. 30,000/- to the respondent Corporation in respect of each of the shop rooms. Thereafter, the writ petitions were disposed by a common judgment dated 26.11.2008, wherein it was found that there cannot be any retrospective revision of rent effected by the respondent Corporation and the rent that is collected from the petitioner could only be on the basis of the agreements executed between the petitioner and the respondent Corporation. The writ petitions were disposed of in terms of the interim order by making it clear that in case there was any dues in terms of the agreements executed between the writ petitioner and the respondent Corporation, the respondent Corporation could recover the same in accordance with law. The judgment of this Court in the aforesaid writ petition has not been reversed or modified in further proceedings, although it is stated that W.A. No. 2236 of 2007 has since been filed by the respondent Corporation impugning the said judgment.

The cause of action for preferring the present writ petitions arose when the respondent Corporation, without executing revised agreements with the petitioner in respect of the shop rooms in question, issued Ext. P17 demand in W.P. (C). No. 7685 of 2014 (Ext. P22 in W.P. (C). No. 7817 of 2014). Although, the petitioner preferred separate replies to the said demand notices pointing out that the respondent Corporation had not executed any separate agreements with the petitioner prior to insisting on a recovery of enhanced amounts of rent from him, the respondent Corporation took steps to dispossess the petitioner from the shop rooms in question. The mahazar prepared in connection with the dispossession is produced as Ext. P19 in W.P. (C). No. 7685 of 2014 (Ext. P24 in W.P. (C). No. 7817 of 2014). The action of the respondent Corporation in taking steps to dispossess the petitioner from the shop rooms in question, is impugned in the present writ petitions.

The respondent Corporation has filed counter affidavits in both the writ petitions. The stand of the respondent Corporation in the counter affidavits is that consequent to the judgment dated 26.11.2008 of this Court in the earlier writ petitions filed by the petitioner, the 1st respondent Corporation had on several occasions intimated the petitioner of the requirement of executing a formal agreement with the respondent Corporation. It is contended that notwithstanding the intimation letter issued to the petitioner, the petitioner did not turn up to execute the said agreement and hence the Corporation was left with no other option than to issue notices seeking the revised rent and arrears thereof from the petitioner. The counter affidavit also furnishes the calculations with regard to the rent arrears due from the petitioner. The demand in Ext. P17 notice in W.P. (C). No. 7685 of 2014 and Ext. P22 notice in W.P. (C). 7814 of 2014 is stated to be only the arrears of revised monthly rent fixed by the respondent Corporation for the period from August 2006 to October 2013, without inclusion of any penal interest.

I have heard the learned Senior Counsel Sri. Sreekumar, appearing on behalf of the petitioner in both the writ petitions and Sri. Nandakumar, appearing on behalf of the respondents in both the writ petitions.

On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find that this is a case where notwithstanding the judgment dated 26.11.2008 of this Court in the earlier round of litigation between the parties, wherein this Court specifically held that it was not open to the 1st respondent Corporation to effect any retrospective revision of the rent and further that the rent demanded from the petitioner could only be based on the agreements executed between the petitioner and the respondent Corporation, the respondent has chosen to demand arrears of rent from the petitioner based on unilateral revisions of monthly rent effected by it. The judgment dated 26.11.2008 of this Court has not been reversed or modified till date. The terms of the said judgment would therefore have to govern the issue of recovery of rent from the petitioner. In this connection, it is relevant to note that as per the original agreement entered into between the petitioner and the respondent Corporation, the monthly rent for the shops in question would be only in an amount of Rs. 600/- and Rs. 726/-, for room numbers 10 and 11 respectively. Even the petitioner does not seriously dispute that reasonable revisions in rent had to be effected from time to time and that it is only the non-execution of the agreement that stood in the way of the respondent Corporation collecting the enhanced rents from the petitioner. The petitioner is presently aggrieved only by the steps taken by the respondent Corporation in adjusting the payments made by him for the period from 2006 onwards, at the rate of Rs. 835/- per month in respect of both the shop rooms, towards alleged penal interest dues that were owing from the petitioner to the respondent Corporation. I am of the view that in the light of the judgment dated 26.11.2008 of this Court, which already pronounced on the inter se rights between the 1st respondent Corporation and the petitioner in the matter of the monthly rent to be paid in respect of the shop rooms in question, the question of collecting any amount towards penal interest from the petitioner would not survive more so when it is the admitted case that no fresh agreement has been executed between the petitioner and the respondent Corporation. At the same time, the petitioner cannot be permitted to pay only the reduced rent of Rs. 835/- per month in respect of the shop rooms in question when the rate of rent in respect of the shop rooms have been revised by the respondent Corporation from time to time to cover the periods from August 2006 to October 2013. Thus, on an overall consideration of the matter and with a view to give a quietus to the dispute between the petitioner and the respondent Corporation, I feel that it would be in the interests of justice to require the petitioner to effect payments of rent in respect of the shop rooms in question, for the period from August 2006 till date, in accordance with the monthly rental amounts fixed by the Corporation for the shops in question from time to time. Consequently, the respondent Corporation shall now compute the rental amounts that are due and payable by the petitioner in respect of the shop rooms in question for the aforesaid period and reduce there from the amounts already paid by the petitioner towards monthly rent, during the pendency of the writ petition, and other amounts paid pursuant to directions issued by this Court. It is made clear that no amount paid by the petitioner shall be adjusted towards alleged penal interest dues computed by the respondent Corporation. The reconciliation of the amounts paid by the petitioner, with the dues to the respondent Corporation in respect of the shop rooms, shall be done without considering the element of penal interest and the differential amount, if any to be demanded from the petitioner, shall be intimated to him through a separate demand notice within a period of one month from the date of receipt of a copy of the judgment. On the petitioner receiving the said demand from the respondent Corporation he shall effect payment of the same within a period of two weeks thereafter. It is submitted by counsel for the petitioner that pursuant to Ext. P19 and P24 mahazers, the petitioner has been dispossessed and by virtue of interim orders of this Court only the re-auction of the shop rooms have been interdicted. Accordingly, I make it clear that if the petitioner effects an immediate payment of Rs. 1 lakh in respect of each of the shop rooms to the Corporation, the same shall be adjusted towards the dues found payable by him to the Corporation and he shall be put back in possession of the shop rooms. Thereafter, on the petitioner effecting the balance payments to be made to the respondent Corporation pursuant to the notices to be served on him, proceedings pursuant to the impugned mahazers namely, Ext. P19 in Writ petition 7685 of 2014 and Ext. P24 in Writ petition 7817 of 2014, shall be dropped by the respondent Corporation. If the petitioner does not effect any of the payments as directed in this judgment, the benefit of the judgment will not enure to him.

The writ petition is disposed as above.