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NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

LAND LAWS

PROJECT ON

RIGHT TO BUILDING AS IMMOVABLE PROPERTY

SUBMITTED BY
ATUL NARAYAN
ROLL NO. 845
SEMESTER VII

Contents
Introduction......................................................................................................................................3
Discussion........................................................................................................................................3
The dissociation between building and land property rights.......................................................3
Leasehold and building rights......................................................................................................5
Leasehold..................................................................................................................................5
Building rights..........................................................................................................................6
The Kerala Building (Lease and Rent Control Act), 1965...........................................................6
Scheme of Rent Control...........................................................................................................7
Rights of a Tenant...................................................................................................................11
Determination of Rent............................................................................................................14
Increase of rent.......................................................................................................................16
Bibliography..................................................................................................................................17

Introduction
Landed property has traditionally, been limited by the right of accession that gives the owner of
the land full ownership of every construction made above and below the ground.
The dissociation between building and land property rights is essential to free land planning and
design from the legal nature of land, by allowing planners and the government to distribute built
space according to their best judgment of an areas good design, and not according to the limits
imposed by the actual designs of privately-owned land spaces.
It is with this jurisprudential principle of disassociation, in order to protect individual rights that
Rent Control Acts have been implemented by the State Governments. The Rent Control Act is a
self-contained statute and the rights and liabilities of the landlord and tenant are to be governed
by its provisions1, and is only applicable if there is such a relationship as the landlord and tenant.
Thus it consolidates the law relating to the property rental and eviction of tenant for
encouraging fair return on the investment by landlords and preventing undue harassment of
tenants. Rent control act typically applies to rental premises that are let for the purpose of
residence, education, business, trade or storage. The Kerala Buildings (Lease and Rent control)
Act, 1965 is the state specific legislation as regards the same for the state of Kerala, a brief
position of major rights contained within, shall be dealt with in the discussive body of the project

Discussion
The dissociation between building and land property rights
The problem of the legal nature of the ius aedificandi (The power to build), consists in the
following: does the right to build constitute a private faculty, inherent to the right of private
ownership of the land, or does it, in contrast, correspond to a public subjective right attributed by
the public authorities? There are two principal theses concerning this problem.
The first thesis, known as the private law thesis, considers that the right to build is of private
nature, i.e., is a faculty inherent to the right to private ownership of the land.
1 Joy v. Stephen Jacob, 1984 KHC 66

Supporters of this thesis, notwithstanding the fact that they recognise that the owner may not
build on his/her own plot of land without previously obtaining a construction permit from the
local authority, consider that this permit does not interfere with the essence of the property right
itself.
From this perspective, the need for a permit only constitutes a limit upon the exercise of private
property rights, which nonetheless remain intact in terms of their content. In the same manner,
the provisions of urban plans that impose prohibitions, limitations or constraints on urban
construction are understood as mere ties or restrictions imposed for reasons of public interest
upon the exercise of private property rights.
However, by virtue of the elasticity that is characteristic to all rights in rem, as soon as such ties
or restrictions disappear due to cessation of the urban plans validity period or concession of a
permit, the owner reassumes exercise of his/her rights in full and with a faculty to build within
his/her land.
The second thesis, known as the public law thesis, considers that the right to build has public
nature: it is a public subjective right separate from private property .
Supporters of this thesis, notwithstanding the fact that they recognise that historically the ius
edificandi began as a faculty integrated within the content of private ownership of land,
consider that legislative development has progressively autonomised this right to the point where
it has become completely separate from private property, thus transforming it into a public
subjective right, which respective attribution (at least to a large extent) depends on a
discretionary decision of the Public Administration.
This viewpoint is based on the assumption that the owner only has the right to build on his/her
land if two prerequisites have been satisfied, namely that such construction is permitted by the
urban plan and that the local authority grants a construction permit to him/her. From this
perspective, the urban plan constitutes an instrument which shapes the very content of the private
property right. The right to build is thus created as a result of the approval of the urban plan or, in
the absence of such a plan, through the concession of an allotment permit or building permit.2
2 Building rights as property rights, Claudio Monteiro, Symposium on Law and
Property Rights Warsaw, 2008

