Madras High Court
K.Muthuramalingam vs Mrs.Kalyani Ragunathan on 18 June, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:18.06.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD. No.3526 of 2010 K.Muthuramalingam ... Petitioner ..Versus.. Mrs.Kalyani Ragunathan ... Respondent Prayer: This Civil Revision Petition has been filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent) Control Act 18 of 1960 as amended by Act 23 of 1973 and Act 1 of 1980 against the Judgment and decree passed in R.C.A.No.1087 of 2005 dated 22.03.2010 by the learned VIII Judge, Court of Small Causes at Chennai, (Rent Control Appellate Authority), confirming the Fair rent fixed in R.C.O.P. No.172 of 2004 dated 02.08.2005, passed by the learned XV Judge, Court of Small Causes at Chennai, (Rent Controller). For Petitioner : Mr.Ashok Menon For Respondent : Mr.V.Lakshminarayanan for Mr.L.Damodaran O R D E R
This revision is directed against the concurrent findings of the Rent Control Appellate Authority in RCA.No.1087 of 2005 dated 22.03.2010 in confirming the fixation of fair rent done by the Rent Controller in RCOP.No.172 of 2004 dated 02.08.2005.
2. The Revision Petitioner herein was the respondent (tenant) and the respondent herein was the petitioner (landlord) before the learned Rent Controller.
3. The case of the petitioner before the Learned Rent Controller would be as follows as:
a) The petitioner is the absolute owner of the premises bearing Old No.7, New No.13, Veerabadran Iyer Street, Nungambakkam, Chennai 600 034. In the said house premises, the respondent herein is a tenant in the rear side of the property bearing Old No.7, New No.13, Veerabadran Iyer Street, Nungambakkam, Chennai 600 034, more fully described in the Schedule hereunder, herein after called the Schedule Mentioned Property. The monthly rent payable by the respondent is Rs.750/- exclusive of electricity charges and the premises have been let out for the residential purpose only. The monthly rent has to be paid on or before the 5th of every succeeding English Calender month. The schedule mentioned property is situated in the valuable locality. The premises is situated just opposite to Valluvar Kottam, near to Independence Day Park, Bus stand, Market, Bank, School, Hospital and other commercial establishments are available in the locality of the schedule mentioned property. In other words, the Schedule Mentioned Property is the residential area bounded by commercial area. The value of the site in that area would fetch not less than 45.00 Lakhs per ground. If the value of the land is taken into consideration, the fair rent of the property will come around Rs.12,170/- per month.
b) The petitioner has filed RCOP.No.574 of 2001 for eviction on the ground of owner's occupation on the file of X Judge, Small Causes Court, Chennai and the same is pending. The details of the specification of the building and the amenities enjoyed by the respondent in the RCOP is mentioned. The petition premises is not exempted under section 30 of any of the provisions of the Tamil Nadu Buildings (Lease ad Rent Control Act, 1960). Therefore, the petitioner prays to fix Rs.12,170/- as fair rent of the property bearing Old No.7, New No.13, Veerabadran Iyer Street, Nungambakkam, Chennai-600 034.
4. The objections raised by the respondent/tenant would be as follows:
a) The respondent is a tenant under the petitioner in the out house situated in the rear side of the premises at Old No.7, (New No.113) Veerabadra Iyer street, Nungambakkam, Chennai-600 034 and that the monthly rent payable is Rs.750/- exclusive of electricity charges and also that the premises has been let out for the residential purposes. This respondent denies the averments that the monthly rent has to be paid on or before the 5th day of the succeeding English Calendar month, but would like to make it clear that there was no such specification with each months rent becoming payable only on or before the last day of the succeeding English Calendar month.
b) The property is situated in valuable locality and that the same is just opposite to Valluvar Kottam near the Independence Day Park. This respondent would like to make it clear that the petition premises is far away from the Independence day Park and that Bus stands, markets, banks, schools, hospitals and other commercial establishments are not available in the locality. This respondent would like to make it very clear that the petition premises is situated in a purely residential area and there is no question of being bounded by any commercial area.
c) This respondent further denies that the value of the land in the area would be Rs.45,00,000/- per ground, and would like to make it very clear that the value of the ground could not be more than Rs.6,00,000/- per ground by any yardstick.
d) This respondent further denies that the fair rent will work out to Rs.12,170/- per month. This respondent admits the filing of R.C.O.P.No.171 of 2001.
e) The details given in paragraph 6 of the petition regarding the age and extent of the building, nature of construction, cost of construction, amenities available etc., are all totally incorrect and are strongly denied. In fact, no water was available in the petition premises for a very long time, on account of the petitioner's deliberate attempt to harass this respondent and the supply of water was made available to the petition premises only through the efforts of this respondent at his own expense. Obviously, therefore, the petitioner cannot claim any increase of the rent on the ground that she has provided the amenity of water supply.
f) Without prejudice to the above, this respondent humbly submits that the fair rent in respect of the premises would be not more than Rs.600/- per month.
