Madras High Court
Hindustan Petroleum vs V.Balasubramaniam (Died) on 11 September, 2013
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.09.2013
CORAM:
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
CRP (NPD) No. 949 of 2003
1.Hindustan Petroleum
Corporation Ltd.,
Post Box No.155,
Bombay.
2.Regional Manager,
Hindustan Petroleum
Corporation Limited,
Cochin. .. Petitioner
Versus
V.Balasubramaniam (died)
1.B.Saravanan
2.B.Venkidusamy
3.Dr.B.Venkateswari
4.Prema Chokkanathan
5.J.Banumathi
6.B.Gobika Rani
7.Secretary,
Government of India,
(Mines and Petroleum)
Union of India,
New Delhi.
8.M/s.Muruga Super Service Dealer,
Hindustan Petroleum Corporation Ltd.,
111A & B, Raja Mills Road,
Pollachi. .. Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and final order of the Rent Control Appellate Authority (Subordinate Court) at Udumalpet dated 29.11.2002 in R.C.A.No.8/1994 confirming the fair and final order of the Rent Controller (District Munsif Court) at Pollachi dated 28.3.1994 in R.C.O.P.No.4/1998.
For Petitioner : Mr.Subramanian
for Mr.M.Vijayan
For Respondent : Mr.P.C.Hari Kumar
ORDER
The deceased V. Balasubramaniam has filed R.C.O.P. No. 3 and 4 of 1990 before the learned District Munsif cum Rent Controller, Pollachi against The Secretary, Government of India, Mines and Petroleum, New Delhi and others. RCOP No. 3 of 1990 was filed under Section 10 (3) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as The Act for additional Accommodation. RCOP No. 4 of 1990 was filed under Section 4 of The Act, for fixation of fair rent. Even during the pendency of the Rent Control Original Petition, the said V. Balasubramaniam died and his legal heirs have been brought on record as Petitioners 2 to 7 in the Rent Control Original Petition, who are respondents 1 to 6 in this Civil Revision Petition.
2. It is contended by the landlord V. Balasubramaniam that originally the petition mentioned premises was let out to M/s. Caltex India Pvt Ltd by executing a lease deed dated 01.02.1972 for a period of five years for carrying on petroleum business which was subsequently taken over by the Government of India by virtue of Act 17 of 1977 read with notification No.G.S.R.963 (E) dated 30.12.1976 whereby the right and interest in the petition mentioned property was transferred to Hindustan Petroleum Corporation. On 25.01.1979, the lease was renewed with Hindustan Petroleum Corporation as per which the second respondent was given right to sub lease the premises in question to its dealers for carrying out petroleum business. The monthly rent was fixed at Rs.550/- and it is payable for one full year in advance. According to the landlord V. Balasubramaniam, the rent at the rate of Rs.550/- was fixed 12 years back and it was not the fair rent as on the date of filing the Rent Control Original Petition. It is further contended that the petition mentioned premises is located in a thickly populated business locality in Pollachi near Gandhi Market. The Pollachi bus stand, hospitals, schools, Cotton Mills and Automobile shops are situated on both side of the petition mentioned premises. A lorry stand is situated just few yards away from the petition mentioned premises. There are also cinema halls, lodging houses, hotels and other commercial establishments situate just near the Petition Mentioned Premises. It is further contended that the petition mentioned premises measures 8 X 10 feet and the walls have been constructed with brick and lime mortar together with RCC roofing. All the four sides of the premises are fitted with glass panes. There are two tanks constructed under ground, one meant for petrol and other for diesel measuring 20 X 20 feet each. According to the landlord, the market value of per square feet of vacant land in the locality costs more than Rs.500/- and considering the same, the rent can be fixed reasonably. The landlord had demanded enhanced rent repeatedly but the same was not agreed to by the Corporation. The deceased landlord also issued a notice on 12.07.1989 claiming enhanced rent for which a reply dated 18.09.1989 was issued containing false and frivolous reasons. It is further contended that the petition mentioned premises is bonafide required for additional accommodation of the landlord and therefore the tenants may be directed to quit and deliver vacant possession of the petition mentioned premises. Simultaneously, the deceased landlord has also filed the Rent Control Original Petition seeking enhancement of the rent.
