Judgment :- 1. The Petitioner in the above C.R.P. is a Tenant under the Respondent therein in respect of the Petition premises. 2. The Respondent herein filed R.C.O.P No.40 of 2001 before the Rent Controller (I Additional District Munsif) Salem, under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent for the petition premises. 3. The Petitioner contested the Petition inter alia contending as follows: a. The Petitioner is unaware of the alleged purchase of the petition premise’s by the Respondent; the Petitioner had become a Tenant, under one Kuppusamy Chettiar and his son in 1979; it is false to allege that the vendors of the Respondent directed the Petitioner to pay the rent to the Respondent since March 1997; there is no attornment of tenancy in favour of the Respondent; the Petitioner repaired the building with the consent of the Landlord by spending Rs.3,60,000/-; the Landlord agreed to sell the property to the Petitioner and agreed to adjust, the said amount towards the sale price or the monthly rent; since the electricity service connection was disconnected, the Petitioner got it restored by spending Rs.1,00,000/-; there is no relationship of Landlord and tenant between the Petitioner and the Respondent; it is not correct to state that the vacant site will fetch more than Rs.250/- per sq.ft; it is equally false to allege that the building is worth about. Rs.5,00,000/-; the building has not amenities at all and the question of fixing the fair rent to the Petition premises does not arise. 4. Before the Rent Controller, on the side of the Respondent/Landlord P.Ws.1 to 3 were examined and Exs.P1 to P.12 were marked. On the side of the Tenant/ Petitioner R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. 5. The Rent Controller after holding that there is relationship of Landlord and tenant between the Petitioner and the Respondent fixed the fair rent for the Petition Premises at Rs.5,250/- p.m. 6. Being aggrieved by that the Petitioner preferred an Appeal before the Appellate Authority in R.C.A. No.33 of 2005. 7. The Appellate Authority dismissed the Appeal confirming the fair rent fixed by the Rent Controller. 8. Being aggrieved by that the Petitioner is before this Court. 9. Heard both. 10. Being aggrieved by that the Petitioner preferred an Appeal before the Appellate Authority in R.C.A. No.33 of 2005. 7. The Appellate Authority dismissed the Appeal confirming the fair rent fixed by the Rent Controller. 8. Being aggrieved by that the Petitioner is before this Court. 9. Heard both. 10. The learned Counsel for the Petitioner made the following submissions: a. The main contention of the learned Counsel for the Petitioner is that, the guideline value mentioned in Ex.A8 has been relied upon by the authorities below for fixing the market value of the land and no other document whatsoever has been filed by the Landlord to prove the market, value of the Land over which the petition premises is constructed. b. The learned Counsel submitted that for fixing the market value of the land over which the building is constructed, the guideline value cannot be taken as the basis but the market value has to be arrived at on the basis of the Sale Deeds pertaining to the lands/properties located in the same locality and in the absence of the same, the market value can be determined on the basis of other acceptable evidence. c. In support of his contention, the learned Counsel relied upon the Full Bench decision of this Court, reported in M/s.Sakthi and Company through its partner, Veeranan v. Shree Desigachary, 2006 (2) CTC 433 (FB) : 2006 (2) ML J 295 (F.B) and another decision of the learned Single Judge of this Court reported in A.V. Gopalakrishnan v. O.L.V.R. Paramanandam, 2007 (3) CTC 668 . d. The learned Counsel submitted that in the Petition, the Respondent herein has mentioned the total area of the Petition premises as 3000 Sq.ft., whereas the authorities below, on the basis of the Commissioner’s Report, have taken the total extent of areas 3940 sq.ft though the Respondent himself has not filed any Petition to amend the Petition or the petition schedule. e. The tenant had repaired the building with the knowledge and consent of the previous Landlord by spending Rs.3,60,000/- and the Landlord had agreed to sell the property to the tenant and for the restoration of the electricity service connection, which was disconnected by the previous Landlord, the Petitioner had spent nearly Rs.1,00,000/-and as the building itself has been constructed by the tenant, the Respondent is not entitled to claim fixation of fair rent for the building. f. In support of his contention, the learned Counsel relied upon the decision reported in ML YACOB SHERIFF (D) by L.Rs. v. Rajrani Devi, 2004 (1) CTC 64. g. Further, the learned Counsel submitted that R.W.2 the son of the previous Landlord has been examined as a witness and he had admitted that his father received more than Rs.5,00,000/- from the Petitioner agreeing to sell the property, but the property was sold to the Respondent, however, the said evidence of R.W.2 has not been properly considered by the authorities below. h. According to the learned Counsel, the property has not been properly described in the Petition