Madras High Court
Nandanam Colony Kudiyiruppor Nala ... vs The State Of Tamil Nadu, Represented By ... on 15 June, 2006
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, S.R. Singharavelu
JUDGMENT M. Karpagavinayagam, J.
1. Appellants/petitioners are the tenants of Tamil Nadu Housing Board, respondents herein. A G.O. in G.O.Ms. No. 210, Housing and Urban Development (HB 5(1) Department, dated 21.08.2002, has been issued by the Government of Tamil Nadu, on the basis of a resolution passed by the Housing Board, for enhancement of rent at Rs. 5/- per sq.ft. for all the Board's rental houses/flats in Chennai City; Rs. 3/- per sq.ft. for all the Board's houses/flats in moffusil area and Rs. 3/- per sq.ft. for all the single person quarters, situated in Chennai City and moffusil area.
2. The tenants, aggrieved by the exorbitant enhancement of rent, filed writ petitions before this Court, where the learned single Judge passed an order of stay of eviction, subject to the condition that the tenants must pay the enhanced rent, pending disposal of the writ petitions.
3. Not satisfied with the interim order, all the writ petitioners filed writ appeals before a Division Bench of this Court, assailing both the order of the learned single Judge and G.O.Ms. No. 210, dated 21.08.2002.
4. The Division Bench, by an order dated 18.03.2004, after hearing the counsel for the parties, thought it fit to appoint an Advocate Commissioner, to ascertain all the facts, after hearing the parties concerned with reference to enhancement of rent, and to place his report before the Division Bench.
5. Pending Writ Appeals, the appellants/petitioners were directed to pay rent for the houses and flats occupied by them in the city of Chennai at the rate of Rs. 2.50 per sq.ft. and in respect of houses and flats, situated outside the city of Chennai i.e., moffusil area, at the rate of Rs. 1.50 per sq.ft. and in cases where the rent fixed by the Housing Board is Rs. 3/- per sq.ft. i.e., single person quarters, such tenants should pay at the rate of Rs. 1.50 per sq.ft. and that the said payment must be made from 01.01.2004.
6. Accordingly, Mr.V.K.Thirunavukkarasu, a retired District Judge, was appointed as Advocate Commissioner and he was directed to hear all the parties and submit a report within four months from the date of the said order.
7. As directed by this Court, the Advocate Commissioner conducted enquiry and inspected the houses and flats, both in Chennai city and moffusil area, and, ultimately, placed a report dated 14.03.2006, before this Court, suggesting for fixation of appropriate rent.
8. We have heard the learned Counsel for the appellants/petitioners and also the learned Advocate General, appearing for the Government/Tamil Nadu Housing Board.
9. In the early 1950's, the City Improvement Trust was given the task of providing housing accommodation to various classes of persons, to meet the housing shortage, existing in the city. The first scheme envisaged the construction of houses in CIT Nagar and in Nandanam Colony. The aim was to provide a fully developed colony, wherein families belonging to lower income groups could reside as a small community. The intention of the Trust was to rent these buildings to the public on no profit no loss basis. The Trust requested the Government for permanent assignment of land. Accordingly, land was assigned by the Government in the year 1957.
10. The Government, by G.O.Ms. No. 8, Housing and Urban Development Department, dated 05.01.1993, permitted the Housing Board, to enhance the rent by 5% annually for the residential buildings and 10% annually for the non-residential buildings effective from 01.09.1991.
11. Admittedly, there was no protest to the said G.O. at that time. Pursuant to the above G.O., the rent payable by the members of the appellants/petitioners has been increased annually from 01.09.1991 at the rate of 5%.
12. On 26.07.2001, the Housing Board convened a meeting and passed a resolution, to request the Government to pass a G.O., for enhancement of rent to the Board's rental houses, since the annual expenditure incurred for maintenance of the rental houses, water tax etc. is more than the annual rent, collected by the Board from its rental apartments.
13. After passing the resolution, the above proposal was sent to the Government. The Government, by G.O.Ms. No. 210, dated 21.08.2002, passed orders, giving approval for the proposal of the Tamil Nadu Housing Board, and enhanced the rent at Rs. 5/- per sq.ft. for all the Board's rental houses/flats in Chennai city; Rs. 3/- per sq.ft. for all the Board's rental houses/flats in moffusil area and Rs. 3/- per sq.ft. for all single person quarters, situated in Chennai City and moffusil area.
14. Challenging the same, the tenants, in the form of associations and societies, filed several writ petitions before this Court, for issuance of a writ of certiorarified mandamus, to quash G.O.Ms. No. 210, dated 21.08.2002, increasing the rent of the houses/flats, belonging to the Housing Board, and for consequential directions to levy the rent as per the existing formula.