Naturally, it is easier for the private law thesis to recognise that the owner of these lands has the
faculty of freely negotiating his/ her rights, given that this faculty is based on the assumption that
the owner benefits from the full power of disposal of that which pertains to him/her. However,
this thesis also tends to emphasise the nature of the right to build as a right in rem, and
consequently a closer tie between ownership of the land and the faculty to build on it.
In contrast, the public law thesis, based on the autonomy of the right to build in relation to
private property rights, views the dissociation between the two rights with greater ease.
Moreover, the public law thesis assigns to the local authority the power to regulate urban land
use, thereby constraining the freedom that owners require in order to freely negotiate the
respective development rights between themselves. From the perspective of the public law thesis,
the private land owner may only build that which the plan or other acts issued by the local
authority permit him/her to build, as a result of which he/she gains nothing in adding
construction volume to the building potential that the plan recognises for his/her plot of land.
It is under this body of views that Leasehold and building rights receive differential validity.

Leasehold and building rights


Leasehold and building rights are both so-called limited property rights derived from the nature
of buildings as immovable property. Thus, automatically these rights are always based on or
related to immovable property.
Leasehold
The leasehold gives the leaseholder a right of use of a property. In principle, according to the
law, this is the same use that an owner of a property would have. However, in the deed with
which the rights of the leaseholder are vested, these rights are often limited. Therefore the
leaseholder rarely seems to avail of the same rights as the owner.
Discussions about the nature and extent of the use of the leaseholder and the legal nature of the
terms agreed in the framework of the lease are often typical in property disputes. If long term
lease of property exists, both pending and new, we can inform you of the rights and obligations
of the leaseholder, the limitation of the use and the meaning and impact of stipulations in the
deed with which the lease is vested.

Building rights
An important principle in ownership of immovable property is that the owner of the land is also
the owner of the buildings and works that are (permanently) connected to that land. An exception
to this rule is the building right, where the recipient owns or acquires the property of buildings /
works on or above anothers immovable property.
When the leaseholder has a right of use of the entire property, the superficiary in principle only
has a title to the buildings and works. There may be practical reasons to establish a right to build,
for example with multi-level buildings where the rooms and floors are used in different ways.
It is in light of this jurisprudential position that The Kerala Building (Lease and Rent Control
Act), 1965 was enacted based on a central directive towards the same. The same act and the
major rights it promulgates and protects are discussed below:

The Kerala Building (Lease and Rent Control Act), 1965


The Act was enacted in 1965 to regulate the leasing of building and to control the rent of such
buildings. The application of the Act is confined to areas specified in the Act. Its application to
other areas is to be made only if it is supported by a resolution passed by the local authority. 3 The
court observed that if the legislature wanted to take the local authorities to confidence and assign
them a role in deciding whether the Act should be made applicable to any area it is legislative
policy which cannot be called in question unless it is unconstitutional or illegal.
The main objects of the Act are a direct exclamation to the protection through distinction of
building and property rights and the same has been interpreted into the scope of the legislation.
In Standard Cashew Industries v. Krishnan4, the court has held that the main objects of the Act
are the following:
1) To regulate the letting of buildings
2) To prevent unreasonable eviction of tenants from buildings
3) To control the rent of let out buildings
3 S.1(3), Kerala Buildings(Rent and Lease Control) Act, 1955.
4 1980 KLT 897, AIR 1981 KER 24