3. The Rent Control Original Petitions were contested by Hindustan Petroleum Corporation contending that the lease deed dated 25.01.1979 does not envisage fixation of fair rent under the provisions of the Act. The Corporation is entitled to continue the business of petrol and diesel retail outlet until the landlord chooses to dispose of the property, in which event, the Corporation has pre-emptive right to purchase the same and continue to run the business. The Corporation further contends that it had made improvements to the value of more than Rs.21,720/- and therefore the rights of the parties cannot be determined in the Rent Control Original Petition. The Corporation however admitted that there are lots of commercial establishments situate in and around the Petition Mentioned Property. It was further contended that the locality had improved only on account of the petrol bunk established by the Corporation. According to the Corporation, the Petition for fixing fair rent has been filed only to harass the corporation and it is devoid of merits.
4. Before the Rent Controller, common evidence was let in in both the Rent Control Original Petitions. On behalf of the landlord Exs. P1 to P11 have been marked and the second petitioner was examined as PW1. An Additional document was also marked relating to the guideline value of the property maintained by the Sub-Registrar, Pollachi as on 10.01.1994. On behalf of the Corporation, no documentary evidence have been marked. On behalf of the Corporation, one Mr. Srinivasan was examined as RW1. Exs. C1 to C4 have also been marked as Court Documents.
5. The learned Rent Controller after considering the oral and documentary evidence dismissed RCOP No. 3 of 1990 by a common order dated 28.03.1994 holding that the requirement of the landlord to use the petition mentioned premises is not bonafide and therefore RCOP No. 3 of 1990 was dismissed. However, RCOP No. 4 of 1990 was allowed directing the Corporation to pay a sum of Rs.8,200/- per month as rent. Aggrieved by the same, the Corporation has filed R.C.A. No. 8 of 1994 as against the Order dated 28.03.1994 made in RCOP No. 4 of 1990. The landlord has not preferred any appeal as against the dismissal of RCOP No. 3 of 1990 and it has become final.
6. Aggrieved by the order dated 28.03.1994 in RCOP No. 4 of 1990, the Corporation has filed R.C.A. No. 8 of 1994. The Rent Control Appellate Authority, by judgment dated 02.08.1995 modified by the Order passed by the Rent Controller and partly allowed the Appeal by holding that the fair rent for the petition mentioned premises shall be Rs.4,260/- per month. Aggrieved by the same, the landlord have earlier filed C.R.P. No. 344 of 1999 before this Court. This Court, by an order dated 06.09.2002 set aside the judgment dated 02.08.1995 passed by the Rent Control Appellate Authority and remanded the matter back to it for fresh consideration. On remand, the Appellate Authority passed a judgment dated 29.11.2002 accepting the rent fixed by the Rent Controller at Rs.8,200/- per month and dismissed the R.C.A. No. 8 of 1994 filed by the Corporation. Aggrieved by the same, the present Civil Revision Petition has been filed by the Corporation.
7. According to the revision petitioner, they were inducted into the property in question in respect of 8.23 cents of land at Pollachi in which the building area is only 80 sq.ft. Originally the rent was fixed at Rs.550/- per month. As the area consisting of more vacant site, earlier the revision petitioners filed R.C.O.P.No.4/1990 for fixation of fair rent and in that R.C.O.P., fair rent was fixed at Rs.8,200/- per month, against which, they preferred an appeal in R.C.A.No.8/1994 and the rent was reduced to Rs.4,260/- per month. Aggrieved against the same, the landlord preferred Civil Revision Petition before this Court in C.R.P.No. 344/1999, which was ordered on 06.09.2002, remanding the matter to the Appellate Authority for re-fixation of the rent. Thereafter, the First Appellate Court re-fixed the rent as Rs.8,755/- per month. Aggrieved by the same, the present Civil Revision Petition is filed.
8. The main contention raised by the learned counsel for the petitioners is that major portion of the property petition mentioned premises is a vacant site. As per Section 4(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, vacant site can be construed only as amenities and for the purpose of valuation, only 50% of the area has to be taken into consideration, but the lower Appellate Court has taken note of the full extent of area while fixing the fair rent and therefore, the order passed by the Lower Appellate Court is erroneous.
