Madras High Court
Voora Mahalakshmamma vs C. Veera Reddy on 18 February, 1994
Equivalent citations: AIR1995MAD200, AIR 1995 MADRAS 200, (1995) 1 MAD LW 82, (1995) 2 RENCJ 261, (1995) 1 RENCR 607, (1994) 2 MAD LJ 383
ORDER
1. This Revision Petition is filed against the judgment and decree dated 24-7-1986 made in R.C.A. No. 50 of 1986 on the file of the VIII Judge, (Appellate Authority) Court of Small Causes, Madras.
2. The landlady is the petitioner. The landlady filed an application under Section 4(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent, in relation to a portion of the building (First Floor) of No. 29, Varada Muthiappan Street, George Town, Madras-1 which was let out to the respondent on a monthly rent of Rs.340/-. The petitioner landlady claimed Rs.868/'- as a fair rent. The respondent-tenant opposed the petitioner on several grounds and the Rent Controller fixed the fair rent as Rs. 3S3/- by his order dated 8-4-1985. Aggrieved by the said order of the Rent Controller, the landlady filed the appeal R.C.A. No. 50/1986 and in that appeal, the rent was enhanced to Rs. 365/- per month.
3. Aggrieved by the appellate order dated 24-7-1986 made in R.C.A. No. 50/ 1986, the petitioner landlady has preferred this Revision Petition.
4. It is contended by the learned Counsel for the petitioner that both the Rent Controller as well as the Appellate Authority, have erred in fixation of quantum of fair rent under Section 4(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as the Act). The learned Counsel for the petitioner in particular, referred to Section 4(4) of the Act, which is as follows:--
"4(4) The total cost referred to in subsection (2) and sub-section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of the fair rent;
Provided that while calculating the market value of the site in which the building is constructed the Controller shall take into account only that portion of the site on which the building is constructed and of a portion up to fifty per cent thereof of the vacant land if any appurtenant to such building the excess portion of the land, being treated as amenity;
Provided further that the cost of provision of amenities specified in Schedule 1 shall not exceed-
(i) in the case of any residential building, fifteen percent; and
(ii) in the case of any non-residential building, twenty five percent, of the cost of the site in which the building is constructed and the cost of construction of the building as determined under this Section."
The learned Counsel for the petitioner contended that both the Rent Controller and the Appellate Authority held in construing the term, 'building' to include 'the entne building'; Whereas as per the definition of 'building' given in Section 2(2) of the Act, "(2) "Building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes."
So, upon the facts and circumstances of the case, part of the building alone ought to have been taken into consideration for calculating the market value. He also pointed out that it is an admitted case that the first floor was constructed in 1978 and the ground floor was constructed more than 25 years back. Therefore, landlady was entitled to depreciation calculated for five years as per Schedule II.
5. On the other hand, Mr. Mohan the learned Counsel for the respondent contended that there is no error with regard to the calculation of the market value both by the Rent Controller as well as the Appellate Authority, and the market value ought to be considered for the entire building irrespective of the age when the first floor was constructed.
6. There is force in the contention of the learned Counsel for the petitioner that the definition of the 'building' given in Section 4(4) of the Act, should not be given a common parlance meaning but meaning given under, Section 2(2) of the Act. In the Buildings (Lease and Rent Control) Act, Section 2(2) defines "buildings" as follows:
"2.(2) 'building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes
(a) the garden, grounds and outhouses, if any, appurtenant to such buildings, hut or part of such building or hut and let or to be let along with such building or hut, but does not include a room in a hotel or boarding house;
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house."
The definition of building under Section 2(2) of the Act includes a part of a building and as such a pan of a building is building and therefore, when an application is filed for fixation of fair rent for a part of a building and if both the ground floor and the first floor are not constructed on the same date, and there (sic) (are) different dates in construction of different portion of the building or a flat then the cost of construction of that portion or a flat alone should be taken into account as per the definition of the building given in Section 2(2) of the Act. Therefore, there is an infirmity in the order of both the Rent Controller and the Appellate Authority with regard to the fixation of the age of the building and the calculation of the rate of depreciation as per Schedule II, It is also an admitted case that the ground floor was constructed more than 25 years back and the first floor was constructed in August, 1978. The petitioner-landlady herself has claimed a depreciation at the rate of 5%.
7. I am unable to accept the contention of Mr. Mohan, the learned counsel for the respondent to the effect that the entire building irrespective of the date of construction of the first or second floor should be taken into account for fixation of fair rent/market value as the same will go against the definition of the 'building' given in Section 2(2) of the Act;
The learned counsel for the respondent referred a decision in Sivagnanam v. Everest Boarding and Lodging, (1969) I Mad LJ 101 wherein Veeraswami, J. as he then was, has observed as follows:--
"Mr. Mathrubutham for the respondent argues that because the first, second and third floors are outside the purview of the Act in the computation of fair rent it would not be competent for the Rent Controller to lake into account the first, second and third floors and that the entire market value of the site on which the ground floor stands should be taken into account in fixing the cost of the building. Apart from the fact that the arguments involves a gross injustice, I am inclined to think that the Court is not driven to accept that construction. It is a principle of interpretation in regard to jurisdiction of judicial and quasi judicial forums that, if in order to give relief, which its competence it is necessary to touch upon and deal with a matter outside the purview of the forum it would be quite lawful to deal with such a matter as ancillary to the jurisdiction vested in the forum in respect of the relief within its jurisdiction. Further, the language, "the market value of that portion of the sete on which the residential building is constructed" has to be construed in a liberal way and building in that expression is the entire building, not merely that part of the building which is within the purview of the Act. If a part of a building is within the purview of the Act and the rest of it is outside it, and the Rent Controller is called upon to fix a fair rent for ground floor necessarily the entire building will have to be valued and for doing so, in my opinion, the Rent Controller will have jurisdiction, in order to fix the fair rent for the portion within the purview of the Act, he has necessarily to take the entire building which is in an ancillary matter."
