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2012 DIGILAW 2417 (MAD)

Jayachandran @ J. J. Chandru v. K. Jagan Mohan

2012-06-12

V.IYA KARUPPIAH

body2012
ORDER 1. This revision is directed against the fair and decreetal order passed by the RCAA in R.C.A. No. 932 of 2006 dated 6.9.2007 in confirming the order of the learned Rent Controller passed in R.C.O.P. No. 30/05 dated 31.7.2006 in fixing the fair rent for the demised premises at Rs. 20,992/- per month from the date of the said petition. 2. The petitioner was the respondent/tenant and respondent herein was the petitioner/landlord before the learned Rent Controller. 3. The case of the petitioner before the learned Rent Controller would be as follows: 3.1. The property bearing Old Door No. 31, New Door No. 59, 48th Street, Ashok Nagar, Chennai-83, belongs to his father Mr. T.V. Kabali. The petitioner’s father died on 17.2.2002. During the life time of T.V. Kabali, he has inducted four persons as tenants in the property Old Door No. 31, New Door No. 59, 48th Street, Ashok Nagar, Chennai-83. During the life time of the petitioner’s father, he has executed a registered Will bequeathing the entire property bearing Old Door No. 31, New Door No. 59, 48th Street, Ashok Nagar, Chennai-83, in favour of the petitioner. 3.2. The rent for the tenanted portion is Rs. 6,000/- per month, exclusive of electricity charges and the tenancy is for the residential purpose. After the demise of the petitioner’s father T.V. Kabali, in February 2004, the respondent herein paid the rent for the month of February in March 2004 to the petitioner. 3.3. The petition premises is situated in a high profile residential area with individual plots. The petition premises is situated at 48th street of Ashok Nagar, Chennai-83, which connects the interior X and IX avenue roads. The X and IX avenue roads are important roads of the Ashok Nagar, where his commercial establishments are situated. The petitioner premises is very near to the Sri Krishna Streets, State Bank of Bikaner area, Jaipur, Domino’s Pizza, Lakshmi Marriage Hall, Udayam Mariage Hall, Sangam Hall, Govt. Girls High School, TNSC, Vijaya Bank, Apollo Pharma, Saravana Fast Foods Orthopedic and Specialities Centre, Rani Annadurai Marriage Hall, Udayam Theatre Complex, Commercial Establishments, Posh structures etc., are within one Kilo Metre. The petitioner’s premises situated in a very calm residential area where the land value is around Rs. 60 lakhs per ground. The petition premises is almost 20 years old. The petitioner’s premises situated in a very calm residential area where the land value is around Rs. 60 lakhs per ground. The petition premises is almost 20 years old. It is built with 3” brick work in cement mortar and plastered with cement mortar. Roofing in RCC and teak wood is used for wood work. It is a type I class A Building. All the basic amenities are provided with. 3.4. The respondent is paying a monthly rent of Rs. 6,000/- per month. It is not a fair rent for the premises in the occupation of the respondent and if it is calculated, as per the land value, it will be about Rs. 22,679/- per month. Therefore, the petitioner prays this Court a) to fix the fair rent for the premises at Rs. 22,679/- per month from the date of petition and b) directing the respondents to pay the cost of this petition to the petitioner. 4. The objections raised by the respondent/tenant in the counter would be as follows: 4.1. The property at Old Door No. 31, New Door No. 59, 48th Street, Ashok Nagar, Chennai-83, belongs to T.V. Kabali. He let out the same to the respondent on a monthly rent of Rs. 3,000/- per month. After that T.V. Kabali expired on 17.2.2002. Till his death he received the rent from the respondent herein. After his death the petitioner and his mother and sister started to claim the rent separately from the tenants herein stating that they are the sole legal heirs of the deceased. Accordingly, they filed a civil suit in this Court in C.S. No. 524 of 2004. So, the respondent was not able to pay the rent after the death of T.V. Kabali. 4.2. The petitioner on one side and the petitioner’s mother and sister on the other side issued legal notices and started to claim the monthly rent from the tenants. For that, the respondent also issued reply notices and informed to them that only if all the three of the legal heirs of the deceased T.V. Kabali, come together, then only the respondent will pay the rent to them. Now the petitioner informed to the tenants that this Court permits him to collect the rent from the tenants and also mentioned that C.S. No. 524 of 2004 is still pending in this Court, for final disposal. Now the petitioner informed to the tenants that this Court permits him to collect the rent from the tenants and also mentioned that C.S. No. 524 of 2004 is still pending in this Court, for final disposal. Since the Court permitted the petitioner to collect the rent from, the tenants, but no permission is granted to him to file an eviction petition or other proceedings against the tenants. So legally speaking the petitioner having no locus standi even to file this RCOP against the tenant before this Court. Since the petitioner’s mother and sister of the deceased T.V.Kabali are also having 2/3rd share, in the property they are also necessary party to the proceedings. The present petition is filed by K. Jagan Mohan, one of the legal heirs of T.V. Kabali. Further, this Court granted permission to collect the rent alone from the tenants and no permission is granted to the petitioner to file eviction proceedings or other proceedings against the tenants. So he has no locus standi or legal right to file this petition before this Court. 