Thus the objects are a clear indicator to the above position, and potentially stands guard over the
derived rights as well as inherent rights, not just from the ownership perspective of the land but
the tenancy and leasehold perspective of the building.
Now, the word building, for the purpose of the act, means any building or hut or part of a
building or hut let, or to be let separately for residential or non-residential purpose and includes:
a) The garden, grounds, wells, tanks, and structures, if any appurtenant to such building, or
part of building or hut and let or to be let along with such building or hut
b) Any furniture supplied by the landlord for use in such building or hut or part of a building
or hut but does not include a room in a hotel or boarding house
c) Any fittings or machinery belonging to the landlord affixed to or installed in such
building or part of such building and intended to be used by the tenant for or in
connection witht the purpose for which or part of such building is let or to be let
The word building in the Act thus includes building huts and furniture and fittings. This Act does
not include a room in hotel or broadening house. A factory with fittings and machinery adapted
for running the business falls squarely within the definition of word Building. The fittings or the
machinery are not for the beneficial enjoyment of the tenant but they are for the very purpose
which the building is let. They form an integral and indivisible part of the subject matter of the
lease.5 Once structure is destroyed completely, the tenant cannot be allowed to put up
constructions and enjoy the same.
Scheme of Rent Control
The government may by notification appoint a person who is or is qualified to be appointed a
Munsiff to be the Rent Control Court for the areas specified therein.6 The Government may by
notification in the Gazette appoint any officer not below the rank of a Tahsildar to be the
Accommodation Controller for any area.7 Every landlord may within 15 days after construction
5 M/s Standard Cashews Industries v. N. Krishnan, AIR 1981 Ker 24.
6 S.3(1) of the Act, Kerala Building(lease and rent control), Act 1955.
7 S.3(2) of the Act, Kerala Building(lease and rent control), Act 1955.

or reconstruction of the building intended to be let out or after a building became vacant by his
ceasing to occupy it or by termination of a tenancy or by release from requisition by the
government or any other authority giving notice of the availability of vacancy in writing to the
Accommodation Controller. Similarly every tenant shall within 15 days of his vacating a
building occupied by him, give notice of in writing to the Accommodation Controller.8
If the tenant of a building puts another person in occupation thereof and does not reoccupy
within period of 3 months, then on the expiry of such period, the tenancy shall be deemed to
have terminated and it shall be the duty of the tenant to give notice thereof in writing to the
Accommodation Controller within 15 days of such termination. If the landlord is aware of
termination he shall also give notice of it to the Accommodation Controller within the same time
limit.9
The tenant may, before the expiry of three months, apply to the Accommodation Controller to
reoccupy the building within a period of 6 months and if such permission is granted tenancy may
continue.10 If the Accommodation Controller does not intimate the landlord within 15 days of the
receipt of the notice that the building is required for the purpose of the State or Central
government, any local authority, or public institution, the landlord shall be at liberty to let the
building to any tenant or to occupy it himself.11 The landlord shall not let the building or occupy
it himself before the expiry of the period of 15 days of the notice given to the Accommodation
Controller unless intimation is received from the authorities that the building is not required for
the purpose of occupation by any officer of government/ local authority or such other officers as
may be prescribed.12
If the building is required for the purpose of state/ Central Government or any local authority or
any public institution or for the occupation by any officer, the landlord shall deliver possession of
8 Section 4(1) (a) , Kerala Building(lease and rent control), Act 1955.
9 S. 4(2) , Kerala Building(lease and rent control), Act 1955.
10 Proviso to S. 4(2), Kerala Building(lease and rent control), Act 1955.
11 Sec. 4(3), Kerala Building(lease and rent control), Act 1955.
12 Sec. 4(4), Kerala Building(lease and rent control), Act 1955.

the building to the Accommodation Controller and the government, local authority or public
institution or the officer shall be deemed to be the tenant with effect from the date on which the
Accommodation Controller received the notice.13
In such cases the rent payable shall be fair rent fixed for the building and if no fair rent has been
fixed, such fair as may be determined under the Act.14 A building used as a residential building
shall not be used as a non-residential building or vice-versa unless the Accommodation
Controller grants permission.15 No structural alteration shall be made in the building unless the
consent of the landlord is obtained.16
Where a landlord has two or more residential buildings in the same city, town or village, the
landlord may choose one of them for his own occupation and shall give notice to the
Accommodation Controller specifying the building so chosen and the other buildings not so
chosen.17 When giving notice the landlord shall specify whether any building other than the one
chosen by him has been continuously in the occupation by any member of his family. 18 if he is
satisfied that the building is required by any member of the family of the landlord bona fide for
such occupation, make an order permitting the landlord to allow such member to occupy the
building, and if the Accommodation Controller is not so satisfied he shall make an order refusing
such permission. Any landlord who is aggrieved by any order passed by the Accommodation
Controller may, within fifteen days from the date of the receipt of such order, prefer an appeal in
writing to the District Collector within whose jurisdiction the building in respect of which the
order appealed against is situated and he shall pass such orders on the appeal as he may think fit.
13 Sec. 4(5), Kerala Building(lease and rent control), Act 1955.
14 First proviso under S.l 4(5), Kerala Building(lease and rent control), Act 1955.
15 Second proviso under S.4(5), Kerala Building(lease and rent control), Act 1955.
16 Third proviso under S.4(5), Kerala Building(lease and rent control), Act 1955.
17 Sec. 4(6)(a), Kerala Building(lease and rent control), Act 1955.
18 Sec. 4(6)(b), Kerala Building(lease and rent control), Act 1955.