15. However, the learned single Judge, as an interim measure, passed an order of stay of eviction, subject to the condition of payment of the revised rent. Not satisfied with that, with reference to the condition of payment of the revised rent, the tenants have filed writ appeals. The Division Bench, after entertaining the writ appeals, by the order dated 18.03.2004, was pleased to appoint the Advocate Commissioner to go into the factual aspects and submit a report to this Court, suggesting the amount to be fixed, as the appropriate revised rent. Accordingly, Mr. V.K.Thirunavukkarasu, Advocate Commissioner, filed a report, dated 14.03.2006.
16. Learned counsel for the Housing Board was directed to take a copy of the report and furnish the same to all the counsel concerned. Accordingly, copies were furnished to all the counsel and the counsel were permitted to file their objections, if any, with regard to the report, which are also filed.
17. On hearing the counsel for the parties and also on going through the relevant records, including the report of the Advocate Commissioner, it is clear that there is no serious challenge for the enhancement of rent, but the only contention by the counsel for the appellants/petitioners is that the rent fixed in the report is high and, even if it is accepted, it could be collected prospectively.
18. On this aspect, we have heard Mr. N.R.Chandran, learned Advocate General.
19. At this juncture, it would be appropriate to refer to the interim order, dated 18.03.2004, passed by the Division Bench. Paragraphs 3 to 7 of the said order read as follows:
3. In a petition of this nature, it is not possible for the Court to embark on investigation the facts. On that ground, however, we cannot throw the petitioners out of court having regard to the fact that the respondent is a public body, which has a duty to act non-arbitrarily. We, therefore, have considered it fit to adopt the course, which the Supreme Court adopted in the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. (JT 2004 (1) SC 232), namely, to appoint a Commissioner to ascertain all the facts after hearing the concerned parties and place his report before us.
4. It is pointed out by the learned Advocate General that though the rental was revised by the Board more than three years back, the petitioners have been continuing to pay rent only at the old rate. He, therefore, submitted that pending the enquiry by the Commissioner and the submission of his report, an adhoc amount be fixed by this Court, which the petitioners may be called upon to pay at least from 1st January of this year. We consider this submission to be reasonable.
5. Taking note of all the factors, we direct the petitioners to pay rent for the houses and flats occupied by them in the city of Chennai at the rate of Rs. 2.50 per sq.ft. in cents where the rate fixed by the Board is Rs. 5/- per sq.ft. from 1st January of this year and in respect of housing and flats situated outside the city of Chennai at the rate of Rs. 1.50 per sq.ft. from 1st of January of this year. In the city of Chennai, in cases where the rent fixed by the housing board is at Rs. 3/- per sq.ft., such tenants will pay at the rate of Rs. 1.50 per sq.ft. from 1st January of this year. Needless to say the payment so made will be liable to be adjusted in the light of the report that the Commissioner is to submit and the further direction this Court would give after considering the report and after hearing the concerned parties.
6. We also make it clear that the ultimate rent that may be fixed after considering the report could be made applicable from the time the housing board chose to revise the rate, and the enforcement of which has been stayed by this Court at the instance of the petitioners. That aspect will be covered by such direction as the Court may give after considering the report.
7. Mr.V.K.Thirunavukkarasu is appointed as Commissioner for this purpose. He shall give opportunity to all the petitioners as also to the housing board to place the respective view points and such materials as they choose to place in respect of their respective stand. It will not be necessary for the Commissioner to serve individual notice on the petitioners. He may make the date of hearing known by giving notice to the counsel appearing for the petitioners in these proceedings, list of whose names and addresses are appended to this order. He may also, if he chooses, advertise the date of hearing in a newspaper having circulation in the city of Chennai. Notice shall however be given to the housing board of the dates of haring and it shall be given opportunity to place all the relevant materials before the Commissioner. The necessary formalities required by the Commissioner shall be provided by the Housing Board which shall also deposit in court within four weeks a sum of Rs. 50,000/- being paid to the Commissioner.
20. The above interim order would indicate that pending Writ Appeals, the appellants/petitioners, who have occupied houses and flats in the city of Chennai, shall pay Rs. 2.50 per sq.ft., instead of Rs. 5.00 per sq.ft., as per the G.O., from 1st January,2004. Similarly, in respect of houses and flats situated outside the city of Chennai, the persons, who occupied the same, shall pay Rs. 1.50 per sq.ft., instead of Rs. 3.00 per sq.ft. from 1st January,2004 and in cases of single person quarters in the city of Chennai, such tenants shall pay Rs. 1.50 per sq.ft., instead of Rs. 3.00 per sq.ft., fixed by the Board. It is also mentioned therein that the ultimate rent that may be fixed after considering the report would be made applicable from the time the Housing Board chose to revise the rate.
21. It is represented to this Court that subsequent to the orders passed by this Court on 18.03.2004, some of the associations filed review applications in Review Application Nos. 51 of 2004 and 106 and 107 of 2004 before the First Bench and obtained orders of stay of eviction on 29.09.2004 and 25.08.2004 and those persons have not paid the amount, as per the order passed by the Division Bench on 18.03.2004.