4.3. He clearly mentioned that his monthly rent payable to his portion is Rs. 3,000/- and not Rs. 6,000/- per month as claimed by the petitioner in para 4 of the petition. The schedule mentioned building is situated in one end of Ashok Nagar. So the petitioner’s stand that the building was situated very near to the Marriage Hall and Cinema Hall etc., are highly imaginary one. Further, the value claimed by the petitioner is Rs. 60 lakhs per one ground, is very excessive in nature. Further, in that building no teakwood is used. In that building, there are 4 tenants and the remaining two portions are still vacant. The petitioner is claiming Rs. 2,000/- and odd as rent. For that, no tenants are coming for more than 6 months. Further, the rent payable in the surrounding area, having equal sq.ft., as that of the petitioner’s portion is Rs. 2,000/-. So, the petitioner’s calculation on the basis of Rs. 60 lakhs per ground and arrived at the monthly rent as Rs. 22,679/- is highly excessive. Claiming such a huge rent means the petitioner wants to drive away the respondents one way or other. So, whatever may be the reasons, the calculation of the monthly rent as claimed by the petitioner is highly excessive in nature. 60 lakhs per ground and arrived at the monthly rent as Rs. 22,679/- is highly excessive. Claiming such a huge rent means the petitioner wants to drive away the respondents one way or other. So, whatever may be the reasons, the calculation of the monthly rent as claimed by the petitioner is highly excessive in nature. The rent now payable by the respondent is Rs. 3,000/-per month itself is excessive in nature. Since no basis amenities are available in the building, and that there is a dispute among the legal heirs and no white washing or other things are being carried out for more than three years. Hence, no merit in the petition. So the petition itself is liable to be dismissed in limine. Hence, it is prayed that this Court may be pleased to dismiss the R.C.O.P. No. 30 of 2005 with costs to the respondent. 4.4. The learned Rent Controller had conducted the enquiry on the aforesaid pleadings and had come to the conclusion of fixing the fair rent for the demised premises at Rs. 20,992/- per month payable from the date of petition till the date of vacating the premises. Aggrieved by the said order passed by the learned Rent Controller, the tenant preferred appeal before the learned Rent Control Appellate Authority in R.C.A. No. 932 of 2006. The Rent Control Appellate Authority had clubbed the appeal along with another connected appeal in R.C.A. No. 932 of 2006 and had passed a common judgment on 6.9.2007 by which he was confirming the orders of the learned Rent Controller in both the petitions. 4.5. Having aggrieved by the order of confirmation passed by the learned Rent Control Appellate Authority in R.C.A. No. 932 of 2006, the tenant has preferred the present revision questioning the validity of the said order. 5. Heard Mr. V.K. Rajagopalan, learned counsel for the revision petitioner/tenant and Mr. C. Rajesh, learned counsel for the respondent/landlord. 6. The learned counsel for the revision petitioner/the tenant would submit in his argument that the demised property in which the revision petitioner is in occupation is on the back portion of the entire building in the ground floor and the entire property was belonging to the father of the respondent/landlord and he died leaving the respondent, his mother and his sister as his heirs. He would further submit that the respondent is claiming the entire property through a Will executed by the father in his favour and he has not sofar obtained any probate or letters of administration from the testamentary jurisdiction of this Court and till then he cannot claim any right over the said property. He would further submit that the mother and sisters of the respondent have already filed the suit for partition before this Court in C.S. No. 542 of 2002 by giving Exhibit R-1 plaint and the respondent is not the absolute owner of the entire property. He would further submit in his argument that unless the mother and sister i.e., the other co-owners join with the respondent, the action taken by the respondent for fixing the fair rent could not be sustained. 