The Accommodation Controller shall allot the building vested in him under sub-section (5) or
sub- section (6) to persons mentioned in sub section (3) according to the rules and priorities
prescribed by the government. Any officer empowered by the Government may dispossess any
landlord, tenant, or other person occupying any building in contravention of these provisions, or
any landlord who fails to deliver possession of any building required for occupation by any
State/central government, local authority. Similarly any officer empowered may summarily
dispossess any person, officer, local authority or public institution, continuing to occupy or
failing to deliver possession of any building after termination of his license.

19

If free access to the building is not afforded to the officer empowered under CL (a) he may,
between 6 a. m. and 6 p. m. after giving reasonable warning and facility to withdraw to any
woman not appearing in public according to the customs of the country remove or open any lock
or bolt or break open any door or do any other act necessary for effecting such dispossession. 20
Any landlord, tenant or other person or any officer, local authority or public institution, liable to
be summarily dispossessed under CL (a) shall pay to the Government- (i) The fair rent payable
for the building under the provisions of the Act for the period of his or its occupation or
possession thereof as described in that CL; and (ii) The expenses, if any, incurred by the
Government in effecting such summary dispossession, as determined by them, which
determination shall be final. Nothing contained in this section shall apply - a. To any building of
which the rent does not, or where the rent has not been fixed, the fair rent would not, when fixed,
exceed fifteen rupees per mensem; or b. To any building or buildings owned by any company,
association, or firm, whether incorporated or not and bona fide intended solely for the occupation
of its officers, servants or agents and situated in the same city, town or village. 21
Duties and powers of the Accommodation Controllers

To act upon the notice of vacancy under Section 4


To intimate the landlord that the building is required for the purpose allotment to the
applicants. (in the order prescribed by the rules).

19 Sec. 4(7)(a)(ii), Kerala Building(lease and rent control), Act 1955.


20 Sec. 4(7)(b), Kerala Buildings(Rent and Lease Control) Act, 1955.
21 Sec. 4(7)(c), Kerala Buildings(Rent and Lease Control) Act, 1955.

To entertain the claim of requirement of the building under Section 4(6)(6)(ii) of the Act.
To allot the building vested in him under Section 4(5) and 4(6) of the Act to the person

mentioned in Section 4(3) of the Act.


The Accommodation Controller is vested with power to dispossess the occupants of the

buildings vested in him under Section 4(5) and 6 of the Act.


To decide in the matter of withholding of cutting of amenities by the landlord, under

Section 13 of the Act.


For affecting necessary repairs after notice to the landlord and for adjusting the amount.
So spend towards rent.

To give permission to the tenants for conversion of the building as provided in Section 17 of the
Act.
Rule 3 of the Kerala buildings (lease and Rent Control Rules 1979 provides procedure to be
followed with regard to notice of vacancy while considering the issue as contemplated under
section with regard to the permission to the landlord or his dependent to occupy the building
bonafide use, he shall follow the procedure laid down by Rule 13 of said rules. In cases falling
under Section 4 he may follow the procedure prescribed under Rule 20.
Rights of a Tenant
A. Right to fair rent

