Madras High Court
M/S.India Tourism Development ... vs M.R.Junaitha Begum on 17 September, 2021
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No.519 of 2019
and C.M.P. Nos.4444 of 2019 and 6445 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.08.2021
PRONOUNCED ON : 17.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P.No.519 of 2019
and
C.M.P. Nos.4444 of 2019 and 6445 of 2021
C.R.P. No.678 of 2019
M/s.India Tourism Development Corporation Ltd.,
Regional Office (South)
Rep. by its Regional Manager (South)
Panagal Buildings, First Floor,
No.1, Jeenis Road, Saidapet
Chennai - 600 015 ... Petitioner / Tenant
versus
M.R.Junaitha Begum ... Respondent / Landlady
C.R.P. Nos.518 & 519 of 2019
M.R.Junaitha Begum ... Petitioner / Landlady
versus
1/33
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No.519 of 2019
and C.M.P. Nos.4444 of 2019 and 6445 of 2021
M/s.India Tourism Development Corporation Limited,
Regional Tourist Office,
Represented by its Deputy General Manager (South),
Panagal Maaligai Buildings, First Floor,
No.1, Jeenis Road, Saidapet,
Chennai - 600 015. ... Respondent / Tenant
COMMON PRAYER: Civil Revision Petitions have been filed under
Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
to set aside the judgments and decrees of the learned Rent Control Appellate
Authority in R.C.A.Nos.463 of 2017 and 538 of 2017 dated 01.09.2018, on
the file of the learned Rent Control Appellate Authority / VIII Judge, Court of
Small Causes, Chennai, reversing the fair order and decreetal order dated
20.04.2017 in R.C.O.P.No.585 of 2013 on the file of the learned Rent
Controller / XIII Judge, Court of Small Causes, Chennai.
For Petitioner : Mr.M.V.Swaroop
[in C.R.P.No.678 of 2019]
For Petitioner : Mr.M.V.Vijaya Baskar
[in C.R.P.Nos.518 and 519 of 2019]
For Respondent : Mr.M.V.Vijaya Baskar
[in C.R.P.No.678 of 2019]
For Respondent : Mr.M.V.Swaroop
[in C.R.P.Nos.518 and 519 of 2019]
2/33
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No.519 of 2019
and C.M.P. Nos.4444 of 2019 and 6445 of 2021
COMMON ORDER
Civil Revision Petition Nos.518 and 519 of 2019 have been preferred against the judgment of the learned Rent Control Appellate Authority in R.C.A. Nos.463 and 538 of 2017 respectively in R.C.O.P.No.585 of 2013 by the landlady. C.R.P.No.678 of 2019 has been filed against the judgment of the learned Rent Control Appellate Authority in R.C.A.No.463 of 2017 in R.C.O.P.No.585 of 2013 by the tenant.
2. The tenant filed the Revision, challenging the fair rent fixed by the learned Rent Controller and then by the learned Rent Control Appellate Authority. The landlady filed two Revisions, challenging the fair rent fixed by the learned Rent Controller and then by the learned Rent Control Appellate Authority and for enhancement of the fair rent.
3. The landlady M.R.Junaitha Begum filed R.C.O.P.No.585 of 2013 under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the tenant M/s.India Tourism Development Corporation Limited, for non-residential purpose. The tenanted premises is 3/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 situated at No.29, Dr.P.V.Cherian Crescent (previously Victoria Crescent Road), Ethiraj Salai, Egmore, Chennai - 600 008, measuring about 5242 sq.ft. The monthly rent was fixed at Rs.45,150/-. A sum of Rs.74,175/- was paid as rental advance. The monthly rent has to be paid on the first day of every succeeding month. The petition schedule premises situated in the posh area, surrounded by Hotel Kanchi near Ethiraj College opposite to Presidency Club and Wellingdon Estate and all the important locations like Raja Muthaiah Hall, India Tourism, Spencer Plaza, Post Office, Bus Stop, Bank, Hotels, Kannimara Library, Government Arts College, Hotel Connimara and other commercial complexes etc.