5. The learned Rent Controller had conducted an enquiry on the basis of the aforesaid pleadings and had come to the conclusion of fixing the fair rent at Rs.8,535/- per month from the date of the petition and thus allowed the petition.
6. Aggrieved by the said order passed by the learned Rent Controller, the tenant has preferred an appeal in RCA.No.1087 of 2005 questioning the fixation of fair rent, as high. However, the petitioner/landlord had also questioned the said fixation by filing the appeal in RCA.No.1138 of 2005 claiming the same, as low. The learned Rent Control Appellate Authority heard the arguments and came to the conclusion of dismissing both the appeals by holding that the order of the learned Rent Controller made in RCOP.No.172 of 2004 dated 02.08.2005 was correct.
7. The aggrieved tenant, who was the appellant in RCA.No.1087 of 2005, had filed this revision challenging the said order of confirmation passed by the Rent Control Appellate Authority. However, there was no revision preferred by the respondent/landlord.
8. Heard Mr. Ashok Menon, the learned counsel for the revision petitioner and Mr.V.Lakshminarayanan, learned counsel appearing on behalf of Mr.L.Damodaran, learned counsel for the respondent.
9. The learned counsel for the revision petitioner (tenant) would submit in his argument that the Rent Control Appellate Authority did not properly appreciate the evidence and therefore it has held that the fair rent fixed at Rs.8,535/- by the learned Rent Controller was in order. He would further submit that the tenant was inducted to the demised premises for a monthly rent of Rs.750/- for residential purpose and the landlord claimed a sum of Rs.12,170/- towards fair rent in the year 2004 and the fair rent was fixed at Rs.8,535/- which is not in consonance with law. He would also submit that along with the application for fixing fair rent, an application was also filed for eviction of the tenant from the said premises on the ground of demolition and reconstruction. He would further submit that the building was admittedly an old one and therefore, demolition was likely to be ordered, however, it was withdrawn by the landlord. He would further submit that the age of the building was considered to be 10 years old which was not based on documentary evidence upon any documentary proof, but was decided only on assumption. He would also submit that when best evidence has not been produced, adverse inference can be taken note of against the landlord. He would also cite the judgment reported in 1988 (1) Law Weekly 568 (A. Emberumanar Vs. K. Raghavan) in support of his argument.
10. He would further submit that the plinth area of the building was also not proved through documentary evidence which would be very much available with the landlord. The actual plinth area of the building was 453 sq.ft. and the courts below have taken the view that the plinth area was proved to be 460 sq.ft. without production of any sanctioned plan. He would also submit that the same ratio of taking adverse inference can also be applied here. He would further submit that the Rent Controller had not calculated the amenities even though motor was not provided. He would therefore submit that fixing of 4% amenities for Schedule-I is also not sustainable. He would further submit in his argument that the learned Rent Controller had relied upon Exhibits P3, R5, R6 and R7 in fixing the market value of the land and fixed the value at Rs.1,421/- per sq.ft on the basis of Exhibit C1 produced by the witness C.W.1. He would further submit in his argument that the said value given in Exhibit C1 was nothing but the guideline value to be followed by the Sub-Registrar concerned for the calculation of stamp duty and it would not reflect the correct market price of the property. He would also cite the judgment of Full Bench of this Court reported in 2006 (2) CTC 433 ( Sakthi & Co., through its Partner, Veeranan Vs. Shree Desigachary) for the proposition that the guideline value contained in basic valuation register cannot form basis for determination of market value. He would also submit that the bona fide sales between willing buyer and willing seller of the property would only reflect the market value of the property on the particular day. He would therefore submit that the guideline value cannot reflect the market value and that was not considered by the Rent Control Appellate Authority, however, he had simply accepted the version of the learned Rent Controller. He would also submit in his argument that the document produced by the tenant in Exhibits R5 to R7 were not considered. He would also submit that the learned Rent Controller did not see that the appurtenant was not attached to the demised premises, but was attached to the main building which was in the use of landlord and the appurtenant land would not form part of the demised premises since it has not been in possession of the tenant. He would rely upon the description of the scheduled property which has not described the appurtenant portion as part and parcel of the demised property. He would further submit in his argument that the tenant was not permitted to use the said appurtenant portion to keep anything, but the covenant mentioned in Ex.R8 was only the land immediately around the superstructure and not beyond that. He would further submit that the said appurtenant portion was not leased out exclusively to the tenant. The extent of the said appurtenant portion at 1,280/- sq.ft as spoken by PW1 was not in possession of the tenant, since it was not the property leased out to the tenant. He would further submit in his argument that the house let out for the tenant was admittedly an out-house of the main building and it does not contain any open space for having appurtenant, to keep the belongings of the tenant. He would further submit that an asbestos roof shed was converted into a demised building at the back of the main building which cannot have any appurtenant of the main house. He would rely upon the meaning given for an out-house in 'Law Lexicon'.