itself. The learned Counsel further submitted that since the Petitioner herein had not attorned the tenancy in favour of the Respondent, there is no Landlord and tenant, relationship between the Petitioner and the Respondent. i. The learned Counsel submitted that in the Petition itself the Respondent has stated that the building was put up 60 years back, whereas the authorities below fixed the age of the building as 22 years, which is contrary to the case of the Respondent himself and therefore, the said finding is liable to be set aside. The learned Counsel further submitted that even R.W.3-Engineer has deposed in his evidence that the age of the building was fixed approximately. j. In the Engineer’s Report, it has not been mentioned whether water facilities are available to the building. The learned Counsel submitted that since the market value of the site has been fixed on the basis of the guideline value, the order has to be set aside and the matter has to be remitted back to the Rent Controller for fixing the market value of the site on the basis of the comparable sales that have taken place in the locality. k. The learned Counsel submitted that since the Respondent is a partnership firm, the Respondent ought to have filed Firm Registration certificate, but admittedly, the same has not been produced before the Rent Controller or the Appellate Authority and hence, the R.C.O.P is not maintainable. 11. Countering the said submissions, the learned Counsel for the Respondent submitted that in the Counter, the Petitioner had not disputed the extent of construction and the total extent of the property. Even in the cross-examination of P.W.1, no suggestion whatsoever has been put to P.W.1 regarding the extent of the property. 11. Countering the said submissions, the learned Counsel for the Respondent submitted that in the Counter, the Petitioner had not disputed the extent of construction and the total extent of the property. Even in the cross-examination of P.W.1, no suggestion whatsoever has been put to P.W.1 regarding the extent of the property. The Tenant has not filed any objection to the Commissioner’s Report and Plan and the Valuation Report of the Engineer, namely, Exs.A5 to A7. Therefore, according to the learned Counsel, it is not open to the Petitioner to contend that the value of the site as fixed by the authorities below on the basis of the report of the Commissioner and the Engineer’s Report is not correct. 12. The learned Counsel further submitted that neither before the Rent Controller nor before the Appellate Authority, it was contended by the tenant that the market value of the site cannot be fixed on the basis of the guideline value. Even in the grounds of Revision also, it has not been raised and therefore, it is not open to the Petitioner to raise that issue for the first time, before this Court, during the course of arguments. 13. The learned Counsel further submitted that the Petitioner/ tenant had accepted the market value fixed by the Commissioner and hence, it is not open to him to raise that question for the first time before this Court in the course of arguments. 14. The learned Counsel submitted that the attornment of tenancy by the Petitioner in favour of the Respondent herein after the petition premises was purchased by the Respondent is legally not necessary. Once it is admitted that the Respondent has purchased the property in which the Petitioner is a tenant, by operation of law, the Petitioner automatically becomes the tenant of the Respondent, and the said principle has been correctly applied by the authorities below and accordingly, have rightly held that there is Landlord and Tenant relationship between the Respondent and the Petitioner. 15. The learned Counsel also submitted that the Respondent herein had also filed R.C.O.P. No.41 of 2001 for eviction against the Petitioner herein and the eviction was ordered and against that no Appeal has been filed by the Petitioner and thus, it is established that the Petitioner is a Tenant in the petition premises. 16. 15. The learned Counsel also submitted that the Respondent herein had also filed R.C.O.P. No.41 of 2001 for eviction against the Petitioner herein and the eviction was ordered and against that no Appeal has been filed by the Petitioner and thus, it is established that the Petitioner is a Tenant in the petition premises. 16. The learned Counsel further submitted that there is no evidence on the side of the Petitioner that the market value of the site will be lesser than guideline value of the site and no contention was raised before the authorities below to the effect that the market value will be lesser than the guideline value fixed by the Commissioner. It was also not the case of the Petitioner that the market value is lesser than the guideline value. 17. Admittedly, the Petitioner had not filed any objections to the Commissioner’s Report, and the Engineer’s Valuation Report and he had not raised any objection regarding the value fixed for the site by the Commissioner and the Engineer and in such circumstances, even if the authorities below have arrived at the market value of the site based on the guideline value, the matter need not be remitted back to the Rent Controller. 