The tenant is liable to pay only the fair rent. The fair rent shall be determined by the Rent
Control Court on application made by the tenant or the landlord as the case may be. Though the
provisions concerning fair rent have been declared unconstitutional by the court as violative of
the right to business of the landlord under Article 19 (1) (g) of the Constitution , the same has not
been taken away in principle and the rent fixed by the landlord shall not by unreasonable.
B. Right against arbitrary eviction

1. The tenant shall not be evicted except under the grounds mentioned in S. 11 of the Act.
2. Any order of eviction on the ground of arrears of rent shall not be executed except after the
expiry of one month from the order. The court shall vacate the order if the tenant deposits the
arrears of rent with the cost of proceedings within the said period. In Ouseph Mathai v. Abdul

Khadir22, the Supreme Court held that the order under S. 11 (2) becomes final on the expiry of
the time granted for deposit of arrears of rent by the courts; the grant of stay does not amount to
automatic extension of the statutory protection.
3. Where landlord seeks to evict the tenant on the ground of bona fide need for his own
occupation of the family members, the Court shall not give a direction to the tenant to put the
landlord in possession, if the livelihood of the tenant is solely dependent on the income derived
from any trade or business carried on in that building and there is no other suitable available in
the locality. However, the protection son granted is limited to the tenants who are natural persons
or group of persons in contrast to legal entities like companies and statutory bodies. In other
words, his livelihood can have reference only to natural persons and not to inanimate lifeless
legal entities like cooperative societies. A doctor running a nursing home is carrying on a
business within the meaning of trade or business.
4. Where tenancy is for an agreed period, the landlord shall not be entitled to tender an
application for eviction to the Rent Control Court before the expiry of such period.
5. No tenant shall be evicted on the ground of additional accommodation for personal use of the
landlord where the hardship of the tenant outweighs the advantages of the landlord.
6. Where a tenant is evicted on the ground of bonafide need for reconstruction, and having
evicted the tenant, the landlord willfully neglected to reconstruction the building within such
time fixed or extended by the Rent Control Court, the Court may impose a fine of Rs. 500/-.
Upon failure of the landlord, the court may issue further directions regarding the reconstruction
and may even put back the tenant in possession in appropriate cases or award the evicted tenant
damages equivalent to the excess rent he has to pay for another building that he is occupying in
consequence of the eviction.
The tenant so evicted shall have the first option to have the reconstructed building allotted to him
with the liability to pay the fair rent. The wide powers under the proviso to S. 11 (4) (iv) include

22 AIR 2002 SC 110

the powers even to permit the affected tenant, in appropriate cases to carry out the reconstruction
if the landlord persists his unreasonable refusal to complete reconstruction.
C. Special Protection to identified tenants

The Act envisages special protection to certain identified tenants based on the nature of
employment or profession.
(a) No order of eviction shall be passed against a tenant who is engaged in any employment or
any class of employment notified by the Government as an essential service unless the landlord
is himself engaged in any employment or class of employment which has been so notified and
the landlord requires the building for his own occupation. It has been rightly held by K.K.
Mathew, J. in Balan v. Gopalan Nair that a notification issued by the Government of Kerala
declaring that the following tenants shall be deemed to be engaged in essential service for the
purposes of the said section is not violative of the Constitution, and therefore valid.
(b) No order of eviction shall be passed in respect of any building which has been let for use as a
recognized educational institution. However, no such protection can be thereby claimed where
the institution in which the courses are conducted is unrecognized even if certain courses were
recognized.
No tenant who has been in continuous occupation of a building from April 1, 1940 shall be
evicted for bona fide occupation of the landlord or for occupation of any of the occupation by
any member of his family dependent on him. However, this protection is not granted,
(a) where the landlord has been living in a place outside the city, town or village in which the
building is situated for a period of not less than five years before he makes an application to the
Rent Control Court for being put in possession of the building, and
(b) Requires the building bona fide for his own permanent residence or for the permanent
residence of any member of his family or
(c) the landlord is in dire need of a place for residence and has none of his own.