11. Similarly, he would also explain the meaning of the appurtenant based upon, Law Lexicon as one of the land in question being just in front of the houses though across a narrow land. He would further submit that the upper tenement means pertaining to your building. To rely upon the said meaning, he would submit that the vacant space attached to the main building would be considered as appurtenant to the out house. He would further submit that the extent of appurtenant cannot be used for calculating the value of the land for fixing the fair rent.
12. He would also submit in his argument that the age of the building if considered more than 12 years, the value of the property would be considerably decreased owing to the depreciation and the calculation done for fixing the fair rent would likely to be different. He would also submit in his argument that the value mentioned in Ex.P3 could not be relied upon since it depicts the value of an undivided share in the vacant site and it would not depict the true value of the vacant site. He would further submit that the value of land could be ascertained from Ex.R4 for an extent of 2,746sq.f in the year 2000 which could be arrived for the year 2004 by adopting suitable methods since the guideline value produced by CW1 cannot be relied upon by virtue of the judgment of the Full Bench Judgment of this Court. The property referred to in Ex.R4 was immediately adjacent to the property and the said value should have been adopted by the courts below for fixing the market price. He would also submit that the value mentioned in Ex.P3, the sale deed dated 11.02.2004 was towards a lesser extent and the said value cannot be followed for fixing the value of the land, which is located far away. He would also submit in his argument that the reasons put forth by the Rent Controller for rejecting the said document cannot be sustained and the mere asking for deficit stamp duty for Ex.R4, cannot be considered as an invalid document.
13. He would further submit in his argument that when the landlord was not examined and the document regarding the date of construction had not been furnished, the case of the tenant that the building was aged 25 years should have been considered and the alleged admission said to have been given by RW1 as 12 years old cannot be a good evidence. He would further submit that the correct fact could have been proved only by the production of best evidence, namely, the approved plan of the building. He would also submit that demised premises was an asbestos shed put up as an out house and it has no ceiling beneath the asbestos shed and there was only a cement flooring and how the said premises would get a sum of Rs.8,535/- p.m., as fixed by the courts below. He would further submit that no doors as well as the entrances were fixed with country wood and the appurtenant was not given exclusive possession for the demised premises and therefore the calculation made by the Rent Controller, as approved by the Rent Controller Appellate Authority would not sustain. For the said premises, the best fixation would be at Rs.1,500/- p.m. which is also double the contractual rent so far paid by the tenant. He would further submit in his argument that the permission sought for by him to cut the branches of tree in Ex.R9 would also go to show that there was no appurtenant attached with the demised premies. He would therefore request the Court that the findings reached by the courts below even though concurrent are not in accordance with the evidence adduced in law. He would also submit that both the courts below did not perceive the evidence in proper perspective and therefore it ought to have been considered as perverse. He would further submit that the principles of law laid down by this Court as to the non-reliability of the guideline value of the market price was also not applied by the courts below.
14. He would also submit in his argument that even though concurrent findings were reached by the courts below and if it is against the evidence, it can be interfered by the revision Court. He would rely upon a judgment of the Honourable Apex Court reported in 2000 (1) MLJ 25 (T.Sivasubramaniam and others Vs.Kashinath Pujari and others) in support of his argument.
15. Further, he would also rely upon, yet another judgment of the Honourable Apex Court reported in (2000) II M.L.J. 1 (S.C.) (C.Chandramohan Vs. Sengottaiyan (Died) by L.R's and others) for the same principle.