18. The learned Counsel further submitted that regarding the non-production of the Firm Registration Certificate by the Respondent, no such plea was raised either in the Counter or before the authorities below and it has also not been raised in the memorandum of grounds of Revision also, but for the first time, it is being raised before this Court, during the course of arguments and hence it is not open to the Petitioner to raise that contention. 19. The learned Counsel submitted that in the Counter filed in the R.C.O.P., the Tenant had contended that with the consent of the previous Landlord he had spent, a sum of Rs.3,60,000/- for repairing the building and the Landlord agreed to sell the property to the Tenant and adjust the said amount towards the sale price or the monthly rent. But nowhere in the counter, it has been stated that the building was completely damaged and the tenant had put up the construction at his cost. 20. But nowhere in the counter, it has been stated that the building was completely damaged and the tenant had put up the construction at his cost. 20. The learned Counsel submitted that having not raised a plea in the Counter, in the evidence such plea was put forth and no receipt, or other acceptable evidence was adduced to prove the same but except the interested testimony of R.W.2, who is one of the sons of the previous Landlord, there is no other evidence and therefore, the authorities below on a consideration of the materials available on record have rightly rejected the said contention and there is absolutely no reason to interfere with the concurrent findings and therefore, the contention of the learned Counsel for the Petitioner that the Respondent cannot seek fixation of fair rent of the Petition premises is not correct. 21. The learned Counsel further submitted that R.W.2, who is one of the sons of the previous Landlord, has admitted in his evidence that his father had received more than Rs.5.00 lakhs agreeing to sell the property to the Petitioner and he had also admitted that, the Petitioner had not taken any steps to get the Sale Deed executed or for the return of the amount paid by the Petitioner by instituting any legal proceedings, so far, which itself show that there is absolutely no truth in the said contention of the tenant. 22. I have considered the aforesaid submissions and perused the materials available on record. 23. At the outset, it has to be pointed out that the factum of purchase of the petition premises by the Respondent herein is admitted by the Petitioner/Tenant. 24. The term “Landlord” would include both vendor and purchaser (Somasundara Mudaliar v. Madras Cooperative Society, 1950 (1) MLJ 655 at 656). 25. The Tenant is a statutory tenant, who in any event is bound to pay the rent for the premises. 26. Therefore, the finding of the authorities below that there is Landlord and Tenant relationship between the Respondent and the Petitioner is in accordance with law and the same has to be confirmed. Hence, the submission of the learned Counsel for the Petitioner on this aspect cannot be countenanced. 27. 26. Therefore, the finding of the authorities below that there is Landlord and Tenant relationship between the Respondent and the Petitioner is in accordance with law and the same has to be confirmed. Hence, the submission of the learned Counsel for the Petitioner on this aspect cannot be countenanced. 27. In the Counter Affidavit filed by the Petitioner in the R.C.O.P., it has been contended that he had repaired the building by spending more than Rs.3,60,000/- and he has spent a sum of Rs.1,00,000/- for getting the electricity service connection restored. 28. But in the oral evidence he has taken a stand as if the building was damaged and hence, he has put up a new construction with the permission of the previous Landlord by spending Rs.5,00,000/- and the previous Landlord had agreed to sell the property to him and adjust the said sum of Rs.5,00,000/- from the sale consideration or in the alternative had agreed to adjust the same towards the rent. Thus, it is seen that the Petitioner has taken a contradictory stand. In view of such contradictory stand taken by the Petitioner, the evidence of R.W.2 supporting the oral evidence of R.W.1 cannot be accepted. There is absolutely nothing on record to show that the Petitioner had obtained written permission from the previous Landlord either to repair the building or to reconstruct the same. 29. If really, as contended by the Petitioner, he had spent a sum of Rs.5,00,000/- for putting up the construction and if really, the previous Landlord had agreed to sell the property to him and adjust the said amount from the sale consideration, the Petitioner would not have kept quiet when the previous Landlord had sold the Petition premises to the Respondent herein, but admittedly, the Petitioner had not taken any action by instituting any legal proceedings against the previous Landlord. 