9. The learned counsel for the respondents/landlord contended that the main business of petrol bunks is to cater to the needs of lorries and other heavy vehicles, for which the major area of vacant site is necessary. Therefore, the lower Appellate Court has taken the entire area for the purpose of valuation as per Section 4(4) of the Act. It is further contended that the R.C.O.P. was filed in the year 1990 and at that point of time, the property value was fixed at Rs.1 lakh per cent. But even during 2002, while remanding the matter, the Appellate Authority has taken the value at Rs.1 lakh per cant and at that point of time, the market value of the property would have been more than Rs.5/- lakhs. Even if 50% is taken into account as per Section 4(4) of the Act, the property value would be Rs.2,50,000/-. But the lower Appellate Court has fixed only at Rs.1/- lakh per cent. Therefore, he would plead that even the rent fixed at Rs.8,755/- per month is very meager amount.
10. Heard both sides. The lower Appellate Court has taken into consideration the value of the property at Rs.1 lakh per cent and even at that point of time, the market value of the property would be around Rs.3 to 4 lakhs. It is to be noted that the First Appellate Court has given calculation in its judgment, which reads as follows:
Total area of occupation 8.23 cents Cost of the land (Sub Registrar Office value) - 1 lakh per cent Hence total value of the land 8.23 x 1,00,000 Rs.8,23,000 Cost of construction (building) As per PWD Engineer's report Rs.42,000 Land value Rs.8,23,000 Building Value Rs.42,000 Amenities (internal and external) Rs.10,500 ..................
25% on building value of Rs.42,000 Rs.8,75,500 ..................
Permissible interest i.e,
Annual Rent 8,75,500 x 12/100
Annual Rent Rs.1,05,060/-
Rent per month Rs.10,05,060/12
Rs.8,755/-
11. In fact, the lower Appellate Court has taken Rs.1/- lakh as land value and also taken 42,000/- as value for the building. It has been clearly stated that for 8.23 cents, the value was fixed as Rs.8,23,000/- which is below the market value in the year 2002. Ultimately, the First Appellate Court fixed Rs.8,755/- which in my opinion which is reasonable and fair.
12. In this context, it is relevant to refer to the decision of this Court reported in (Rajagopal Vandaiyar and sons and another vs. D. Joseph Nadar (died) and others) 1992 I MLJ 287 wherein a similar question arose as to whether a vacant site exist within the leased out shop can be construed as a building, this Court held that the inclusion the definition 'building' for the purpose of the Act includes not only the superstructure but also the site on which the superstructure stands. In para No.5 of the said decision, it was held as follows:-
"5. Mr. M.K. Kabir, learned counsel for the respondent in the first place contended that the petitioner leased out only the site for the specific purpose of a care service station to one Nataraja Iyer. Subsequently, the said Nataraja Iyer, assigned the tenancy agreement in favour of Thirunaffukkarasu, who at his cost put up some asbestos sheet sheds and a compound wall, in the petition mentioned premises and from Thirunavukkarasu, the respondents have purchased the asbestos sheet sheds and the compound wall. Inasmuch as the said asbestos sheet sheds and the compound wall put up in the petition mentioned property do not belong to the petitioner, the petition for eviction filed under the provisions of the Act is not maintainable. The learned counsel further contended that as the respondents have become the owners of the asbestos sheet sheds and compound wall put up in the petition mentioned property, the petitioner cannot file a petition for eviction seeking for recovery of vacant possession of the site after the removal of the asbestos sheet sheds and the compound wall. The petition for eviction filed by the petitioner under Section 14 (1) (b) of the Act will be maintainable, if, what was let out to the respondents by the petitioner under the tenancy Agreement, Ex.A1 is a building within the meaning of Section 2 (2) of the Act. Therefore, the question we have to examine in this case is, whether the property let out by the petitioner to the respondents is a building within the meaning of Sec. 2 (2) of the Act. The backdrop of law may be briefly examined before going into the factual details. Section 2 (2) of the Act defines a building......