16. He would also submit that the findings of the Rent Control Appellate Authority even though concurrent, is liable to be interfered and set aside. He would therefore request the court, either to remand the matter or to fix the fair rent in accordance with the principles of law at Rs.1,500/- p.m. and to allow the revision accordingly.
17. The learned counsel appearing for the respondent/landlord would submit in his argument that the learned Rent Controller had carefully analysed the evidence adduced by both the parties and had come to the conclusion of fixing the fair rent at Rs.8,535/- per month which was concurrently upheld by the Rent Control Appellate Authority and therefore, it cannot be interfered. He would cite a judgment of this Court as reported in (2007) 2 MLJ 771 (Subramania Udayar Sons, Salem and Others Vs. Sathyanarayanan and others) for the principle that concurrent judgment cannot be interferred in the revision. He would further submit in his argument that the judgments of the courts below are not tainted with any illegality or irregularity. It cannot also be set aside as decided in judgment of this court reported in (2000) II M.L.J. 119 (Abdulla Sarwar Vs. Tmt. Snehalatha D. Rajendran represented by Power of Attorney Samson S. Devedasan). He would further submit in his argument that the value of the property as relied upon by the tenant in Ex.R6 and R7 could not be approved since no person connected to the said document has been examined to prove those documents. He would further submit in his argument that the fixation of the market value of the property was rightly done by the learned Rent Controller on the basis of the value spoken by CW1. He would rely upon the judgment of this Court reported in (2001) 3 M.L.J. 396 (Susainathan and another Vs. T.Vijayan) in support of his argument. He would also cited a judgment of this Court reported in (2004) 2 M.L.J. 24 (Dr.R.Hari Ramesh Vs. T. Pramod Wilson and others) for the proposition that when the concurrent findings are based on the materials and records, in fixation of fair rent, without any perversity and illegality, cannot be set aside. He would submit in his argument that the decision regarding the age of the building at 12 years reached on the basis of the admission given by the tenant as RW1 is sound. He would further submit that the findings of the learned Rent Control Appellate Authority was concurrent in respect of the area, cost of construction, amenities and depreciation and in reaching such extent of the area, cost of construction amenities and depreciation, there may be not any inference since there was no perversity or illegality in arriving at such conclusions by the Rent Control Appellate Authority.
18. He would further submit in his argument that the value of the vacant site was rightly decided by the learned Rent Controller on the basis of the guideline value since the documents produced by the tenant were not reliable and the document produced by the landlord in Ex.P3 was considered as located away from the said property. He would further submit in his argument that the water supply was referred in the RCOP filed in RCOP.No.2306 of 1999 and therefore, the amenities as calculated by the courts below are perfectly alright.
19. He would further submit in his argument that the appurtenant was an very vast extent of land consisting of 1216 sq.ft and out of that, only 5% was included as it was in the use of the tenant. The excess of other land was treated as amenity used by the tenant for reaching the main road and therefore, the argument advanced on the fixing of the amenity by the court below, cannot be sustained. He would further submit in his argument that if R4 sale deed produced by the tenant has to be followed, since it was executed in the year 2000, atleast 20% of the appreciation ought to have been ordered and if it is considered so, the quantum would be the same as fixed by the courts below. He would further submit in his argument that the guideline value produced by CW1 cannot be simply ignored on the basis of the Full Bench Judgment, since the judgment of Hon'ble Full Bench did not exclude the guideline value in toto. Relying upon the said judgment, he would contend that the guideline value cannot be relied upon as a sole evidence for fixing the market rate, but it can be one of the pieces of evidence. He would further submit in his argument that the basic amenities as referred to in Section 4 (4) of the Act were available with the building, (i.e) Overhead tank, compound wall, electricity, drainage and water supply and therefore, both the courts below have accepted the basic amenities and have allowed the amenities only to an extent of 4% and therefore, it also cannot be interfered. He would further submit that the bore well put up by the tenant by virtue of the order of the Honourable Apex Court was no doubt true, but, it was doubt whether the demised building had benefitted through the bore well with the water supply regularly given. He would therefore, submit that reviving of 10% over the cost of construction of the building for basic amenities is quite appreciable and there is no need for any inference. He would also submit in his argument that even though the evidence of the Engineer was that the building was aged about 25 years, the respondent/tenant admitted in his evidence that the age of the building was 12 years. He would further submit that the said admission given by RW1 would be sufficient proof even though the landlady did not produce the sanctioned plan for the demised premises. He would further submit in his argument that the depreciation calculated at 1% for the said 12 years is obviously a perfect calculation made by the courts below and there is no reasons for interfering with them. The cost of Schedule 1 amenities was rightly fixed at 4%, even though the amenities are more than one. He would further submit in his argument that the guideline value produced before the Courts below was accepted since there was no other document to support the fixation of market value and therefore, the said guideline value adopted by the courts below would not make the orders illegal. He would also submit that the sale deed produced by the revision petitioner in Ex.R4 was dated 15.07.2000 and it was kept as a pending document and therefore, it would not depict the true and correct market value of a vacant site. He would also submit that the opinion given by the Engineer, RW2 in Ex.R7 cannot be relied upon since it was not in accordance with the principles laid down by the Honourable Apex Court. He would further submit that the courts below have discussed the evidence produced before them and had come to a conclusion of fixing the fair rent at Rs.8,535/- p.m. in consonance with the principles laid down under the provisions of Section 4 of the Act and it need not be interfered. He would further submit in his argument that the courts below did not commit any illegality or irregularity in reaching such a concurrent decision and therefore, they need not be interfered and set aside.