4. The market value of the site, is more than Rs.3,00,00,000/- per ground in that locality. The entire superstructure comprised of fully built ground floor and partly constructed first floor. Corporation water supply, three phase electricity supply and drainage connection to corporation sewer facility exists as basic amenities. Schedule-I amenities include overhead water tank, electric motor, mosaic flooring, teak wood in joineries, glazed walling and ceramic floor areas in toilet, gardening 4/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 in portico area, architectural features, partly constructed compound wall and appurtenant land exists in use to the respondent. The fair rent to this building comes to Rs.7,62,056/- per month. Therefore, this petition.
5. The tenant filed counter admitting the tenancy and the monthly rent fixed. It is claimed that the tenant came as a lessee with S.K.S.Umma Salma and on her death, her daughter S.A.Nabisa Ammal, was receiving rent on behalf of other legal representatives, as well. After the death of S.A.Nabisa Ammal, the rents were paid to the landlady M.R.Junaitha Begum and she received the rents on her behalf and as the Power agent of the legal representatives of Late S.M.Abdul Kareem.
6. Admittedly, M.R.Junaitha Begum, is not the absolute owner of the property but a co-sharer of the property. S.A.Fayaz Ahmed, grandson of Late S.M.Abdul Kareem, revoked the General Power of Attorney given in favour of M.R.Junaitha Begum and sent a letter in this regard to the tenant. A notice dated 19.04.2013 was received from S.A.Fayaz Ahmed stating that, he is entitled to 32% share in the property and called upon the 5/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 tenant to enter into a separate Lease Deed for his 32% of undivided share in the property. Thereupon, a Lease Deed was entered into between the tenant and S.A.Fayaz Ahmed on 03.05.2013. 32% of the monthly rent, that is, Rs.14,448/- was being paid to S.A.Fayaz Ahmed. Concealing all these facts, the landlady M.R.Junaitha Begum filed the present R.C.O.P. She cannot claim absolute ownership to the tenanted premises and claim rent. The balance rent amount sent to M.R.Junaitha Begum through Cheque, was returned. The filing of this petition, is not a bona fide but it is an attempt to get unjust enrichment. The landlady does not have absolute right to file the present petition. Therefore, the tenant prayed for dismissal of this petition.
7. During enquiry before the learned Rent Controller, P.W.1 and R.W.1 had been examined, Exhibits Ex.P.1 to Ex.P.4 and Ex.R.1 to Ex.R.8 were marked. On considering the oral and documentary evidence, the learned Rent Controller fixed the fair rent at Rs.9,47,000/- per month. Against the said order, both the landlady and the tenant preferred appeals in R.C.A.Nos.538 of 2017 and 463 of 2017 respectively. On reappreciation of the evidence, the learned Rent Control Appellate Authority, partly allowed 6/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 R.C.A.No.463 of 2017 and modified the order of the learned Rent Controller and reduced the fair rent from Rs.9,47,000/- to Rs.8,81,060/-. R.C.A.No.538 of 2017 filed by the landlady for enhancement, was dismissed. As said earlier, against the judgments passed in R.C.A.Nos.463 and 538 of 2017, the landlady preferred C.R.P.Nos.518 and 519 of 2019. The tenant preferred C.R.P.No.678 of 2019 against the judgment passed in R.C.A.No.463 of 2017.
8. The learned counsel for the tenant submitted that, the fair rent fixed for the building, is abnormally high. The area taken and the value adopted for fixing the fair rent, is not based on any acceptable document and scientific formula. As per the Lease Deed, the carpet area of 4300 sq.ft. alone was leased out. The open area was not leased out. The open area is not used only by the tenant but by others. Therefore, only 4300 sq.ft. should have been taken for fixing the land value and not 5242 sq.ft. Even in the petition, the value of the land was claimed at Rs.3,00,00,000/- per ground. But the learned Rent Controller came to the conclusion on the basis of Ex.P.3-Sale Deed that, the value of the land was Rs.3,96,00,000/- per ground. The property which 7/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 was taken into consideration for fixing the land value, does not situate near the suit property and it lies elsewhere. Moreover, only an undivided share was sold through this property. Therefore, fixing the land value on the basis of Ex.P.3-Sale Deed, is not correct.