D. Right of restoration

Where an eviction was effected by the landlord for his own use, the tenant can seek a restoration
of possession,
(a) If the landlord does not occupy it without reasonable cause within one month of the date of
obtaining possession, or
(b) Having so occupied it, vacates it without reasonable cause within six months of such date.
But when the tenant fails without reasonable cause to make an application for restoration of
possession within one month since the right accrued, then the procedure under S.4 relating to
notice of vacancy to the Accommodation Controller shall apply.
E. Right not to be interfered with the amenities

The tenant has a right to not to be interfered with the amenities enjoyed by him. If any landlord
cut off or withhold the amenities enjoyed by the tenant with a view to compel him to vacate the
building or to pay an enhanced rent or without just and reasonable cause, to the satisfaction of
the Accommodation Controller, the Accommodation Controller may pass such orders directing
the landlord to restore the amenities and to pay compensation not exceeding Rs. 50/-. The
provision concerning compensation requires revision.
F. Right to periodical maintenance

It shall be the duty of the landlord to attend to the periodical maintenance and necessary repairs
of the building. If the landlord fails to attend to such maintenance or repairs to the building and
amenities within reasonable time, the Accommodation Controller may direct on application by
the tenant that such maintenance and repairs be attended by the tenant. The charges and the costs
incurred may be deducted from the rent payable at an interest of 6% p.a.
G. Frivolous Petition

Where an application for eviction made by the landlord is frivolous or vexatious, the tenant shall
be entitled to compensation. However, this provision has now become obsolete since the
maximum compensation to be paid by the landlord to the tenant as per the statute is Rs. 50/-.The

compensation payable should be augmented in tune with the changing times in accordance with
the principle of compensatory costs under S. 35A and S.95 of CPC.
Determination of Rent
The word rent is not defined in the Act. Therefore it is to be interpreted in its grammatical
connotations. Section 105 of the Transfer of Property Act defines the word rent. Payment of rent,
undoubtedly, is an essential element of lease or sublease. It may be paid in cash or may have
been paid or promised to be paid. It may have been paid in lump sum in advance covering the
period for which the premises is let out or sublet or it may have been paid or promised to be paid
periodically.23
The pegging of the rents at the 1940 rates had discouraged building construction activity which
ultimately is likely to affect everybody and therefore in order to encourage new constructions
exempted them altogether from the provisions of the Act. It did not proceed on the basis that all
tenants belonged to the weaker section of the community and needed protection and that all
landlords belonged to the better of classes. It confined the protection of the Act to the weaker
section paying rents below Rs. 250. It is clear therefore that the Madras legislature deliberately
proceeded on the basis that fair rent was to be fixed which has to be fair both to the landlords as
well as to the tenants and that only the poorer classes of tenants needed protection. 24 Fair rent is
not what a tenant always what is fair between particular landlord and his tenant, considering their
relative economic circumstances. Fair rent is not what a tenant has acquiesced in for reasons of
prudence but what the law prescribes to be fair in spite of his consent to pay the higher rent. That
you cannot acquiesced away your right to fix fair rent is basic to this type of legislation.25
In Aboobakar v. Vasu, it was held that Civil Court has got the power to fix fair rent.
Issac Ninan v. State of Kerala26 Constructing buildings and letting them out for rent to tenants
23 Vipinachandran v. Xavier , 2005(4)KLT 850
24 Raval and Co. v. K.C. Ramachandran AIR 1974 SC 818
25 Devasy v. Joseph, 1969 KLT 541
26 1995 (2) KLJ 555

would also fall within the ambit of business. In Art. 19(1)(g) of the Constitution, the phrase
reasonable restriction connotes that limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond what is required in the interest of
general public. Legislation while arbitrarily invaded the right cannot be said to contain the
quality of reasonableness unless it strikes a proper balance between the freedoms guaranteed
under Art. 19(1)(g) and the social control permitted under clause (6) of Art 19, it must be held to
be warranting in that qualities. If so, the combined operation of S.5,6 and 8 of the Act is a gross
invasion on the right of a landlord to carry on business. Section 5(1) is reinstated and the
Landlord

or

tenant

can

approach

the

Rent

control

court

to

fix

fair

rent. 27

Matters to be considered while fixing rent

The Rent Control Court shall consider the property tax or house tax fixed by the local
authority. If no tax is fixed for the building the fair rent shall be fixed on the basis of

rent for similar accommodation in the similar circumstances.