20. In support of his argument, he would refer the judgment of this Court reported in 2000 II MLJ 119 (Abdulla Sarwar Vs. Tmt. Snehalatha D. Rajendran represented by Power of Attorney Samson S. Devedasan). He would also cite yet another judgment reported in (2004) II MLJ 24 (Dr.R.Hari Ramesh Vs. T. Pramod Wilson and others) for the same principle. Yet another judgment of this court reported in 2000 (1) MLJ 413 M/s.Akthars, represented by its Proprietor, R.Syed Tajuddin Vs. Hitesh V. Shah was also relied in support of the said principle. He would therefore request the court that there is no necessity for interference with the concurrent finding reached by the Rent Control Appellate Authority and therefore, the Civil Revision Petition may be dismissed by confirming the orders passed by the courts below.
21. I have given anxious thoughts to the arguments advanced on either side.
22. The landlord and tenant relationship in between the parties is an admitted one. The landlord has filed a petition for fixing the fair rent for the demised premises at Rs.12,170/- p.m. The contractual rent for the demised premises was Rs.750/- p.m. excluding electricity and water charges. The demised building is located at the back of the entire house site and it is an outhouse. The main building is situated in the front and a path way on the side of the main building proceeded to reach the outhouse. The said outhouse was constructed with brick and cement mortar and also covered by asbestos ceiling. There could not be any first floor portion. The case of the landlady was not spoken by her by examining herself as PW1. However, she had examined an Engineer as PW1 in order to substantiate her case. According to the evidence of PW1, he did not go inside the demised building and take measurements. He had seen the building from outside and had prepared all particulars as well as the report. On the basis of such evidence, the Rent Control Appellate Authority had come to the conclusion of fixing the fair rent at Rs.8,535/- p.m. However, the respondent/tenant examined himself as RW1 and he also examined his Engineer as RW2. He had also produced the documents to substantiate his case. Despite the non-examination of the petitioner and without relying upon the evidence of Engineers, the learned Rent Control Appellate Authority relied upon certain admissions of RW1 as well as the report of RW2 and had come to the conclusion of relying upon the guideline value as spoken by CW1, a staff from Sub-Registrar office to produce Exhibit C1.
23. The respondent had produced a sale deed of the year 2000, which is marked as Ex.R4. The said property comprised in Ex.R4 is lying adjacent to the demised building. However, a sale deed of the year 2004 dated 11.02.2004 was produced as Ex.P3 through PW1, Engineer which shows the valuation of undivided lands. He would also admit that he did not know about the content which was referring to the undivided right in the vacant site with the building. The Rent Controller as well as Rent Control Appellate Authority had come to the conclusion of non-relying upon Ex.R3 & R4 but relied upon Ex.C1, the guideline value.
