Madras High Court
T.Mayura Malliah vs Sri Aurobindo Ashram Trust on 7 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.08.2013 CORAM THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU C.R.P. (NPD) No.255 of 2007 and M.P.Nos.1 and 2 of 2009 T.Mayura Malliah .. Petitioner ..vs.. Sri Aurobindo Ashram Trust, Rep. By its Managing Trustee, Manoj Das Gupta, carrying on business at No.14, Romain Rolland Street, Pondicherry. ... Respondent Prayer: Civil Revision Petition filed under section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 against the judgment and decree dated 27.10.2006 in R.C.A.No.18/2004 on the file of the Principal District Judge at Pondicherry modifying the fair rent arrived by the Rent Controller in H.R.C.O.P.No.100/2000 dated 2.3.2004. For Petitioner : Mr.N.G.R.Prasad for M/s.Row & Reddy For Respondent: Mr.C.A.Diwakar O R D E R
The petitioner is the landlady. She is aggrieved against the order passed by the Rent Control Appellate Authority in reversing the finding of the learned Rent Controller while fixing the fair rent.
2.Short facts of the case are as follows:
The subject matter property was originally owned by the petitioner's mother. After her death, the said property was inherited by her 5 children viz., the petitioner and her three brothers and one sister equally with 1/5th share each. The respondent herein is the tenant of the said premises originally by paying a monthly rent of Rs.2,000/- to the petitioner's mother. After her death, by way of a periodical increase, the monthly rent was increased to Rs.10,000/- and the petitioner was paid her share of Rs.2,000/- from the total rental amount. On 13.01.1999, the respondent purchased 4/5th undivided share of the petition premises from the other 4 sharers by way of a registered sale deed. Consequently, the respondent became the owner in respect of the 4/5th undivided share on and from 13.01.1999 and the petitioner is continuing to be the owner in respect of 1/5th undivided share of the petition mentioned property.
3.It is the case of the petitioner that after such purchase, the respondent wanted the petitioner also to part with her 1/5th share by way of sale which she declined. The rent which is being paid by the respondent is not reflecting the fair rent and therefore, she filed H.R.C.O.P.No.100/2000 on the file of the learned Rent Controller, Pondichery under section 5(4) of the Pondicherry Building (Lease and Rent) Control Act, 1969 for fixation of fair rent at the rate of Rs.1,76,000/- per month for the entire premises and consequently, seeking for a direction to the tenant to pay the petitioner a sum of Rs.35,200/- per month as rent being the 1/5th share. For making such claim, the petitioner heavily relied on the sale deed dated 13.09.1999 executed by the other sharers in favour of the respondent in respect of 4/5th share of the very same premises. The market value of the property was shown therein as Rs.1,76,00,000/-.
4.The said application was resisted by the respondent. It is their contention that the market value of the property reflected in the sale deed dated 13.01.1999 was only shown as a fancy price on account of the fact that the respondent was in long possession thereof for their business purposes. Thus, it is contended by them that the market price shown therein was not really reflecting the true value but it is an excessive price on account of long possession and out of a desire to have full ownership by the occupants themselves. Thus, the respondent opposed the claim of the landlady for fixing the fair rent at the rate of Rs.35,200/- being her 1/5th share.
5.The learned Rent Controller after considering the rival pleadings and by considering the value shown in the sale deed dated 13.01.1999 apart from the guideline value, fixed the market value of the demised premises as Rs.1,58,82,598/-. Consequently, he fixed the fair rent over the demised premises as Rs.1,58,825/- out of which 1/5th share of the petitioner was fixed as Rs.31,765/-.
6.The said order of the learned Rent Controller was challenged by the tenant in R.C.A.No.18/2004 on the file of the learned Principal District Judge, Pondicherry. The learned Appellate Authority reversed the finding of the learned Rent Controller and fixed the market value of the petition mentioned premises as Rs.40,68,418/-. Consequently, by fixing Rs.8,13,684/- as 1/5th share value, the rent payable for such 1/5th share was fixed as Rs.8,150/-. The said judgment and decree of the Appellate Authority is under challenge before this Court.
7.Heard Mr.N.G.R.Prasad, learned counsel appearing for the petitioner and Mr.C.A.Diwakar, learned counsel appearing for the respondent.