7. He would also submit in his argument that the claim of the respondent through a Will executed by the father cannot be enforced without obtaining any probate or letters of administration. He would refer to a judgment of the Hon’ble Apex Court in Hem Nolini v. Isolyne Sarojbashini AIR 1962 SC 1471 : (1973) 2 SCC 112 in support of his argument. He would also submit in his argument that the denial of the title of the respondent in respect of the demised premises is bona fide and on that aspect, the Civil Court alone has got the jurisdiction to decide the matter and till then the respondent cannot proceed or maintain this petition. He would refer to a judgment of this Court in Nana Pillai v. Naina Mohamed Beevi (1991) 1 MLJ 419 , in support of his argument. He would further submit in his argument that the learned Appellate Authority did not consider the petition filed by the tenant for adducing evidence and marking additional documents on his side. He would further submit in his argument that the major share holders of the property namely, the mother and sister of the respondent are not before the Court and therefore, the fixation of fair rent is not possible without their presence. 8. He would also submit in his argument that this Court in the appeal filed in O.S.A. Nos. He would further submit in his argument that the major share holders of the property namely, the mother and sister of the respondent are not before the Court and therefore, the fixation of fair rent is not possible without their presence. 8. He would also submit in his argument that this Court in the appeal filed in O.S.A. Nos. 138 of 2004 issued a direction against the respondent to collect the rental amount payable to the premises and to deposit 1/3rd of it, in the Nationalised Bank and therefore, the right of the respondent has not been decided and therefore, he cannot initiate any proceedings without obtaining any permission from the Court. He would therefore, submit that the entire proceedings are vitiated by the non-maintainability of the petition before the learned Rent Controller. He would also submit in his argument that the findings of the learned Rent Controller as well as Rent Control Appellate Authority are also not in accordance with law. He would therefore submit that the orders passed by the learned Rent Controller in fixing the fair rent at Rs. 20,992/- cannot be sustained and the order of confirmation passed by the Rent Control Appellate Authority is also without any reason and therefore, the findings of both the Court below are liable to be set aside and the revision may be ordered accordingly. 9. The learned counsel for the respondent/landlord would submit in his argument that the respondent/landlord was authorised to collect and deposit 1/3rd share in the nationalised Bank. He would also submit in his argument that this Court had permitted to collect the rent in respect of the entire property including the demised building and therefore the respondent would be considered as landlord as per the definitions under Section 2(6) of the Act. If the Will executed by a father in favour of the respondent/tenant was probated in testamentary proceedings and the suit filed by the mother and sister of the respondent would be dismissed. He would also submit that in case the testamentary proceedings have been dismissed and the respondents has been found entitled to only the 1/3rd sharer, the respondent would be entitled to such share and the respondent being the co-owner is entitled to launch proceedings on behalf of other co-owner and he is not prohibited under any law from taking steps to benefit the estate. He would also submit that it is admitted by the revision petitioner/tenant that this Court in OSA had permitted the respondent/landlord to collect the rent for the premises and therefore there is no need for getting any separate permission for launching any proceedings like fixing of fair rent or eviction of the tenant. He would therefore submit that the argument of the learned counsel for the revision petitioner/tenant is not sustainable and the respondent/landlord is always entitled to maintain and continue the proceedings. 10. He would also submit that the quantum as fixed by the learned Rent Controller which was confirmed by the learned Rent Control Appellate Authority was not disputed by the tenant in the grounds of revision as well as in the arguments but however, it was argued that it was not in accordance with law. He would also submit that the learned Rent Controller adopted the correct method of arriving at a fair rent on the basis of the evidence adduced before it and there is no lacuna in the procedure followed by the learned Rent Controller. He would also submit that the learned Rent Control Appellate Authority had also gone into the procedure followed by the learned Rent Controller and up-held the fixation of fair rent and therefore, there is no reason to interfere with the orders passed by the learned Rent Control Appellate Authority in approving the fixation of fair rent by the learned Rent Controller and therefore, he would request the Court to dismiss the revision petition with costs. 