24. With regard to the aspect whether the concurrent decision reached by the courts below, I could see that it could be interfered on valid reasons. There is a catena of judgments of this Court reported in 2000 II MLJ 119 (Abdulla Sarwar Vs. Tmt. Snehalatha D. Rajendran represented by Power of Attorney Samson S. Devedasan), (2000) 1 MLJ 413 in between M/s.Akthars, represented by its Proprietor, R.Syed Tajuddin and Hitesh V. Shah and (2004) 2 MLJ 24 (Dr.R.Hari Ramesh Vs. T. Pramod Wilson and others) and 2005 (1) MLJ 25 (T.Sivasubramaniam and Others Vs.Kashinath Pujari and Others). It has been pointed out in 2005 (1) MLJ 25, it is held as follows:
"Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act which confers revisional jurisdiction on the High Court is very wide. Under Section 25 of the Act, the High Court can call for and examine the record of the appellate authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. The words 'to satisfy itself' employed in Section 25 of the Act, no doubt, is a power of superintendence and the High Court is not required to interfere with the findings of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. In the present case, it is found that neither the landlord has set out his need or requirement for the premises for his occupation in his petition nor he led any evidence to show that his need is bona fide. In the absence of such evidence, the Rent Controller and the First Appellate Authority acted contrary to law in allowing the petition of the landlord by directing the eviction of the tenants. In such circumstances, the High Court was fully justified in interfering with the findings of the courts below.
25. It has been categorically held that while fixing the fair rent, if the courts below have concurrently reached the findings, based on the materials on record and there was no perversity or the illegality in the impugned order, no interference is necessary to upset such concurrent finding.
26. Now, we have to see whether the courts below have come to a correct conclusion without any perversity or biased attitude and the judgments both the courts are in accordance with law, so as to see that they are quite in order.
27. As regards the appreciation of evidence, the learned Rent Controller had fixed the age of the building relying upon the admission given by RW1 / tenant in his chief examination that the building was aged about 12 years on the date of petition. It is curious to note that the landlady was not elected herself to be examined nor she produced the sanctioned plan for the building to substantiate that the building was 10 years old. However, the admission given by RW1 that the building was aged 12 years was not at all disputed nor explained in re-examination by RW1. Therefore, the said conclusion reached, regarding the age of the building is quite correct.
28. No doubt, it is true that the water supply was stopped by the landlady to the tenant. The water supply was restored by getting an order from the Honourable Apex Court to dug a bore well and to put up a motor for supplying water. It is quite understandable that the cost for installing or erecting such a bore well and the pump set would be reimbursible from the landlord; The availability of amenity of water supply, electricity and drainage are certainly available to the demised building. Further, for that purpose, calculation of 10% towards basic amenities is also not interferable regarding the schedule (I) amenities.
29. The learned Rent Controller had permitted 4% only for the water supply, Electric motor Pump Set and compound wall. The said percentage is also reasonable and therefore, it is not liable to be revised. As regards the area of construction, the learned Rent Controller has also relied upon the admission given by RW1 that the demised premises is located in a place with A measurement of 460 sq.ft. The Engineer examined by the tenant as RW2 had categorically stated in his report that the building constructed in 453 sq.ft. However, it has been brought to the notice of the Court that the landlord has filed the eviction petition on the ground of own use of occupation in RCOP.No.574 of 2001 produced in Ex.R3, in which, the construction built up was only 400sq.ft.
30. As already pointed out that the landlady did not enter into the box to clarify these things. The Engineer who was examined by the tenant who had visited the demised building had categorically mentioned in his report, Ex.R5 that the area of construction, that is plinth area was 453sq.f. In the said circumstances, the admission given by RW1 is found to be wrong and the Rent Controller ought to have accepted the engineer's report, Ex.R5. In the engineer's report produced on the side of the landlady as Ex.P1, it has been mentioned that the area of the building was 460sq.ft., but he had admitted in cross-examination that he did not go inside the premises and measure the property. Therefore, the said report, cannot be considered as technically a correct report.
31. The report of RW2 produced in Ex.R5 would go to show that the 50% of the built up area was added for the apportioned site area. The tenant was using the vacant site portion to reach his outhouse building. For that, he has calculated 226.5 sq.ft whereas Ex.P1 report would go to show that the vacant site available was 1280 sq.ft and it was also to be considered for admitting 50% of the area in plinth area to reach the correct extent of site for assessment of land value. The said calculation could be shown as wrong when the document produced in Ex.R3 would show that the demised building is located on the south by the main building and vacant space in between ways, West by playground of Karpagavalli Matriculation School: North by: New tank street building and East by: House and ground belonging to C.A.Srinivasan. This description will go to show that the vacant space was not forming part of the demised building. A theory of 50% of the plinth area cannot be considered as quite correct. However, the engineer examined by the tenant as RW2 had considered 50% of the plinth area to be added in construction of the path way leading to the main road through the vacant site. Therefore, adding of 50% was justified, only for the plinth area of 453 as per Ex.R5.
32. The cost of construction was rightly followed at Rs.251/- per sq.ft, even though, it is for an asbestos roof building. Therefore, the calculation made in 460 sq.ft. ought to have been made for 453 sq.ft. and the basic amenities at 10% and the depreciation at 1% for 12 years should have been done by the learned Rent controller.
