In C.R.P.(NPD) (MD) No.1082 of 2005, the fair and decreetal orders, dated 18.12.2002, passed in R.C.A.No.85 of 2001, on the file of the Principal Sub Court (Rent Control Appellate Authority), Madurai, confirming the fair and decreetal orders, dated 31.10.2001, passed in R.C.O.P.No.409 of 1996, on the file of the Additional District Munsif Court (Rent Controller), Madurai Town, are impugned by the revision petitioner / landlord.
2. For the sake of convenience, the parties are referred to as per the nomenclature in the rent control original petition.
3. It is found that the petitioner / landlord has preferred a rent control original petition in R.C.O.P.No.409 of 1996, under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter, referred to as ?the Act?) seeking for fixation of the fair rent in respect of the property involved in the matter at the rate of Rs.6,881/-.
4. The case of the petitioner / landlord before the Court below in brief is as follows:
The petition Schedule property (hereinafter, referred to as ?the property?) is a portion of ground floor situated in Ward No.46 of Madurai Town and that the respondent is a tenant doing Jawli business in the property at a monthly rent of Rs.200/- and the total area of the site of the property is 325 sq.ft., and the superstructure is fully terraced and thirty years old and the building is situated in the heart of the city. Temples, Banks, Markets, Hospital, Private Nursing Home, High School, Bus Stop, Public Police Station, Post Office, Cinema Theatre etc., are within 2 to 5 minute waking distance from the property. The market value of the site is not less than Rs.1,500/- per sq.ft., and the total value of the site would, thus, come to Rs.4,87,500/- and the superstructure is constructed with brick, cement and also lime mortar and further doorways, doors, windows etc., are of high class teak wood and the value of the superstructure at the rate of Rs.500/- per sq.ft., comes to Rs.1,62,500/-, deducting the depreciation value amounting to Rs.24,375/-, the value of the superstructure would come to Rs.1,38,125/- and thus, the total value of the site and the superstructure is Rs.6,25,625/- and adding 10% towards amenities, the total value would come to Rs.6,88,187/- and hence, the petitioner / landlord sought for fixation of the fair rent for the property at the rate of Rs.6,881/-.
5. The respondent / tenant in the statement of objections put forth by him contended that the rent payable by him is a reasonable one and the value of the site and the superstructure as stated by the petitioner / landlord is exaggerated and the present rent payable by the respondent / tenant is a reasonable one and the other factors detailed in the petition are irrelevant for fixing the fair rent for the property. The detailed objection filed by the respondent / tenant in R.C.O.P.No.341 of 1996 may be taken as part and parcel of his objection in the present petition and hence, prayed for the dismissal of the rent control original petition.
6. The following points were framed in the rent control original petition for determination:
i. Whether the rent control original petition preferred by the landlord for fixation of the fair rent is entitled for acceptance? If so, what is the fair rent to which the landlord is entitled to? and ii. To what other relief, the landlord is entitled to?
7. In support of the petitioner / landlord's case, P.Ws.1 to 4 were examined and Ex.P1 was was marked and on the side of the respondent / tenant, R.W.1 was examined and Exs.R1 to 6 were marked. In addition to that, Exs.X1 to X3 Exs.C1 to C3 were also marked.
8. On a consideration of the materials produced, the Rent Controller was pleased to fix the fair rent at the rate of Rs.2,855/- for the property. Aggrieved over the same, it is found that the petitioner / landlord preferred an appeal before the Rent Control Appellate Authority in R.C.A.No.85 of 2001 and the Appellate Authority also concurred with the reasonings and conclusion of the Rent Controller and accordingly, dismissed the appeal preferred by the petitioner / landlord.
9. Impugning the same, it is seen that C.R.P.(NPD) (MD) No.1082 of 2005 has been preferred by the petitioner / landlord.
10. It is also found that before the Rent Control Appellate Authority, the respondent / tenant did not enter appearance and accordingly, the Rent Control Appellate Authority disposed of the appeal in the absence of the respondent / tenant and it is found that thereafter, the respondent / tenant had preferred an application to set aside the ex parte order passed against him and inasmuch as there is a delay of 355 days in preferring the same, an application in I.A.No.98 of 2004 has been preferred to condone the said delay.