9. He further submitted that no witness was examined to prove the contents of Ex.P.3. Without examining the witness, Ex.P.3 cannot be relied on, for fixing the land value. There are judgments to show that the witness to the document produced for fixing the market value should be examined. The landlady is only a co-sharer. Without obtaining the Power of Attorney from other co-sharers, she cannot maintain this petition, especially, when one co-sharer entered into a separate Lease Agreement with the tenant. Therefore, the learned counsel for the tenant submitted that, the fair rent fixed by both the authorities, is not correct, the Fair Rent Petition, is misconceived and the fair rent has to be reduced, considering only the portion in the occupation of the tenant.
8/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021
10. The learned counsel for the tenant relied on the judgment of this Court in K.RAMANATHAN vs. B.K.NALINI JAYANTHI reported in 1996 (2) CTC 700 for the proposition that without examining the parties to the Sale Deed, which is produced to determine the market value, the Sale Deed cannot be relied on.
"33. We do appreciate the anguish expressed by S.Jagadeesan, J., in regard to the pendency of the case in various forums for more than 12 years. It is true that the petitioners herein have not raised the issue of non-examination of witnesses, etc., to prove the sale deeds, etc., before the authorities below or in the grounds of revision. We could have straightaway dismissed the revisions on the ground of non-raising of these points in the grounds of revision. But, however, the mistake of a counsel cannot stand in the way of the tenants getting the benefit of the rulings of this Court and also of the Supreme Court on a pure legal issue. It is true that the matter is pending in some forum or the other for the last 12 years. No one can be blamed for the law's delay, which is due to various circumstances. The landlord is also not prejudiced in any manner since the landlord, filing an application for fixation of fair rent, is entitled to the enhanced rent from the date of him application under Section 4 of the Act, and that any determination now made by the Court below will date back to the date of the petition under Section 4 of the Act."
11. He also relied on the judgment of the Hon'ble Supreme Court in MOHINDER PRASAD JAIN vs. MANOHAR LAL JAIN reported in (2006) 2 SCC 724 for the proposition that, when the co-owner objects to 9/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 eviction proceedings, it is a relevant factor to be considered while deciding the Rent Control Original Petition.
"6. Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (Sri Ram Pasricha v. Jagannath reported in (1976) 4 SCC 184 and Dhannalal v. Kalawatibai reported in (2002) 6 SCC 16). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised."
12. Per contra, the learned counsel for the landlady submitted that, the fair rent was fixed, after considering the oral and documentary evidence produced by both the parties. The value of the building was arrived at on the basis of PWD rate, after giving necessary depreciation, the area of the land was arrived at on the basis of the landlady's claim and on the basis of the enjoyment of the tenant. The landlady produced Ex.P.3-Sale Deed for 10/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 showing the value of the land. In fact, the value of the land, is more than Rs.4,00,00,000/- as submitted by R.W.1 But the learned Rent Controller had taken the value at Rs,3,96,00,000/- and that was reduced to Rs.2,75,00,000/- by the learned Rent Control Appellate Authority, without any justifiable reasons. The tenant has not produced any document to show the value of the land to the petition mentioned property. Therefore, the learned Rent Controller and the learned Rent Control Appellate Authority decided the case on the basis of the evidence available. The fair rent should have been fixed more but was reduced by the learned Rent Control Appellate Authority. The tenant has not made any specific denial in the counter with regard to the averments made in the petition for fixing the fair rent, especially, there is no specific denial that the tenant is in the occupation of only 4300 sq.ft. Both the Engineers have found that, the tenant, is in the occupation of 5242 sq.ft. of both land and building within the compound wall.
13. It is further submitted that the tenant filed petition under Section 8(5) of the Rent Control Original Petition and deposited the amount. It shows that, he admitted that the present landlady, as a person entitled to collect rents in terms of the Tamil Nadu Buildings (Lease and Rent Control) 11/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 Act. With regard to the claim that, one of the co-owners has revoked the Power of Attorney executed in favour of the landlady and entered into the Lease Agreement with the tenant, the learned counsel for the tenant submitted that, the petition to implead S.A.Fayaz Ahmed was filed in M.P.No.736 of 2014 in R.C.O.P.No.585 of 2013 and that was dismissed. Against the said dismissal order, either the tenant or S.A.Fayaz Ahmed has not preferred any appeal or the revision. One co-owner can always maintain a petition under the Tamil Nadu Buildings (Lease and Rent Control) Act, for the benefit of other co-owners. Therefore, the learned counsel for the tenant submitted that, the reduction of fair rent by the learned Rent Control Appellate Authority, should be set aside and the fair rent, should be enhanced by considering the fact that, the value of the land, is more than Rs.4,00,00,000/- per ground.