33. As regards the value of the land, we could see that the extent of land was considered at 690 sq.ft which ought to have been made for 679.5 sq.ft as per Ex.R5. As far as the market value of the land is concerned, the learned Rent Controller has relied upon Ex.C1 after describing Ex.P3 as well as R4 produced by both the parties. The judgment of Full Bench of this Court reported in 2006 (2) CTC 433 (Sakthi & Co., through its Partner, Veeranan Vs. Shree Desigachary) is a clear answer and the relevant passage would run as follows :
1)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. It cannot form a foundation to determine the market value mentioned thereunder in instrument brought for registration.
2)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 would furnish basis to determine the market value. In this case, the guideline value alone has been considered, which, in our view, is illegal.
3)The Rent Controller and the Rent Control Appellate Authority, in the present case, are not right in relying upon the guideline value, maintained by the Revenue Department, for arriving at a fair rent, to be fixed under Section 4 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960.
34. In the aforesaid judgment, this Court had categorically laid down that the reliance placed on the guideline value alone was considered as illegal. As regards the decision reached by the learned Rent Controller which was confirmed by the learned Rent Control Appellate Authority in respect of the market value of the land, they have come to the conclusion that the guideline value produced in Ex.C1 for Veerabadra Iyer St. Nungambakkam as 421 sq.ft. and therefore, the market value was fixed solely as per the guideline value in Ex.C1. The said decision reached by the Rent Controller which was upheld by the Rent Control Appellate Authority are quite illegal. In the light of the judgment of the Full Bench of this Court, when there is illegality in reaching such decision, it has to be set aside as per the judgment of this court. As referred to above, the judgment cited by the learned counsel for the revision petitioner reported in 2000 (1) MLJ 25 (T.Sivasubramaniam and others Vs. Kashinath Pujari and others), it has been categorically mentioned as follows:
5. So far as the second submission is concerned, the language employed in Section 25 of the Act, which confers revisional jurisdiction to the High Court, is very wide. Under Sec.25 of the Act, the High Court can call for and examine the record of the Appellate Authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. The words 'to satisfy itself' employed in Sec.25 of the Act, no doubt is a power of superintendence and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the Courts below. It is also true that the power exercisable by the High Court under Sec.25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. In the present case what we find is that, neither the landlord has not set out his need or requirement for the premises for his occupation in his petition nor he led any evidence to show that his need is bona fide. In the absence of such evidence, the Rent Controller and the First Appellate Authority acted contrary to law in allowing the petition of the landlord by directing the eviction of the tenants. In such circumstances, the High Court was fully justified in interfering with the findings of the courts below. We therefore, reject the second submission of learned counsel.
35. Yet another judgment of the Honourable Apex Court reported in (2000) II MLJ 1 (SC) (C.Chandramohan Vs.Sengottaiyan (Died) by L.Rs. and others) would throw light in this aspect. The relevant passage would run as follows:
11. From a combined reading of clause (i) of Sub-sec. (2), the proviso and the explanation, it is manifest that it is only when the Rent Controller is satisfied that a tenant's default to pay or tender the rent is wilful, that he can order eviction of the tenant. The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional jurisdiction under Sec.25 of the Act, will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings.
36. In the light of the aforesaid judgment, I could understand that the judgment of the courts below are illegal, perverse and not in accordance with the evidence. This court can interfere with the judgment of the courts below as it is a court of superintendence over the subordinate courts. The courts below have merely come to the conclusion of fixing the market value on the basis of the guideline value. The learned Rent Controller, without appreciating the evidence, namely Ex.R3 and without examination of the landlady herself, had accepted the evidence of PW1. The engineer who had not measured the property at all had fixed an area at 460 sq.ft and also accepted 50% of the same as additional area. Thus, the decision reached by Rent Control Appellate Authority accepting the finding of Rent Controller is certainly perverse. At this juncture, it has to be seen whether there is any evidence available for fixing the market value on the basis of Ex.P3 produced by the landlady through her engineer who was not aware of its contents. Ex.R4 was produced by the tenant. Admittedly, the property in Ex.P3 was located far away and the value under Ex.P3 was for an undivided interest in the land as well as the superstructure. Therefore, it cannot be accepted for fixing the value of vacant land. So far Ex.R4 is concerned, it contains the market value for the year 2000, but it is the adjacent property of the demised building. Therefore, the method of calculating the premium could be adopted on the basis of Ex.R4 since the said property is located next to the demised building. If correct premium has been fixed, this court, instead of sending it back to the lower court, can fix the market value of the land, to reach a fair rent.