The inclusion of hut in the definition and other indications in Sub-clauses (a) and (b) of Section 2 (2) of the Act point to the fact that the words 'building' is used to denote a structure of the nature of a house intended for human habitation or for using it for non-residential purpose such as carrying on business. Hence, if we take the definition of the 'building' along with the purpose of the Act, it includes not only a building but even a part of it. A building consists of not only the superstructure but also the site on which the superstructure stands. In the decision J.H. Irani vs. Chidambaram Chettiar, (1952) 2 MLJ 221: AIR 1953 Mad 650, the subject matter of the lease consisted of
(a) small sheds at one end of the premises
(b) the site on which the tenant subsequently put up a cinema theater
(c) all the vacant space within, exclusive of the theater and sheds The question arose in that case whether what was let out was a building within the definition of the Madras Building (Lease and Rent Control) Act. For the appellant in that case it was contended that the description of the premises in the lease deed as well as in the prior leases pointed out to the land principally as a subject matter of the letting and since the sheds occupied only an inconsequential part of the entire premises there was no reason to suppose that what was let out was a building. The Division Bench did not accept the said contention of the appellant-landlord that in substance the letting was of land and not of any building. The Division Bench held that inasmuch as the subject matter of the lease consisted of small sheds at one end of the premises and the vacant site on which the tenant subsequently put up a cinema theater, the lease in that case was a lease of the building within the meaning of Section 2 (1) of the Madras Building (Lease and Rent Control) Act XV of 1946. In Salay Md. Sait vs. J.M.S. Charity, (1969) 1 MLJ 16, the Supreme Court, after referring to the decision in J.H. Irani vs. Chidambaram Chettiar, (1952) 2 MLJ 221: AIR 1953 Mad 650 observed as follows:-
"In order to determine whether a lease is of a vacant land or of a 'building', within the meaning of the Madras Buildings (Lease and Rent Control) Act, 1960, both the form and the substance of the transaction must be taken into account"
If the ratio of the above decisions is applied to the facts of the present case, there is no difficulty in holding that what was let out by the petitioner to the respondents is a Building within the meaning of Section 2 (2) of the Act...."
13. In this context, it will also be useful to refer to the decision of the Honourable Supreme Court reported in (B. Kandaswamy Reddiar and others vs. O. Gomathi Ammal) (2001) 2 MLJ 106 (SC) wherein in para-16, it was held as follows:-
"16. In addition we find, 'building' as defined in Sub-sec (2) of Sec.2 is an inclusive definition. This fictional definitions for a purpose that building as commonly understood in a general sense may not be construed in all situations as one composite whole. There may be a situation that a 'tenant' may occupy a part of a building, so for the purposes of the Act by virtue of the definition clause this may be construed as building. Under Sec. 2 (2), 'building' is defined as building, or hut or part of a building or hut and includes, gardens, grounds and outhouses etc., The definition of building does not give a go-by to the whole structure of building as 'building' as generally understood as it opens with the definition of 'building' to mean 'any building'. In other words, both 'building' and 'part of building' independently is to be construed as 'building' within this definition clause. This statutory definition fictionally includes various structures, huts, including part of a building, which otherwise could not be a building to be 'building' to be applied as such in the various statutory provisions of the Act for subserving the objects of the Act. When building takes various forms it has to be used differently in different provisions of this statutes. How only one form of definition viz., 'part of the building' to be carried and used restrictively in Sub-clause (c) of Section 10 (3)......."
14. Thus, from the above decisions, it is evident that even the vacant portion of the land, which are meant for catering to the heavy vehicles in the petrol bunk can also be construed as a building for the purpose of determining the fair rent. Coupled with this, in the present case, it is the admitted case that the tenant is using the premises in question for running a petrol bunk and it is admitted by both sides that for a petrol bunk, the tanks meant for storage of petrol or diesel are a mandatory requirement. It is also admitted that two huge tanks are embedded in the vacant site and without such tanks, the petrol bunk could not be run. This is evident that the tanks occupy a large space in the vacant site. But for the use of the vacant space to keep the tanks, the utility of the building will not be of any use. Therefore, the courts below are correct in taking the entire area for the purpose of calculation or valuation to fix the fair rent. I am of the view that the first appellate Court has rightly taken into account the vacant land as well, along with the building, for fixation of fair rent and I do not find any reason to interfere in the judgment of the First Appellate Court. It is brought to the notice of this Court that the respondents are paying Rs.4,260/- per month as rent during the pendency of this Revision Petition. Therefore, the difference in rent from the date of Rent Control Original Petition has to be paid by the revision petitioners to the respondents/landlord within a period of three months from the date of receipt of a copy of this order.
15. In the result, this Civil Revision Petition is dismissed, confirming the order of the Rent Control Appellate Authority (Subordinate Court) at Udumalpet dated 29.11.2002 in R.C.A.No.8/1994. No costs. Consequently, the connected miscellaneous petition is closed.
11.09.2013 Index : Yes Internet : Yes jvm/rsh To Rent Control Appellate Authority (Subordinate Court) Udumalpet.
B.RAJENDRAN. J jvm/rsh CRP(NPD) No.949 of 2003 11.09.2013