22. Let us now consider the report. The report filed by the Advocate Commissioner is quite comprehensive. A perusal of the report, covering several pages, would indicate that the Advocate Commissioner conducted enquiry on several dates, namely, 25.01.2005, 11.02.2005, 28.02.2005, 01.03.2005, 18.03.2005, 10.04.2005, 29.04.2005, 17.05.2005, 22.06.2005, 21.07.2005, 09.08.2005, 26.09.2005, 19.10.2005, 21.11.2005, 22.11.2005, 14.12.2005, 28.12.2005, 09.01.2006, 24.01.2006, 13.02.2006 and 28.02.2006. He also referred to various aspects on the basis of his inspection and also on the basis of the written submissions made by the learned Counsel for the parties. Ultimately, he came to the conclusion that the enhancement is desirable, in view of the various circumstances. However, he suggested for the reduced rate of rent. The following is the relevant statement, made by the Advocate Commissioner:
All the writ petitioners requested that the rent may be fixed as per the existing norms viz., as per G.O.Ms. No. 8, Dt.5.1.93. It is admitted fact that all the Flats and Houses of Tamil Nadu Housing Board are located in prime areas in Chennai City except Cox Square Colony at Chintadripet.
I have considered the submissions made by the learned Counsel in various writ petitions referred to above and also submissions made by the learned Counsel for Tamil Nadu Housing Board and also law laid down in the case (Jamshed Hormusji Wadia v. Board of Trustees of Port of Mumbai and Anr.).
The following facts are undisputed:
1. Admittedly, the Tamil Nadu Housing Board/City Improvement Trust had let out the premises in question to various individuals on no profit and no loss basis.
2. These tenements were meant for Lower/Middle Income Groups.
3. The rents have not been increased for several years and the present rent collected from the tenants is low as compared to the prevailing market rate collected by private individuals/landlords.
4. There is an increase in expenditure incurred by Tamil Nadu Housing Board on payment of property tax, maintenance charges and administrative charges.
5. On account of manifold increase of expenditure increased by Tamil Nadu Housing Board, Tamil Nadu Housing Board is incurring loss which is recurring in nature.
Considering the above admitted facts, taking into consideration of locality and also the purpose for which constructions of tenements made by Tamil Nadu Housing Board, I am of the considered opinion that the following increased rate of rent could be fixed:
a) The increased rate of rent may be fixed at Rs. 2.50 per sq.ft. in respect of flats in City of Chennai except at Cox Square Colony at Chintadripet, since all flats are situated in prime area in the City of Chennai.
b) The increased rate of rent may be fixed at Rs. 1.75 per sq.ft. for Cox Square area, since it is situated adjacent to slum area and Coovum River.
c) The increased rate of rent may be fixed at Rs. 3.00 per sq.ft. for all individual houses in Chennai city.
d) The increased rate of rent may be fixed at Rs. 1.50 per sq.ft. for moffusil area.
23. In the light of the undisputed facts, as narrated in the Advocate Commissioner's report, we are of the view that most of the suggestions made by the Advocate Commissioner, with regard to fixation of rent, are appropriate and acceptable. However, the report needs some change, in the light of the circumstances, shown by the counsel for the appellants/petitioners. Therefore, the suggestions made by the Advocate Commissioner have been accepted, to the extent indicated below:
(i) The increased rate of rent shall be fixed at Rs. 2.50 per sq.ft. in respect of flats in City of Chennai, except at Cox Square Colony at Chintadripet, since, as mentioned by the Advocate Commissioner, all flats are situated in prime area in the City of Chennai.
(ii) The increased rate of rent shall be fixed at Rs. 1.50 per sq.ft. for Cox Square area, since it is situated adjacent to slum area and Coovum River.
c) The increased rate of rent shall be fixed at Rs. 3.00 per sq.ft. for all individual houses in Chennai city.
d) The increased rate of rent shall be fixed at Rs. 1.50 per sq.ft. for moffusil area.
24. Though the order dated 18.03.2004 shows that the ultimate rent that may be fixed after considering the report could be made applicable from the time the Housing Board chose to revise the rate, namely, 21.08.2002, it would be appropriate to pass an order that the rent fixed, as mentioned above, could be directed to be made applicable from 1st January,2004, as in the interim order, passed by the Division Bench on 18.03.2004, in view of the request made by the counsel for the appellants/petitioners. Hence, it is, accordingly, ordered. Tamil Nadu Housing Board is directed to collect arrears from the tenants, by giving reasonable time.
25. We have already passed an order, dated 04.04.2006, relating to additional remuneration of Rs. 1.00 lakh, to be paid to the Advocate Commissioner, separately. Therefore, the Advocate Commissioner is permitted to withdraw the said amount, as it has been deposited with the Registry by the Board.
26. We record our appreciation, for the services rendered by Mr. V.K. Thirunavukkarasu, Advocate Commissioner.
27. Registry is directed to send a copy of this judgment to the Advocate Commissioner.
28. Writ Appeals, Writ Petitions and Review Applications are disposed of accordingly. No costs. Consequently, the connected W.A.M.Ps. and W.P.M.Ps. are closed.