14. He further submitted that the judgment relied on by the learned counsel for the tenant in K.RAMANATHAN vs. B.K.NALINI JAYANTHI reported in 1996 (2) CTC 700 was decided on the basis of the judgment of the Hon'ble Supreme Court in INDER SINGH vs. UNION OF INDIA reported in (1993) 3 SCR 371 for the proposition that, the oral 12/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 evidence, is necessary to speak about the transaction in a Sale Deed, which is filed to determine the market value of the land. The relevant portion reads thus;
"It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transaction is to be examined by producing either the original sale deed or certified copies thereof as evidence. Under Section 51-A of the Act as amended in 1984 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein. The examination of the witnesses is to find that the sale transactions are bonafide and genuine transactions between willing vendor and willing vendee as reasonable prudent man and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value the lands under acquisition and the sales are accommodating one. Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantages and whether transactions themselves are genuine and bona fide transactions. This proposition of law, since settled law, in fairness, has not been disputed across the bar. The contention is that at the relevant time it was not being insisted upon. Therefore, none of the witnesses was called upon to prove the sale deeds or to prove the sale transactions. Therefore, when evidence of potential value is available, the same could be considered. We find merit in the contention. At one time we thought of remanding the cases but we find that it would be needless prolongation and the completion on ground by now would have been 13/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 completely changed. In view of the above settled legal position and the circumstances, the documentary evidence of sale transactions or in the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into and are accordingly excluded from consideration."
15. He also submitted that this judgment was overruled in the judgment of the Hon'ble Supreme Court in LAND ACQUISITION OFFICER & MANDAL REVENUE OFFICER vs. V.NARASAIAH reported in (2001) 3 SCC 530 and it is observed that “we are unable to concur with the observations made by the two-Judge Bench decision in the decisions in Inder Singh v. Union of India [(1993) 3 SCC 240] and P.Ram Reddy v. Land Acquisition Officer [(1995) 2 SCC 305] that even in spite of Section 51-A of the Act certified copies of the sale deed could not be considered without examining persons connected with the transactions mentioned therein."
16. He also relied on the judgments of this Court in SUSAINATHAN vs. T.VIJAYAN reported in CDJ 2001 MHC 1088 and V.KRISHNAMOORTHY vs. M.R.LALITHA reported in CDJ 2007 MHC 14/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 4037, for the proposition that, when there is no doubt regarding the bona fides or genuineness of the transaction mentioned in the document marked for determining the market value, the document can be seen without examining the parties thereto. The relevant portions observed thus;
"In the decision reported in Land Acquisition Officer and Mandal Revenue Officer v. V.Narasaiah (2001) T.L.N.J. 33:(2001) 2 C.T.C. 424 it was held that the transaction recorded in the exhibits marked in the case that was under consideration could be relied on though no one was examined for proving such transaction. This conclusion was arrived at because in that case, the State had not created any doubt regarding the bonafides or genuineness of the transactions mentioned therein. In this case, the appellate court declined to accept the value of the site recorded in Ex.P-11 though the transaction was not denied by R.W.2, the respondent herein nor was anything elicited in the oral evidence that the transaction was not genuine. One of the parties to this sale deed is a public limited company namely the Coramandel Engineering Company and we have no reason to believe that the sale consideration reflected therein is inflated or that it was a distress sale."
"Certified copies of sale deed can be accepted for computing market value and parties to the documents need not be examined."
17. In view of the change in position of law, the learned counsel for the landlady submitted that, the non-examination of parties to Ex.P.3-Sale Deed will no way affect the case of the landlady, especially when 15/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 credibility of the document, is not challenged. He also relied on the judgment of this Court in SAKTHI & CO. vs. SHREE DESIGACHARY reported in 2006 (2) CTC 433 for the proposition that "fixation of market value on the basis of guideline value or valuation register, summoned from Sub- Registrar's Office and the Engineer, is illegal and unsustainable." Only the market value has to be taken into consideration for fixing the land value.