11. The reason given by the respondent / tenant for the condonation of the said delay is that though he had entrusted his vakalat to his counsel to mark his appearance in the said rent control appeal along with the vakalats for entering appearance in the other connected rent control appeals, his Advocate was unable to file the vakalat in the present appeal and accordingly, the ex parte order came to be passed against him and as the ex parte order coming to his knowledge only at a later stage, the delay had occurred and hence, the application to condone the delay.
12. The petitioner / landlord contested the application putting forth his case that the rent control appeal in R.C.A.No.85 of 2001 has been dismissed and therefore, inasmuch as no order has been passed in the said rent control appeal as against the respondent / tenant, there is no need for entertaining his application for the condonation of the delay and hence, the application preferred by the respondent / tenant is liable to be dismissed.
13. The Court below, on a consideration of the materials placed, finding that the respondent / tenant has not given any acceptable and convincing reason for the condonation of the delay, despite having knowledge about the pendency of the rent control appeal concerned, thereby refused to entertain the application preferred by the respondent / tenant and further, the Court below had also held that inasmuch as the rent control appeal has been dismissed, no prejudice would be caused to the respondent / tenant by the dismissal of the application and so holding, dismissed the application preferred by the respondent / tenant for the condonation of the delay. Challenging the same, the respondent / tenant preferred C.R.P.(NPD) (MD) No.1121 of 2006.
14. The following points arise for consideration in the present civil revision petitions:
i. Whether the fixation of the fair rent for the property at the rate of Rs.2,855/- by the Courts below is correct?
ii. To what relief the petitioner in C.R.P.(NPD) (MD) No.1082 of 2005 is entitled to? And iii. To what relief the petitioner in C.R.P.(NPD) (MD) No.1121 of 2006 is entitled to?
POINT NO.I:
15. Seeking for fixation of fair rent for the property, the landlord has moved a rent control original petition under Section 4 of the Act.
16. According to the landlord, at present, the building fetches a monthly rent at Rs.200/- and the respondent / tenant is in occupation of the property and doing commercial business and considering the extent of the site of the building and the superstructure and other amenities available to the same as detailed in the petition and taking into consideration the value of the site and the superstructure, after deducting the depreciation value of the superstructure etc., it is his case that the rent to be fixed for the property is Rs.6,881/-.
17. Per contra, it is the case of the respondent / tenant that the present rent at Rs.200/- is reasonable for the property and the landlord has given exaggerated value of the property to increase the rent for the purpose of his case and it is not to be considered and hence, the petition is liable to be dismissed.
18. Considering the materials placed before the Courts below, it is found that the extent of the property is measuring an extent of 225 sq.ft., and adding to the same the staircase portion measuring an extent of 39 sq.ft., the Courts below have held that the total extent of the property would come to 264 sq.ft. It is also found that there is an open Veranda and Thinnai portion in front of the property measuring an extent of 33.58 sq.ft. Therefore, the said portion also forming part of the property had been rightly included by the Courts below and accordingly, held that the total extent of the property would come to 298 sq.ft. It is also found that in the front portion abutting the ?Varanda? portion, steps have been put up above the platform and the platform area belonging to the Corporation, the Courts below have rightly discountenanced the request of the landlord to take the same also into the total extent of the property and accordingly, rightly excluded the said portion belonging to the Corporation. Therefore, on that aspect, though some arguments were put forth by the learned counsel for the landlord before this Court, when it has not been made out that the platform portion also forms part of the property and the same also belongs to the landlord legally and on the other nand, when it is patently seen that the said platform portion belongs to the Corporation, the Courts below could not be faulted for not taking into consideration the said area while determining the extent of the property. Therefore, in conclusion, it is found that the Courts below have rightly determined the total extent of the property as 298 sq.ft., (24.5 sq.meters).