Proceedings under S.5 for fixation of fair rent pending before Civil Court should be
transmitted suo-motu by the Civil Court to concerned Rent Control Court so that
litigant public would not be put to difficulties. Civil Court is also bound to transmit
all records including the evidence taken so that the rent control court could continue

the proceeding with the evidence already on record or to be adduced by the parties.28
Even if S. 5 is taken to be not available, that does not in any manner deprive the rent

controller of his jurisdiction to fix the fair rent.29


Even if there is no provision for periodical rent revision in the rent deed the landlord
can approach the rent control court for revision rent. Rent control court while fixing
the fair rent could take note of : (i) the inflation and the resultant reduction in
purchasing power (ii) variation in the cost of living index in the area since
commencement of the lease. (iii) demand for accommodation and availability of the
building in the locality (iv) prevailing rent in the locality for the similar
accommodation (v) the type of construction (vi) the general or special amenities

27 Edger Ferus v. Abraham Itticheriya, 2004(1)KLT 767.


28 Abdul Hakeem Haji v. Nandagopalan, 2004 (3) KLT 767
29 George v. Narayani, 1989(1)KLT 239.

provided in the building (vii) whether residential or non-residential (viii) Annual


rental value of the building at the time of filing application for fair rent (ix) revision
or fresh imposition of municipal taxes, cess rates in respect of other increase in the
charge of electricity or water consumption by the tenant and also by the landlord (x
increase in account of repairs are to be taken into account.30
Unregistered lease deed cannot be pressed into service to create any right for revision of rent.
Unregistered lease deed could be looked into for ascertaining the commencement of possession,
rate of rent or similar other provisions which are collateral to the principal transaction. Since the
document is unregistered the remedy available is to approach the rent control court for fixing of
fair rent.31
The rent control court has got jurisdiction to fix fair rent. The only thing is that the rent controller
could not rely on Ss. 5, 6 or 8 or nay of the restrictions contained therein for fixing fair rent. Fair
rent has to be understood as a rent a willing tenant would pay to a willing landlord, for a building
commensurate with the rent prevalent locality and the nature and location of the building.
Increase of rent
Once the fair rent of a building has been fixed, no further increases in fair rent shall be
permissible except in cases here some necessary addition, improvement or alteration has been
made at the landlords expenses. The fair rent so increased shall not exceed the rent payable
under the Act for a similar building in the same locality with such additional improvement or
alteration has been completed.
Section 8 imposes a bar on claiming excess rent. It relates to cases where Rent Control courts
have determined the fair rent of a building. According to it, the landlord shall not claim, receive
or stipulate for any premium or other like sum or anything in excess of fair rent except as
provided in Section 6 or section 7. However, there is no bar to the landlord receiving or
stipulating for payment of an amount exceeding one months rent by way of advance. Any excess
received shall be refunded by the landlord. The refund shall be limited to the amount paid in
30 Edger Ferus v. Abraham Itticheriya, 2004(1)KLT 767
31 Chandrakala v. Soman, 2004 (3) KLT 432

excess

for

period

of

three

years

before

institution

of

proceedings.

A tenant paying rent or advance is entitled to receipt. 32 The rent lawfully deposited may be
withdrawn by the tenant, may be withdrawn by the landlord subject to certain conditions.
Non-payment of rent due to restraint order of government cannot be treated as willful default. 33
In the absence of any contract to the contrary, the rent of a building payable monthly will become
due at the end of each month.34

Bibliography

32 Section 9, Kerala Building(lease and rent Control) Act


33 Jermons v. Aliammal, AIR 1999 SC 304
34 Kamala Bakshi v. Khairati Lal, AIR 2000 SC 1808.

1) BOBBY MANI, COMMENTARY ON THE RENT CONTROL LAWS IN KERALA (6th


edn.) 2012
2) Building rights as property rights, Claudio Monteiro, Symposium on Law and Property
Rights Warsaw, 2008.
3) www.indiakanoon.org
4) http://www.jstor.org/stable/49857?sq=1#page_scan_tab_contents