30. Though in his evidence, R.W.1 has stated that he had obtained a receipt from the previous Landlord, the same has not been produced before the Rent Controller and therefore, the contention of the Petitioner that since he is the owner of the building no fair rent can be fixed for the building cannot be countenanced. Therefore, the decision of the Apex Court reported in ML Yacob Sheriff (D) by L.Rs. v. Rajrani Devi, 2004 (1) CTC 64 is not applicable to the facts of the case. Therefore, the decision of the Apex Court reported in ML Yacob Sheriff (D) by L.Rs. v. Rajrani Devi, 2004 (1) CTC 64 is not applicable to the facts of the case. The authorities below have rightly held that the Petitioner has not established that he had put up the construction. 31. As far as the extent of the area of construction and the total extent of the property is concerned, the authorities below have accepted Ex.A7, the Valuation Report of the Engineer and the Commissioner’s Report. The authorities below have rightly pointed out that though in the Petition the total extent of the building is mentioned as 3000 sq.ft which includes the building as well as the vacant space and the Engineer has stated that the total extent is 3940 sq.ft., the cause for the difference between the two has been explained by P.W.1 by stating that since the Petitioner had obtained an order of injunction restraining the Respondent from entering into the property, the property was not measured accurately and properly and the correct and actual extent has not been stated in the Petition. 32. Further, it has to be pointed out that the Petitioner had not filed any objection to Exs.A5 to A7 and had not disputed that he is in possession of 3940 sq.ft. Therefore, the finding of the authorities below that the tenant is in possession of the total extent of 3940 sq.ft is correct. 33. Ex.A7 is the Valuation Report of the Engineer, wherein, he had mentioned the total extent of the land in the occupation of the tenant as 3940 sq.ft. and the same has not been denied either by the Petitioner or the Respondent. 34. The value of the land has been stated by the Engineer as Rs.153 sq.ft. and the Tenant had not disputed the same. The constructed area is taken as 1091 sq.ft. and after deducting the same from the total extent of 3940 sq.ft., the vacant space occupied by the Tenant comes to 2849 sq.ft. Since the Engineer had taken the entire vacant space available apart from the building for valuation, the same has not been accepted by the authorities below. But the authorities below without properly understanding the Proviso to Section 4(4) of the Act have taken 50% of the vacant space also into consideration for fixing the land cost. Since the Engineer had taken the entire vacant space available apart from the building for valuation, the same has not been accepted by the authorities below. But the authorities below without properly understanding the Proviso to Section 4(4) of the Act have taken 50% of the vacant space also into consideration for fixing the land cost. But the said procedure adopted by the authorities below is against the Full Bench decision of this Court reported in H.C. Lodha v. Dr. C. Ranganathan, etc., 1989 (1) LW 137 . 35. As per the Full Bench decision, if there is any vacant land appurtenant to such building, and its extent is in excess of the built up extent, carving out of it fifty percent of the built up extent, to be added to the built up extent for calculating the market, value of the site, the residue of the vacant land has to be treated as amenity. But the authorities below have not followed the aforesaid procedure. The fixation of fair rent for the building is defined in the Act. Fair rent has to be determined as per the formula and procedure as prescribed under the Act. Since the formula and procedure adopted by the authorities below is not correct, it has to be refixed as per the formula and procedure as prescribed under the Act. 36. As far as the contention of the learned Counsel for the Petitioner though the Respondent had stated in the Petition that the building had been put up 60 years back, the Commissioner and the Engineer have fixed the age of the building as 22 years and accordingly, the depreciated value has been arrived at and the same has been accepted by the authorities below is not correct is concerned, it has to be pointed out that the Petitioner had not objected to the percentage of depreciation and the age of the building taken into consideration by the Engineer for calculating the depreciation. The tenant has not objected either before the Rent Controller or before the Appellate Authority. It has to be pointed out that even in the memorandum of grounds of Revision also, no ground has been raised on this aspect but for the first time during the course of arguments, the learned Counsel has raised the said contention. Therefore, the said contention cannot be entertained at this stage. 37. It has to be pointed out that even in the memorandum of grounds of Revision also, no ground has been raised on this aspect but for the first time during the course of arguments, the learned Counsel has raised the said contention. Therefore, the said contention cannot be entertained at this stage. 