"15. It is a settled law, as laid down in the judgements referred to above, that in determining the market value, the Court has to take into account either one or the other three methods to determine market value of the lands appropriate on the facts of a given case. According to the Supreme Court, generally, the second method of valuation is accepted, as the best. This method would furnish the evidence of bona fide sales between willing prudent vendor and prudent vendee of the lands acquired or situated near about that land possessing same or similar advantageous features, which would enable the Court to determine the market value correctly.
16. In view of the above ratio decidendi fixed by the Supreme Court, the fixation of market value on the basis of guideline value or valuation register, summoned from Sub-Registrar's Office and the Engineer, is illegal and unsustainable."
18. One more submission advanced by the learned counsel for the tenant is that, the entire vacant land cannot be taken into consideration for 16/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 fixing the area of land, but only 50% of the land has to be taken into consideration for fixing the area of land.
19. To answer this submission, the learned counsel for the landlady relied on the judgment of this Court in H.C.LODHA vs Dr.C.RANGANATHAN reported in 1989 (1) L.W. 137 for the proposition that, if the vacant land is available less then 50% of the area of building, then the entire vacant land of the building should be taken into consideration for fixing the area of the land.
"The language of the proviso being plain, we cannot read it in any other manner, which, if done, in our view, would be a stilted one. The expressions have got to be read in the context in which they occur and conjointly with the preceding expressions. The expressions form a measure, applying which the vacant land, if any, appurtenant to such building has got to be carved out and added on to the built up extent. The Division Bench in K.Kaliammal and others v. Athi V.Ramachandran and others (1983-II-M.L.J. 252], apprehends a resultant anomaly, if the construction, which we have now approved, is to be adopted. The Division Bench has lost sight of the significance of the expressions 'upto fifty percent' of the extent and 'of the vacant land, if any, appurtenant to', occurring in the proviso. An area 'upto fifty percent' of the extent or portion of the site on which the building is constructed has to be carved out of the vacant land, if any, appurtenant to such building. Only if there 17/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 is any vacant land, appurtenant to such building, the application of this formula would arise. If there is no vacant land appurtenant to such building, the contingency to apply this formula would not arise at all. If there is any vacant land, appurtenant to such building, but its extent is equal to or less than the built up extent, the same will have to be annexed to the built up extent, to form the aggregate basis for arriving at the market value of the site, If there is any vacant land, appurtenant to such building, and its extent is in excess of the built up extent, carving out of it fifty percent of the built up extent, to be added to the built up extent, for calculating the market value of the site, the residue of the vacant land has to be treated as amenity."
20. Considered the rival submissions and perused the records.
21. The narration of the facts aforesaid shows that, there is no dispute with regard to the induction of the respondent as a tenant in respect of the petition mentioned property, on the monthly rent. One submission made on behalf of the tenant is that, the landlady M.R.Junaitha Begum, is not the absolute owner of the property but she is one of the co-owners alone. There are other co-owners as well. In fact, one of the co- sharers, S.A.Fayaz Ahmed, revoked the Power of Attorney given in favour of M.R.Junaitha Begum and entered into a separate Tenancy Agreement with 18/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 the tenant, in respect of his 32% share. Therefore, it is submitted on behalf of the tenant that, the landlady cannot maintain this petition. It is seen in the counter filed in the main petition that, the landlady M.R.Junaitha Begum was collecting the rents, on her behalf and as the Power Agent of the legal representatives of Late S.M.Abdul Kareem including Late Sultan Arif, grandson of Late S.M.Abdul Kareem. S.A.Fayaz Ahmed, son of Late Sultan Arif and grandson of Late S.M.Abdul Kareem said to have cancelled the Power of Attorney given in favour of M.R.Junaitha Begum and entered into a separate Lease Agreement with the tenant.
22. The petition was filed to implead the said S.A.Fayaz Ahmed in M.P.No.736 of 2014 and that was dismissed by the learned Rent Controller, on 27.06.2015. It appears that, there is no appeal preferred against the dismissal of this order. Therefore, the tenant cannot now claim that, the landlady M.R.Junaitha Begum, cannot maintain this petition. There is no material produced to show that, S.A.Fayaz Ahmed objected this present Rent Control Proceedings. When there is no objection raised, it is settled by the judgment of the Hon'ble Supreme Court in DHANNALAL v. KALAWATIBAI reported in (2002) 6 SCC 16 for the proposition that "one 19/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 co-owner filing a suit for eviction against the tenant does so on his own behalf on his own right and as an agent of other co-owners. This principle is based on the doctrine of agency. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement."