37. In the judgment of the Honourable Apex Court reported in General Manager Oil and Natural Gas Corporation Limited V. Rameshbhai Jivanbhai Patel & Anr. (2008 AIR SCW 5947), it has been held as follows:
"There is a significant different in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. If the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same".
38. On the basis of the said judgment, when we approach this case, it is certainly an urban property which is located near Valluvarkottam and other places. However, the demised building is located at the far back of the entire premises. If it is valued as the front portion of the road, it would be a different one, but it is located on the back and that portion alone has to be valued for the purpose of fixing the fair rent. Therefore, I am of the view that the 10% premium margin could be adopted safely so as to reach a correct value. When it is adopted for 4 years from 15.07.2000 to February 2004, the date of petition, it would be for 3 years 7 months and the percentage of premium could be 35.5% for it is to arrive at a correct market price on the date of filing of the fair rent petition. If it is applied for the value given under Ex.R4, the actual and correct market value which could be as per Ex.R4 on the date of filing of the fair rent petition during February 2004 would be as follows:
Total extent of site, i.e., 2746sq.ft sold for the value of = Rs.14,50,000/-
Value of one ground (2400sq.ft) = 14,50,000 X 2400 =12,67,297/-
Appreciation of this value by 10% p.a. for 3 years 7 months up to the date of the filing of the petition, February 2004 = 12,67,297 X 35.5+12,67,297 100 = Rs.17,17,187/-
When this value for one ground for the land value is applied and calculated for of 679.5 sq.ft, it comes to Rs.4,86,178.57. Therefore, the market value of the vacant land for the demised building when ascertained through Ex.R4, in the light of the principles laid down by the Honourable Apex Court, it comes to Rs.4,86,178.57. The other findings, except the plinth area reached by the courts below were found in accordance with the evidence produced before them as discussed earlier.
39. The total plinth area which could be calculated was arrived by the learned Rent Controller at 460 sq.ft where as it ought to have been found that it was only 453 sq.ft. When such calculation of the learned Rent Controller was corrected through this extent arrived in accordance with the evidence, I could see that the value of the construction is 453 sq.ft X 251 per sq.ft = 1,13,703/-
40. Adding basic amenities fixed at 10%, it would be Rs.11,370/-. When it is added, the value of the cost of construction would be Rs.1,25,073/- For depreciation at 1% for 12 years, the value would be reduced to Rs.1,12,065/-. When it is added with the value of vacant site reached at Rs.4,86,178.60, it comes to Rs.5,99,881.60/-. When this total value is calculated at 9% for residential building, it comes to Rs.53,989/- and when it is divided by 12 for finding the fair rent for one month, it comes to Rs.4,499/-.
41. The correct fair rent would be Rs.4,499/- and it would not be Rs.8,535/- as fixed by the learned Rent Controller which was accepted by the Rent Control Appellate Authority. Since the learned Rent Controller had erred in pursuing the evidence in accordance with the principles of law, it has become necessary to ascertain the correct value of the land as per the principles of guidelines enacted by this court in the judgment reported in 2006 (2) CTC 433 ( Sakthi & Co., through its Partner, Veeranan Vs. Shree Desigachary), instead of remanding the matter once again to the learned Rent Controller. Therefore, it has become necessary to set aside the orders passed by courts below even though they are concurrent and the revision petition is liable to be allowed and a fair rent has to be fixed at Rs.4,499/- p.m.
42. For the foregoing discussion held above, I am of the considered view that the orders of both Rent Controller as well as Rent Control Appellate Authority are liable to be interfered and modified and the Civil Revision Petition is partly allowed and the fair rent as ordered by the courts below at Rs.8,535/- p.m. is set aside and ordered to be modified at Rs.4,499/- p.m. In view of the modification done in the orders passed by the courts below, there shall be no order as to costs. The Civil Revision Petition is ordered accordingly.
18.06.2012.
Index : Yes/No Internet: Yes/No gv To
1. VIII Judge, Court of Small Causes Chennai, (Rent Control Appellate Authority).
2.XV Judge, Court of Small Causes,Chennai, (Rent Controller).
V.PERIYA KARUPPIAH,J.
gv Pre-delivery Order made in C.R.P.NPD. No.3526 of 2010 18.06.2012