37. It has to be further pointed out that P.W.3-Engineer, who had assessed and valued the building and the site had not been cross-examined on this aspect. Regarding the Commissioner’s Report also, it has not been contradicted while P.W.2-Advocate Commissioner was in the box and that was the reason why the Commissioner’s Report and the Engineer’s Valuation Report, have been accepted by the authorities below. In such circumstances, it is not open to the Petitioner to question the same for the first time before this Court. The Engineer has fixed the value of the building after depreciation at Rs.1,41,000/-, which, in the considered opinion of this Court, cannot be said to be incorrect. 38. As far as the contention of the learned Counsel for the Petitioner that, the guideline value cannot be the basis for fixing the market value of the land is concerned, it has to be pointed out that it is true that it was so laid down in the Full Bench decision reported in M/s. Sakthi and Company through its Partner, Veeranan v. Shree Desigachary, 2006 (2) CTC 433 (FB): 2006 (2) MLJ 295 (FB). 39. But as pointed out by the authorities below, the tenant, has not questioned the Commissioner and the Engineer who have been examined as P.Ws.2 and 3 respectively on this aspect. It has not even been suggested to them that the value of the land will not be Rs.153 Sq.ft. but it will be less. Further, it has to be pointed out that the Tenant had not filed any objection to the Commissioner’s Report and the Valuation Report of the Engineer. 40. Having accepted the value of the land at Rs.153/- per sq.ft. and having not raised any ground on this aspect in the grounds of Revision, it is not open to the Petitioner to raise the said contention for the first time in the arguments. 40. Having accepted the value of the land at Rs.153/- per sq.ft. and having not raised any ground on this aspect in the grounds of Revision, it is not open to the Petitioner to raise the said contention for the first time in the arguments. Had the Petitioner objected to the adoption of the guideline value for fixing the market value of the land before the authorities below, it could also be raised in the Revision but not otherwise and therefore, the question of setting aside the market value fixed for the land does not arise. 41. For the aforesaid reason, the contention of the learned Counsel for the Petitioner cannot be countenanced. 42. Similarly, as far as the contention of the learned counsel for the Petitioner that the Respondent, being a Partnership firm, it should have produced the Firm Registration Certificate is concerned, it has to be pointed out that the same question has not been raised in the counter or even in the arguments before the Rent Controller. Further, the same question has not been raised in the Memorandum of Appeal filed in R.C.A. before the Appellate Authority. It has also not been raised in the grounds of Revision also and hence, it is not open to the Petitioner to raise the same for the first time before this Court during the course of arguments. Had the question been raised before the Rent Controller, the Respondent could have very well produce the Firm Registration Certificate before the Rent Controller and hence, the said contention of the leaned Counsel for the Petitioner cannot be countenanced. 43. Further, as stated above, since the fair rent was not fixed by the authorities below by adopting the formula and the procedure as prescribed under the Act, the fair rent is fixed as follows: 44. The total extent of the Petition premises is 3940 sq.f.t. and the area occupied by the building is 1091 sq.ft. and hence, the extent of the vacant site comes to 2849 sq.ft. 45. As per the proviso to Section 4(4) of the Act, if the vacant space is more than the built up area, then 50% of the built up area should be added with the built up area for arriving at the value of the site. Hence, the extent of the site over which the building stands has to be taken as 1091 sq.ft + 545.5 sq.ft. Hence, the extent of the site over which the building stands has to be taken as 1091 sq.ft + 545.5 sq.ft. = 1636.5 sq.ft. If the value of the land is taken as Rs.153 sq.ft. then the value of the site comes to Rs.2,50,384.50. After deducting 50% of the area occupied by the building, i.e. 545.5 sq.ft. from the total vacant site, namely, 2849 sq.ft. the vacant space comes to 2303.5 sq.ft. and if it is valued at the rate of Rs.153 per sq.ft. it comes to Rs.3,52,435.50. 46. As per the Proviso to Section 4(4) of the Act, remaining vacant space should be treated as schedule I amenity. If it is taken as schedule I amenity, 25% should be allowed for non-residential building. So, 25% of 3,52,435.50 comes to Rs.88,108/-. 47. If the cost of the Building Rs.1,41,000/-, the value of the site Rs.2,50,384.50,. and the amenity charges Rs.88,108/- are added, then the total value comes to Rs.4,79,492.50. Since the petition premises is the non-residential building, 12% of the total value will be the fair rent. If so calculated, the total value x 12/100 – Rs.4,79,492.50 x 12/100, the fair rent comes to Rs.4794.50 and the same is rounded off to Rs.4,795/-. Hence, the fair rent of the petition premises is fixed at Rs.4,795/-. 48. For the aforesaid reasons, the order of the authorities below is modified and the fair rent of the Petition premises is fixed at Rs.4,795/- per month. According, the Revision Petition is partly allowed to the extent as indicated above. No costs. Connected M.P. is closed.