11. I have given anxious thoughts to the arguments advanced on either side. 12. The admitted facts are that the revision petitioner is the tenant of the demised building which is in the ground floor on the back portion of the entire building. As regards the payment of monthly rent, it was contended by the landlord that it was Rs. 6,000/- per month whereas the tenant would dispute it as Rs. 3,000/- per month only. The petition was filed by the landlord for fixation of fair rent to the premises. The learned Rent Controller had come to a conclusion of fixing the fair rent at Rs. 20,992/- per month from the date of petition. The said decision reached by the learned Rent Controller was confirmed by the Rent Control Appellate Authority. For arriving to such a fixation of fair rent at Rs. The learned Rent Controller had come to a conclusion of fixing the fair rent at Rs. 20,992/- per month from the date of petition. The said decision reached by the learned Rent Controller was confirmed by the Rent Control Appellate Authority. For arriving to such a fixation of fair rent at Rs. 20,992/-, the Rent Controller had come to the conclusion that the building was aged about 8 years on the basis of the evidence given by P.W.2, the Engineer. However, I could see that the landlord has mentioned the age of the building to be 20 years in the petition. However, he had calculated depreciation for 8 years only. In the evidence adduced by PWs 1 and 2, they spoke to the effect that the entire building consists of front block and the rear block and the front block was aged 20 years and the rear block was aged 8 years. Therefore, the mistake would have been committed in the petition that the age of the front portion of the entire building would have been mentioned mistakenly for the demised premises. There was no dispute raised in respect of the age of the building by the revision petitioner also. The evidence of PW2 was mainly relied upon for finding the plinth area at 1022.84 sq.ft which is to be divided by two for finding the vacant area of the two floors occupied by the tenant in the rear block of 487.3 sq.ft. The rateable open space available in and around the demised building was found to have arrived at 266.5 sq.ft for the total area of 883.8 sq.ft in respect of the vacant area. There is no dispute regarding the type of the building as type I since it was built by cement and mortar using teakwood for the fixtures used in the premises. The constructed area was also found on the basis of evidence of PW2 and his report Exhibit P-3. In Exhibit P-3, it has been mentioned that the built up area was found to be 1022.84 sq.ft and the PWD rate as on 2005 was Rs. 370/sq.ft. In view of the basic amenities provided in the said building, the learned Rent Controller had awarded 15% of the total value of the said constructed area for the suggestion at 20% given by PW2. On such calculation, the value was reached at Rs. 370/sq.ft. In view of the basic amenities provided in the said building, the learned Rent Controller had awarded 15% of the total value of the said constructed area for the suggestion at 20% given by PW2. On such calculation, the value was reached at Rs. 4,14,692/- after deducting 8 years depreciation at 1%, the building value was arrived at Rs. 3,75,006/-. The learned Rent Controller had also considered the value for 883.08 sq.ft., vacant site and had calculated the value of the vacant site as on 2005 at the rate of Rs. 60,00,000/- per ground. 13. The learned Rent Controller had relied upon the evidence of P.W.2 and his report Exhibit P-3. The learned Rent Controller has not verified whether the suggested value at Rs. 60,00,000/- per one ground is correct or not, as per Exhibit P-2 sale deed. In the evidence of P.W.2, he would depose that the value of undivided vacant site measuring 887.83 sq.ft was valued at Rs. 10,94,798/-. On that basis, it was ascertained by P.W.2 that one ground would be valued at Rs. 60,00,000/- as on 2005. P.W.2 did not speak about any guideline for reaching such valuation. The said method of reaching a sum of Rs. 60,00,000/- per ground is not verified by the learned Rent Controller. The learned Rent Control Appellate Authority also did not cross-check the decision reached by the Rent Controller with the principles of law laid down by the Hon’ble Apex Court. According to the judgment of the Hon’ble Apex Court in General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and Another 2008 AIR SCW 5947 : LNIND 2008 SC 1542 : (2009) 2 MLJ 78 , it has been held as follows: “There is a significant different in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. If the increase in market value in urban/ semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same”. 14. As per the dictum laid down by the Hon’ble Apex Court 10% premium can be given for each year to reach a correct value of the said land in question. The sale deed produced in Exhibit P-2 was dated 2.4.1997 and the petition for fixation of fair rent was filed in the year 2005. Therefore, 8 years have been passed from the date of sale deed Exhibit P-2 and according to the principle laid down in the aforesaid judgment 80 % has to be added to the value of Exhibit P-2 for finding the correct value. 