19. According to the landlord, the value of the site was Rs.1,000/- per sq.ft., during 1996 and Rs.1,600/- during 2001. However, as per the guideline value prevailing during 1996, it is found that the value of per square feet in the concerned locality is only Rs.858/- as seen from Ex.X1 and during 2001, the guideline value is Rs.1,263/- as seen from Ex.X2. Therefore, the Courts below have held that the value prevailing during 1996 could be taken into consideration at the rate of Rs.858/- per Cent and accordingly, calculated the total value of the property at Rs.2,55,684/-.
20. The area of the superstructure has been determined by the Courts below at 264 sq.ft., and applying the P.W.D.rates prevailing during 1996 to the superstructure of the property at the rate of Rs.1,475 per sq.meter as found in Ex.X3 and accordingly, found that the value of the construction is Rs.36,138/- and adding the electrical facilities provided to the building and taking into account 7.5% of the construction cost for the same, which comes to Rs.2,710/- and accordingly, fixed the value of the construction / superstructure at the rate of Rs.38,848/-. Further, the Courts below have also applied the depreciation value considering the age of the building at 30 ? 32 years old and accordingly, fixed the depreciation value at Rs.10,683/- and accordingly, determined the value of the superstructure at Rs.28,165/-. Therefore, in fine, fixed the value of the superstructure, after deducting the depreciation value at Rs.28,165/-.
21. The Courts below further have taken into consideration the report of the Engineer, but had not accepted the depreciation calculation adopted by him and thereby, in toto, fixed the value of the property at Rs.2,83,849/- [Rs.2,55,684/- + Rs.28,165/-].
22. Following the same, further adding the other facilities, like, mosaic, fixtures etc., the value of the property was fixed at Rs.2,85,516/- and considering its locality fixed the annual rent at 12% of the total value of the building holding the same at Rs.34,261/- and accordingly, held that the fair rent of the building per month would come to Rs.2,855/- and accordingly, disposed of the fair rent application preferred by the landlord.
23. As regards the C.R.P.(NPD) (MD) No.1121 of 2006, as seen from the materials placed, it is found that the Court below has rightly discountenanced the application preferred by the tenant for the condonation of the huge and inordinate delay in filing the application to set aside the ex parte order passed against him in the rent control appeal and further, inasmuch as the concerned rent control appeal has also been dismissed by the Appellate Court, finding that no prejudice would be caused to the tenant by the dismissal of the application, on that ground also, dismissed the application. Hence, the order impugned in C.R.P.(NPD) (MD) No.1121 of 2006 does not call for any interference as such and accordingly, it is found that C.R.P.(NPD) (MD) No.1121 of 2006 is not entitled for acceptance.
24. Be that as it may, inasmuch as the C.R.P.(NPD) (MD) Nos.1082 of 2005 and 1121 of 2006 have been tagged together and taken up for consideration, in the interest of justice, the learned counsel for the tenant was also permitted to put forth his submissions as regards the main petition in C.R.P.(NPD) (MD) No.1082 of 2005. Accordingly, the contentions of both the landlord as well as the tenant were heard at the time of taking into consideration the merits of the impugned order involved in C.R.P.(NPD) (MD) No.1082 of 2005.
25. It is the contention of the landlord's counsel that the Courts below have failed to take into consideration the platform portion in front of the property and therefore, the fair rent fixed should be reversed. However, it is the contention of the tenant that the platform portion as determined by the Courts below belongs to the Corporation and inasmuch as no valid document is pressed into service by the landlord to show his entitlement to the same, there is no warrant to interfere with the above findings of the Courts below. The contention of the tenant's counsel merits acceptance. As adverted to above, inasmuch as the platform portion, which had been excluded from the total site not shown to be belonging to the landlord and on the other hand found to be owned by the Corporation, the said area has been rightly excluded from the consideration. Therefore, it is found that excluding the same as determined by the Courts below, the total extent of the site would come to 298 sq.ft.