23. As already said, there is no material filed to show that, S.A.Fayaz Ahmed, opposed this Rent Control proceedings. The petition filed to implead him, as a party to this Rent Control proceedings, was dismissed and it was not agitated further. That conclusively decides the issue that, S.A.Fayaz Ahmed, has no objection for the landlady M.R.Junaitha Begum to prosecute this Rent Control proceedings.
24. Section 2(6) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, reads thus;
" "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or 20/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 guardian or who would so receive the rent to be entitled to receive the rent, if the building were let to a tenant"
25. This definition makes it clear that, the landlord is a person, is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent to be entitled to receive the rent, if the building were let to a tenant.
26. The landlady M.R.Junaitha Begum was given Power of Attorney to receive rent and she is continuing to receive the rents. The tenant has also filed petition under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for the deposited rent in the Court, admitting that M.R.Junaitha Begum as landlady. For these reasons, this Court finds that the submission made on behalf of the tenant that, the landlady M.R.Junaitha Begum cannot maintain this petition, without impleading other legal representatives or without getting Power of Attorney from S.A.Fayaz Ahmed, 21/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 is not correct and objection raised in this regard, was rightly rejected by the Courts below. The finding of the Courts below in this regard, is confirmed.
27. The landlady claimed fair rent at Rs.7,62,056/-. The learned Rent Controller fixed the fair rent at Rs.9,47,000/-. The learned Rent Control Appellate Authority reduced to Rs.8,81,059/-. The learned counsel for the tenant submitted that, the Rent Control Appellate Authority cannot fix the fair rent more than what is claimed in the petition. However, this submission, is not correct. Fair rent was fixed not for the landlord or tenant, but for the building in question in accordance with law and in consonance with the provisions of the Act. This proposition is laid down in the judgment of this Court in DOVO TAX COMPANY vs. T.R.RAMANATH reported in 1986-99-LW-269. When a similar contention was raised, this Court held that “the fair rent is fixed for the building in question in accordance with the provisions of the Act. It is not fair rent for the landlord or for the tenant, but for the building and as such the Rent Controller is free to fix the fair rent as per the law untrammelled by the contentions of the parties." Therefore, 22/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 fixing the fair rent more than what is claimed in the petition, he found in accordance with the provisions of the Act, cannot be faulted.
28. Initially, before the learned Rent Controller, the parties have been examined as P.W.1 and R.W.1. P.W.1 has produced Ex.P.1- Engineer's Report; Ex.P.2-Sketch; Ex.P.3-Certified copy of the Sale Deed; and Ex.P.4-Analysis Report. R.W.1 produced Ex.R.1-Engineer's Report; Ex.R.2-Valuation Report; Ex.R.3-Sketch; Ex.R.4 to Ex.R.6-Guideline Values; Ex.R.7-India Tourism Development Corporation Limited document copy; and Ex.R.8-CD with photographs.
29. The learned Rent Controller, on considering the oral evidence of P.W.1 and R.W.1 and the documents produced by them, classified the building as Type-1, Class-A building, on the basis of the Engineer's Reports filed by P.W.1 and R.W.1. The petitioner's Engineer claimed the age of the building, as 34-35 years and the respondent's Engineer claimed the age of the building, as 40 years. Since the landlady has not produced the Sale Deed or the sanctioned plan, the learned Rent Controller 23/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 accepted the age given by the tenant's Engineer, as 40 years. The depreciation was calculated at 1%, works out to 0.6689 since there is 3 basic amenities are available, 15% was given for basic amenities. The building has overhead water tank, electric motor, mosaic flooring, teak wood in joineries, glazed walling and ceramic floor areas in toilet, gardening in portico area, architectural features, partly constructed compound wall and appurtenant land as schedule 1 amenities and awarded 6% for schedule 1 amenities.
30. With regard to plinth area and cost of construction, there is not much difference between the reports filed by both the Engineers with regard to the area and cost of construction. In fact, R.W.1 has relied upon the plan filed by P.W.1, with respect to plinth area. R.W.1 has not produced a separate plan. Therefore, taking the plan filed by P.W.1, the learned Rent Controller fixed the plinth area in ground floor RCC roof as 3523 sq.ft., the ACC sheet roofing as 421 sq.ft., portico area as 1138.75 sq.ft. and the first floor RCC roof as 2348 sq.ft. As per PWD rate adopted Rs.593 per sq.ft., for the ground floor RCC roof, ACC sheet roof at Rs.338/- sq.ft., portico RCC area at Rs.300/- per sq.ft. and RCC roof area in the first floor at Rs.482 per sq.ft.