15. As per Exhibit P-2 sale deed 887.83 sq.ft was valued at Rs. 10,94,798/-. If it is calculated for one ground, it would be Rs. 26,15,870/- as on 2.4.1997. When 80 % premium is added for 8 years for calculating the value of 1 ground in the year 2005 it comes to Rs. 53,27,064/- per ground. Therefore, it is not Rs. 60 lakhs per ground as deposed by P.W.2. This verification was not done by the Rent Controller as well as Rent Control Appellate Authority. Therefore, this value of Rs. 53,27,064/- per ground has to be applied for calculating the value of vacant site of 883.8 sq.ft. On such calculation, it comes to Rs. 19,60,093/- instead of Rs. 22,07,700/-. When the correct value of the land is added with the building value of Rs. 3,75,006/-, the total value comes to Rs. 23,68,263/-. The schedule 1 amenity ascertained at 7% will be Rs. 1,65,778/- instead of Rs. 1,83,111/- as done by the learned Rent Controller. On computing all the ascertained values, the total value would come to Rs. 25,30,041/- instead of Rs. 27,98,981/-. On calculating the 9% of the total value, it comes to Rs. 2,28,064/- as annual value and on dividing it by to find the 12 monthly fair rent, it would be Rs. 19,005/- instead of Rs. 20,992/-. On computing all the ascertained values, the total value would come to Rs. 25,30,041/- instead of Rs. 27,98,981/-. On calculating the 9% of the total value, it comes to Rs. 2,28,064/- as annual value and on dividing it by to find the 12 monthly fair rent, it would be Rs. 19,005/- instead of Rs. 20,992/-. This sum was not calculated by the learned Rent Controller as well as the learned Rent Control Appellate Authority since they did not correctly follow the evidence. Therefore, it has become necessary for this Court to modify the said calculation as Rs. 19,005/-. 16. As regards the main contention of maintainability of the proceedings launched by the respondent/landlord, I could see that there is no dispute that the respondent/landlord was permitted by this Court to collect rent for the demised premises in the O.S. Appeal. The definition of landlord as per Section 2(6) of the Act would run as follows: “2(6) “landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant. Explanation.- A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant.” 17. No doubt, the respondent was permitted to collect the rent and he is entitled to collect the rent as per order of this Court. Once the respondent is entitled to collect the rent, he would be called as landlord for all purpose and entitled to launch any proceedings under Tamil Nadu Buildings Lease and Rent Control Act. Moreover, the respondent was also one of the co-owners in respect of the demised building. Therefore, I find no force in the argument advanced by the learned counsel for the revision petitioner. The judgment of the Hon’ble Apex Court in Hem Nolini v. Isolyne Sarojbashini (supra) for the dictum that the right title of the legatee could be decided only after conclusion of the testamentary proceedings is not applicable at this stage where the respondent was given permission for collecting the rents. The judgment of the Hon’ble Apex Court in Hem Nolini v. Isolyne Sarojbashini (supra) for the dictum that the right title of the legatee could be decided only after conclusion of the testamentary proceedings is not applicable at this stage where the respondent was given permission for collecting the rents. It has been submitted that apart from the filing of the suit in C.S. No. 542 of 2002 by the mother and sister of the respondent, it has been submitted that the respondent himself has initiated the testamentary proceedings for the grant of letters of administration. Therefore, the right of the respondent would no doubt be decided in the said proceedings and also in the proceedings in C.S. No. 542 of 2002 by this Court. However, the respondent/landlord is entitled to act as landlord of the demised premises as per the orders passed by this Court in O.S. Appeal. Therefore, there is no impediment for the respondent to continue the fair rent proceedings apart from any other proceedings to be taken as per the provisions of Rent Control Act in respect of the demised building. Therefore, the arguments advanced by the learned counsel for the revision petitioner/tenant as to the maintainability of the proceedings insisted by the respondent/landlord are not sustainable. 18. Therefore, I find that both the Courts below have failed to appreciate the evidence adduced by P.W.2 in a correct perception and they have ordered the fixation of fair rent at Rs. 20,992/- to which this Court arrives to a correct fair rent at Rs. 19,005/- per month. Since it was an omission and incorrect perception of evidence on the part of the Appellate Authority, this Court has to necessarily to interfere with the orders passed by the Court below, so as to modify the orders of fair rent fixed by them. Accordingly, the civil revision petition is partly allowed to the extent of modifying the fair rent from Rs. 20,992/- to Rs. 19,005/-. The civil revision petition is ordered accordingly. There is no order as to costs. Ordered accordingly.