I am unable to accept the contention of the learned Counsel for the respondent as the ruling of the above case will not apply to the facts and circumstances of the present case. The above ruling deals with a case in which some portion of the building namely first, second and third floor were outside the purview of the Act and the entire market value of the site on which the ground floor stood, should be taken into account in fixing cost of the building. In the instant case, it is admitted that the ground floor was constructed 25 years back and the first floor was constructed in August, 1978. For assessing the market value of the building, as the building in the instant case is the first floor, the cost of construction of the first floor alone has to be taken into consideration as per the definition "building" which includes part of a building.
8. The learned counsel for the petitioner filed C.M.P. No. 1956 of 1994 for letting in fresh evidence, viz., the assessment order of the property concerned issued to petitioner dated 19-11-1993. The learned counsel for the respondent filed a counter objecting to the receipt of additional evidence at this stage of Revision Petition. The learned counsel for the respondent contend that no additional evidence can be let in at the stage of revision. On the other hand, the counsel for the petitioner contended that Section 25 of the Act is wide and additional evidence can be let in even at Revision stage. I am unable to accept the contention of the learned Counsel for the petitioner that additional evidence can be let in at Revision stage. It is well settled that no additional evidence can be let in at the stage of revision. Even though the wording of Section 25 of the Act is wider than Section 115 of the Civil Procedure Code, yet I am of the view that no additional evidence can be let in at Revision Stage. Therefore, C.M.P. No. 195 of 1994 is dismissed.
9. The learned counsel for the petitioner referred to a decision reported in M/s. Variety Emporium v. V.R.M. Mohamed Ibrahim Naina, (1985) 1 Mad LJ (SC)-l (AIR 1985 SC 207) wherein, the Supreme Court has observed as follows (at pp. 210-211 of AIR):--
"16. No authority is needed for the proposition that, in appropriate cases, the Court must have regard to even is as they present themselves at the time when it is hearing the proceeding, before it and mould the relict in the light of those events. We may, however, draw attention to a decision of this Court in Hasmat Rai v. Raghuriath Prasad, (1981) 3 SCC 103: (AIR 1981 SC 1711): (1981) 3 SCR 605, the ratio of which may be stated thus. When an action is brought by a landlord for the eviction of a tenant on the ground of personal requirement, the landlord's need must not only be shown to exist at the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court, if subsequent events occur which, if noticed would non-suit the landlord, the Court has to examine and evaluate those events and mould the decree accordingly. The tenant is entitled to show, that the need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate Court. In such a situation, it would be incorrect to say that as a decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. The tenants can be precluded from so contending only when a decree or order for eviction haS become final." Justice R. S. Pathak, who concurred with Justice D.A. Desai and Justice Venkataramiah, expressed the same view thus: 'It is well settled now that in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary, the requirement must conlinue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority. That position is indisputable."
There is no dispute regarding the law laid down by the Supreme Court in the abovesaid decision to the effect (Para 16):
"No authority is needed for the proposition that, in appropriate cases, the Court must have regard 10 events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events."
10. In the instant case, the question before the Rent Controller as well as the Appellate Authority was to (ix a fair rent as per Section 4(4) of the Act. Section 4(4) of the Act reads as follows:
"4.(4) The total cost referred io in subsection (2) and sub-section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent:
Provided that while calculating the market value of the site in which the building is constructed the Controller shall take into account only that portion of the site on which the building constructed and of a portion up to fifty per cent thereof of the vacant land if any appurtenant to such building the excess portion of the land, being treated as amenity;
Provided further that the cost of provision of amenities specified in Schedule I shall not exceed-
(i) in the case of any residential building, fifteen percent; and
(ii) in the case of any non-residential building, twenty five percent, of the cost of site in which the building is constructed and the cost of construction of the building as determined under this Section."
Section 4(4) specifically states that the fair rent should be fixed on the date of the application. Therefore, the fair rent on the date of application alone has to be taken into account and the market value has to be fixed for the purpose of calculation of the fair rent on the date of the filing of application and not with reference to any subsequent date. In this connection, the Supreme Court in the above ruling has observed that (AIR 1985 SC 207 at p. 211):
"ejectment of tenant on the ground of personal requirement under a statute controlling eviction of tenant, unless statute prescribe to the contrary, the requirement continue to exist on the date the proceeding is finally disposed of either in appeal or revision."
In view of the above, there is no force in the contention of the learned counsel for the petitioner that market value of the property given in subsequent assessment of Corporation of Madras dated 29-11-1993 should be taken into account for fixing fair rent.
11. In view of the infirmities in the order, passed both by the Rent Controller and the Appellate Authority referred to above, this Revision Petition is allowed and the matter is remitted back to the Rent Controller to the limited extent of fixing the fair rent for the purpose of calculating depreciation as per Schedule II of the Act taking into account the age of the first floor as five years viz., the date of construction being in August, 1978. The Rent Controller has only to assess the quantum of rent as indicated above without letting any fresh evidence by either of the party.
12. Upon the facts and circumstances of the case, there shall be no order as to costs. C.M.P. No. 1956/1992 is dismissed.
13. Revision dismissed.