24/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021
31. With regard to the land value on the basis of Ex.P.3-Sale Deed, as per P.W.1's Engineer's report, the value of the land per ground was fixed at Rs.3,96,00,000/-. R.W.1's Engineer adopted 2 values, one is on the basis of market survey at Rs.26.36 per sq.ft., another one is on the basis of the guideline value at Rs.13,700 per sq.ft. The guideline value per square feet works out to Rs.3,28,80,000/- per ground. The learned Rent Controller decided on the basis of proposition of law that, the guideline value cannot form the basis for determining the market value and adopted the market value on the basis of Ex.P.3. This finding of the landlord, is inconsonance with the judgment of this Court in SAKTHI & CO. vs. SHREE DESIGACHARY reported in 2006 (2) CTC 433. The relevant portion is extracted above.
32. Therefore, taking Ex.P.3-Sale Deed as a basic document for fixing the market value of the property, when its genuineness is not in question and when there is no contra evidence produced by the tenant to show the value of the property, in the considered view of this Court, is absolutely right. This had been observed by this Court in SUSAINATHAN 25/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 vs. T.VIJAYAN reported in CDJ 2001 MHC 1088 and V.KRISHNAMOORTHY vs. M.R.LALITHA reported in CDJ 2007 MHC 4037.
33. The submission for the learned counsel for the tenant that, without examining the parties to Ex.P.3, it cannot be looked into, for determining the market value on the basis of the judgment in K.RAMANATHAN vs. B.K.NALINI JAYANTHI reported in 1996 (2) CTC 700 cannot be accepted for the reason that, the subsequent judgment of the Hon'ble Supreme Court in LAND ACQUISITION OFFICER & MANDAL REVENUE OFFICER vs. V.NARASAIAH reported in (2001) 3 SCC 530, the judgment in INDER SINGH vs. UNION OF INDIA reported in (1993) 3 SCR 371, which was relied on, for reaching a decision in K.RAMANATHAN vs. B.K.NALINI JAYANTHI reported in 1996 (2) CTC 700, was overruled. The subsequent decisions in SUSAINATHAN vs. T.VIJAYAN reported in CDJ 2001 MHC 1088 and V.KRISHNAMOORTHY vs. M.R.LALITHA reported in CDJ 2007 MHC 4037 have held that when the genuineness of the document is not disputed, 26/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 the documents can be relied on, even without examining the parties for determining the market value. In this view of the matter, the objection of the learned counsel for the tenant that, without examining the parties to Ex.P.3, it cannot be relied on, for determining the market value of the land of the petition mentioned property cannot be accepted. As indicated earlier, this Court finds that fixing the market value of the land on the basis of Ex.P.3, is correct.
34. The learned Rent Controller based on the built up plinth area in the ground floor and the first floor, the value adopted by PWD, provided 15% for basic amenities and depreciation at 1% for 40 years and arrived the total cost of construction at Rs.28,49,860/-. The total area in the occupation of the tenant was fixed at 5242 sq.ft. The cost of construction and land value was arrived at Rs.8,64,93,000/- 6% was given for schedule-I amenities and fixed the fair rent was at Rs.9,47,000/-
35. In the appeal, the learned Rent Control Appellate Authority, on reappreciating the evidence, though found the correctness with 27/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 the findings of the learned Rent Controller, with regard to the type of building, age of building, depreciation, basic amenities, schedule-I amenities, plinth area and cost of construction, differed with regard to the land value adopted. The learned Rent Control Appellate Authority found that, Ex.P.3 property was sold for sale consideration of Rs.2,75,00,000/-. The cost of construction was at Rs.18,00,000/-. Therefore, the cost of construction has to be deducted from the sale consideration and thus, arrived the land value at Rs.2,57,00,000/- Accordingly, arrived the land value at Rs.3,67,50,379/-. On this revised land value, the fair rent fixed at Rs.8,81,060/- per month.