26. The learned counsel for the landlord contended that the value of the site has been fixed at a very low level by the Courts below and on the other hand, the value should have been determined as put forth by the landlord. However, when the guideline value as disclosed in Exs.X1 and X2 have been taken into consideration rightly by the Courts below, I am unable to accept the contention of the landlord that the value of the site has been wrongly determined by the Courts below. The learned counsel for the tenant has not put forth any argument on the value of the site adopted and fixed by the Courts below.
27. Similarly, it is the contention of the landlord's counsel that the value of the superstructure has also not been properly taken into consideration and considering the age of the building, value of the superstructure should have been fixed on the higher side above that fixed by the Courts below. However, the Courts below have rightly determined the age of the building and that apart the Courts below have also rightly placed reliance upon the P.W.D.rates as made out in Ex.X3 and after giving due account of the amenities available in the superstructure and also taking into account the depreciation value, rightly held that the value of the superstructure would only be Rs.28,165/-.
28. The learned counsel for the landlord contended that the sale deed, marked as Ex.P1 has not been taken into consideration by the Courts below and hence, the impugned order suffers from material and legal infirmity. However, it is found that when the Courts below have arrived at the value of the site by taking into consideration the guideline value as such, it is found that the value given in Ex.P1 may not be the sole criteria for fixing the value of the property. Further, the learned counsel for the landlord has also not established that the value reflected in Ex.P1 is the correct value during the relevant point of time and the consideration mentioned in the said sale transaction is the real consideration that was exchanged between the parties concerned. With reference to the same, as rightly contended by the learned counsel for the tenant, the landlord has not examined the party to the above said sale transaction in support of his case. In such view of the matter, the value mentioned in Ex.P1 cannot be straightaway taken into consideration without the landlord establishing the genuineness of the sale transaction covered therein. Therefore, the above argument put forth by the learned counsel for the landlord also cannot be acceded to. The Courts below have, while approaching the matter, rightly discussed the documents placed before them including the Commissioner's Report and the documents marked as Exs.X1 to X3 and also the other relevant matter in the right perspective and accordingly, correctly determined the fair rent for the property at the rate of Rs.2,855/-. In such view of the matter, the order impugned in C.R.P.(NPD) (MD) No.1082 of 2005 does not call for any interference.
29. The learned counsel for the tenant, in support of his contentions, placed reliance upon the the decision reported in 2000 (I) CTC 303 [Ramdoss vs. K.Thangavelu], 2001-3-L.W.224 [M/s.Shaw Wallace & Co. Ltd., vs. Govindas Purushothamdas and another], (2004) 1 MLJ 546 [R.Rathinam v. P.Nityanandam], 2007 (2) CTC 472 [J.V.Bhoopalan vs. Rajamanickammal and others], 2007-1- L.W.700 [Central bank of India and another vs. A.Koteeswaran and another] and 2008 (2) CTC 375 [K.Selvaraj vs. J.Narayanan and another]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
30. In conclusion, I hold that the fair rent fixed for the property by the Courts below, at the rate of Rs.2,855/-, is correct and accordingly, Point No.I is answered.
POINT NO.II:
31. In view of the fore going reasons, i. The fair and decreetal orders, dated 18.12.2002, passed in R.C.A.No.85 of 2001, on the file of the Principal Sub Court (Rent Control Appellate Authority), Madurai, confirming the fair and decreetal orders, dated 31.10.2001, passed in R.C.O.P.No.409 of 1996, on the file of the Additional District Munsif Court (Rent Controller), Madurai Town, are confirmed. ii. The fair and decreetal orders, dated 09.01.2006, passed in I.A.No.98 of 2004 in R.C.A.No.85 of 2001, on the file of the Principal Subordinate Court, Madurai, are confirmed.
iii. Resultantly, both C.R.P.(NPD) (MD) Nos.1082 of 2005 & 1121 of 2006 are dismissed with costs.
To:
1.The Principal Sub Judge, Appellate Authority, Madurai.
2.The Additional District Munsif, Rent Controller, Madurai Town.
.