8.Mr.N.G.R.Prasad, learned counsel would submit that the only dispute between the parties is with regard to the market value fixed by the Authorities below. He contended that the petitioner/landlady marked Ex.P6 sale deed in respect of the very same petition mentioned property to prove the market value. The market value shown in the said document cannot be denied or disputed by the respondent being a party to the said document. The learned Rent Controller taken the said fact and also taken note of the guideline value as Rs.700/- and consequently, fixed the fair rent correctly. The Appellate Authority erroneously reversed the finding of the Rent Controller. The petitioner had examined herself as P.W.1 and Revenue Inspector as P.W.2 and Engineers as P.Ws.3 and 4. He relied on 1996(1) CTC 567,M/s.Maya Applicances and Control Equipment rep. By its Partner Varadarajan and another v. A.Sulochana Reddy and another, to contend that P.W.D rate has to be taken while fixing the fair rent.
9.Per contra, Mr.C.A.Diwakar, learned counsel appearing for the respondent submitted that the market value shown in Ex.P.6 sale deed dated 13.01.1999 was only an estimated value and did not reflect the actual market value. It is his further contention that the petitioner has not examined parties to the said document under Ex.P6 to prove its contents. She has not given any explanation as to how the said value has been arrived at under Ex.P6. He further submitted that for valuation of the building, no materials was placed by the landlady. R.W.1 had spoken that the market price shown under Ex.P6 is a fancy price. Thus, the learned counsel submitted that the Rent Controller was not justified in relying on Ex.P6 for fixing the fair rent. In support of his submission, he relied on a decision reported in 2007(3) CTC 262, Greaves Ltd., v. V.S.Raghavan and another.
10.Upon hearing both sides and considering the materials placed before this Court and perusing the orders passed by both authorities, it is seen that the only dispute between the parties is in respect of fixation of the market value of the petition premises. In all other aspects, no argument was advanced or dispute was raised by both sides.
11.The petition mentioned property is at Door Nos.10, 10-Bis and 12 and presently bearing Door No.14 situated in Romain Rolland Street at Pondicherry along with open cement floor land forming part of the building. The total area of the land is 1,181 Sq.mtrs. with a built up area of 796 Sq.mtrs. These details are shown in the schedule of the property in H.R.C.O.P.No.100/2000. There is no dispute about the extent and location of the said property.
12.It is the contention of the landlady that the demised premise is situated in the heart of the commercial area of Pondicherry and the rental value of the building had increased considerably high. It is her case that the respondent is running a Departmental Store in the said premises. It is admitted by the respondent that the petition premises is in close proximity to the Ashram and was not expected to become available in future for sale and therefore, they were willing to pay such a high price for perpetuating their possession and enjoyment of the premises as full owners instead as tenants.
13.Going by these pleadings of the parties, one thing is very clear that the petition mentioned premise is located in a commercial area where the likelihood sale of a property was not often expected to become possible. Therefore in order to arrive at the market value of the property, sample sale deeds of properties situated nearby or adjacent thereto are usually marked more particularly in respect of the relevant period. But in this case, the landlady marked Ex.P6 sale deed dated 13.01.1999, in support of her claim which is in respect of the very same premises. Through the sale deed, the respondent purchased 4/5th undivided share from other sharers. It is not in dispute that the market value of the said property was shown therein as Rs.1,76,00,000/-. When the respondent being the purchaser and having shown the market value as Rs.1,76,00,000/- under Ex.P6, I failed to understand as to how the very same person can deny such value shown therein by saying that it was only a fancy price and not reflecting the actual market value.
14.It is contended that the petitioner has not examined any party to the said document. Normally, such contention would have some force if parties to Ex.P6 are totally third parties to the proceedings. On the other hand, in this case, it is the respondent who is the purchaser under the said document is not denying or disputing the execution of Ex.P6. Once the execution is admitted and the respondent being party to the document, then the recitals and contents of the same has to be taken as proved as true statement unless the respondent brings any contra materials. Admittedly, in this case, no other sample sale deed was filed by the respondent to disprove the claim of the landlady or to show that the value shown under Ex.P6 is a fancy price. When the sale deed under Ex.P6 was effected on 13.01.1999 and the R.C.O.P. having been filed on 30.11.2007 nearly after two years from the date of sale deed, certainly, the market value would have raised further and therefore, the finding of the learned Rent Controller by fixing the market value of the demised premises as Rs.1,58,82,598/- seems to be very reasonable and supported by the respondent's owned document under Ex.P6. It is also found by the learned Rent Controller that Ex.P6 does not show that the sale consideration shown therein is different from the market value. It is further observed that the guideline value of land in which the building was situated fetches Rs.700/- per Sq.ft.
15.Considering all these facts, the learned Rent Controller arrived at the market value as stated supra and consequently, fixed the fair rent at the rate of Rs.1,58,825.98 per month out of which the petitioner's share was fixed as Rs.31,765/-.