36. The learned counsel for the landlady submitted that, this reduction, is not correct. The reason is that, R.W.1 has clearly admitted in his evidence that, the value of the land for petition mentioned property must be Rs.4,00,00,000/- and that is the reason why, he has not produced any Sale Deed to prove the value of the land. This admission of R.W.1 is sought to be taken advantage by the landlady for demanding higher fair rent. But mere oral evidence with regard to the value of the land, without any documentary proof, cannot be admitted. If really, the value of the land, is more than 28/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 Rs.4,00,00,000/-, the landlady should have filed appropriate document. That is not done so. Therefore, the land value can be fixed only on the basis of the document produced by the landlady. As rightly held by the learned Rent Control Appellate Authority, Ex.P.3 property was sold for Rs.2,75,00,000/-. The value of the building was shown as Rs.18,00,000/-. Therefore, the deduction of the value of the building by the learned Rent Control Appellate Authority for arriving at the value of the land, is correct and that cannot be faulted.
37. The submission of the learned counsel for the tenant that, as per the Lease Deed only an extent of 4000 sq.ft. was leased out, the portico area was not leased out. This Court finds from the Agreement of Lease that, the building with carpet area measuring 4300 sq.ft. with compound wall and situated in the premises at Door No.29, Dr.P.V.Cherian Crescent (previously Victoria Crescent Road), Ethiraj Salai, Egmore, Chennai
- 600 008, was leased out, to the tenant. The Engineer's Report and his evidence shows that, the area of the land with compound wall is 5242 sq.ft. The total extent of this land with the building was leased out to the tenant 29/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 alone. Therefore, it is not open to the tenant to contend that the open area was not leased out to him and it is enjoyed by others. There is no material produced to show that the landlady consented for others to use the vacant area. Then, it can only be considered that the total area of 5242 sq.ft. with the building therein, was leased out to the tenant.
38. The ground floor RCC roof area, ACC sheet roof area and RCC plinth area, put together measures 5082.75 sq.ft. The balance open space available, is only 159.25 sq.ft. It is less than 50% of the built up area. Therefore, the entire area has to be taken into consideration for fixing the land area. The Courts below have rightly done so.
39. On considering the oral and documentary evidence produced, in this case, the orders of the Courts below, the submissions of the learned counsel appearing for both the parties, the judgments relied on by them, this Court concludes that the learned Rent Control Appellate Authority, has rightly confirmed the findings of the learned Rent Controller, with regard to the type of the building, age of the building, depreciation, both basic and 30/33 https://www.mhc.tn.gov.in/judis/ C.R.P. (NPD) Nos.678 and 518 of 2019, and C.R.P. No.519 of 2019 and C.M.P. Nos.4444 of 2019 and 6445 of 2021 schedule-1 amenities, plinth area and cost of construction and has also rightly determined the land value by modifying the land value at Rs.2,57,00,000/- and reduced the fair rent to Rs.8,81,060/-. This finding of the learned Rent Control Appellate authority, is based on proper and correct appreciation of oral and documentary evidence and this Court finds no reason to interfere with the finding of the learned Rent Control Appellate Authority / VIII Judge, Court of Small Causes, Chennai, in R.C.A.Nos.463 of 2017 and 538 of 2017 dated 01.09.2018 and the judgments, are hereby confirmed.
40. Resultantly, these Civil Revision Petitions are dismissed, with costs of the landlady throughout. Consequently, connected Miscellaneous Petitions are closed.
17.09.2021
Speaking order / Non-speaking order
Index : Yes / No
sri
31/33
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No.519 of 2019
and C.M.P. Nos.4444 of 2019 and 6445 of 2021
To
1.The Rent Control Appellate Authority /
VIII Judge, Court of Small Causes,
Chennai.
2.The Rent Controller /
XIII Judge, Court of Small Causes,
Chennai.
32/33
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No.519 of 2019
and C.M.P. Nos.4444 of 2019 and 6445 of 2021
G.CHANDRASEKHARAN, J.
sri
Pre-Delivery Common Order made in
C.R.P. (NPD) Nos.678 and 518 of 2019,
and C.R.P. No. 519 of 2019
and
C.M.P. Nos.4444 of 2019 and 6445 of 2021
17.09.2021
33/33
https://www.mhc.tn.gov.in/judis/