16.When the order of the Appellate Authority is perused, it is seen that the Appellate Authority has rejected the contention of the landlady by holding that the landlady has not filed any other document to prove the market value except the estimated value of the respondent under the sale deed dated 13.01.1999. He further observed that the respondent/tenant has also not produced any other documents to prove the value of the site. By observing that as both parties did not adduce evidence or furnish proper materials for determining the fair rent for the building, the Appellate Authority has arrived at the guideline value as Rs.364/- per Sq.ft. and consequently, arrived at the value of the land as Rs.40,68,418/-. For arriving at such figure of Rs.364 per Sq.ft., the learned Appellate Authority relied on the statement of P.W.2.
17.The relevant finding of the Appellate Authority in this aspect is extracted hereunder for appreciating the fact that such finding is totally erroneous and unsustainable:
"Similarly, P.W.2 has given evidence that the site value in the area for the year 2002-03 was Rs.700/- per square feet and he has given evidence that from his memory, he could state that in the year 1999-2000, the value of the site in that area was Rs.364/- per square feet. Therefore, the site value in that area for the year 1999-2000 is determined at Rs.364/- per square feet and it is for the area of the site occupied by the building."
18.Thus, it is manifestly clear that the Appellate Authority had taken the statement of P.W.2 as the conclusive proof to fix RS.364/- per square feet as guideline value, in total ignorance of the fact that such figure was given by P.W.2 as the statement made from his memory without there being any material evidence. On the other hand, the very same P.W.2 had admitted that the guideline value is Rs.700/- per square feet for the period 2000-01. The perusal of the evidence of P.W.2 would show that the said guideline value of Rs.700/- was referable only to the year 2000-01. But the Appellate Authority has wrongly noted as if it was for the period 2002-03. Admittedly, the fair rent application was filed on 30.01.2000 and therefore, the guideline value shown as Rs.700/- for the period 2000-01 alone is the correct value which the Appellate Authority has failed to consider. Even otherwise, whether the guideline value can be taken for determination of the market value of the property is an another question which came up for consideration for the Hon'ble Full Bench of this Court reported in 2006 (2) CTC 433, SAKTHI & CO, THROUGH ITS PARTNER, VEERANAN v. SHREE DESIGACHARY. After analysing various decisions of the matter, the Hon'ble Full Bench has held that the guideline value contained in the Basic Valuation Register, maintained by the Revenue Department or the Municipality for the purpose of collecting stamp duty, has no statutory base or force and it cannot form a foundation to determine the market value. The issue before the Hon'ble Full Bench in that case was arising out of Section 4 of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 with regard to fixation of fair rent. Thus, from the decision of the Hon'ble Full Bench, the finding rendered by the Appellate Authority in fixing the market value based on the guideline value spoken about to by P.W.2 is not sustainable.
19.The learned counsel for the respondent contended that the petitioner had not given any explanation as to how such value was shown in Ex.P6 sale deed. Certainly, it is not for the petitioner to show as to how such value was shown in the said document especially when it is the respondent's own document and therefore, it is for the respondent to show as to how the value shown in the document is not correct value. To prove the same, the respondent had not marked any other document or sample sale deed for the relevant period. Therefore, the value shown in Ex.P6 has to be taken as true market value of the property and the contention of the respondent that it is a fancy price, has to be rejected since the recitals under Ex.P6 do not indicate anywhere to that effect.
20.Learned counsel for the petitioner relied on 1996(1) CTC 567 (cited supra) to contend that for determining the cost of construction, P.W.D. rate has some relevancy. As the sole dispute in this matter is with regard to the valuation of the land and when the same is proved by landlady by marking Ex.P6, in my considered view, no other better document can be relied on for arriving at the valuation of the market value. Therefore, in my considered view, the said decision is not relevant for the case in hand.
21.Learned counsel for the respondent relied on 2007(3) CTC 262, (cited supra) to contend that mere production and marking of document by consent is not sufficient to prove its contents and for proving of such contents, evidence of person to the document is necessary. A perusal of the facts of the said case would show that the documents marked therein were not in respect of the very same property. On the other hand, in this case, as I already pointed out supra, Ex.P6 relates to the very same property and the respondent herein is a party to the said document. Therefore, I am of the view that the above said decision relied on by the learned counsel for the respondent is factually distinguishable and as such cannot help him in any manner.
22.Accordingly, I find that the order passed by the Appellate Authority is totally unsustainable as the reasoning stated therein are against the facts and circumstances of the cases. Accordingly, the civil revision petition is allowed and the order of the Rent Controller is restored. No costs. The connected miscellaneous petitions are closed.
vri To
1.The Principal District Judge, Pondicherry.
2.The Rent Controller, Pondicherry