Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 2346 (MAD)

S. Jayarama Pandian v. J. Rathina Singh

2015-07-02

P.R.SHIVAKUMAR

body2015
ORDER The present civil revision petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the decree of the learned Rent Control Appellate Authority (VII Judge, Court of Small Causes, Chennai) dated 04.07.2013 passed in R.C.A.No.157/2011. The tenant in the R.C.O.P.No.243 of 2009 before the Rent Controller (XV Judge, Court of Small Causes, Chennai) is the petitioner in the present revision. The respondent in the revision is the landlord. 2. Contending that the monthly rent for the petition premises was Rs.2,500/-and a sum of Rs.5,000/-had been paid by the revision petitioner/tenant as advance and claiming that the said contractual rent was much less than the market rent, the respondent herein/landlord filed a petition under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 before the Rent Controller for fixation of fair rent for the petition premises at Rs.25,000/-per month. The same was taken on file as R.C.O.P No.243 of 2009. 3. The revision petitioner herein/tenant resisted the claim of fixation of fair rent at the rate of Rs.25,000/-per month on the following contentions: i) The revision petitioner became a tenant under K.M.Balasubramaniam. After the demise of K.M.Balasubramaniam, his wife Valliammal was receiving the rent and the said Valliammal neglected and failed to receive the rent from the revision petitioner/tenant. Hence the revision petitioner/tenant was constrained to file a petition under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in R.C.O.P.No.375/2008. ii) Only after the filing of the said case before the Rent Controller, the revision petitioner/tenant came to know that the respondent herein (landlord) had purchased the property from the said Valliammal on 21.11.2007. However, one Mrs.G.Revathy wife of K.B.Saravanan claimed half of the rent and she filed a suit on the Original Side of the High Court in C.S.No.46/2008. In view of the dispute among the legal heirs of Balasubramaniam, the revision petitioner filed another petition in R.C.O.P.No.92/2009 before the Rent Controller (XVI Judge, Court of Small Causes, Chennai) under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. In the said circumstances, without settling the dispute among the legal heirs of Balasubramaniam, the RCOP filed by the respondent herein (landlord) for fixation of fair rent was not maintainable. In the said circumstances, without settling the dispute among the legal heirs of Balasubramaniam, the RCOP filed by the respondent herein (landlord) for fixation of fair rent was not maintainable. iii) The revision petitioner was interested in purchasing the petition premises, as he was entitled to the benefit under Section 9 of the Tamil Nadu City Tenants Protection Act. Without considering the revision petitioner's claim to purchase the property, Mrs. Valliammal had sold the property to the respondent. Such a sale was improper in the eye of law. iv) The revision petitioner became a tenant initially for a monthly rent of Rs.600/-and the same was gradually increased to Rs.1,500/-. He had also paid a sum of Rs.5,00,000/-as rental advance cum security to K.M. Balasubramaniam, the original landlord. With the permission of K.M. Balasubramaniam, the revision petitioner also effected repairs and put up graders for supporting the wall of the building and for the said purpose he incurred an expenditure of Rs.2,00,000/-on the assurance of K.M. Balasubramaniam, the then landlord, that the rent would not be increased from Rs.1,500/-per month and that the revision petitioner would not be evicted. v) The amount of Rs.25,000/-claimed by the respondent herein/landlord as fair rent was highly excessive and arbitrary. Based on the above said contentions, the revision petitioner/tenant prayed for the dismissal of the fair rent petition filed as R.C.O.P.No.243 of 2009. 4. After enquiry, the learned Rent Controller, by order dated 11.02.2011 rejected the defence plea of the revision petitioner/tenant regarding the maintainability of the fair rent petition. The learned Rent Controller fixed the fair rent for the petition premises at Rs.20,272/-per month, which fixation was to be effective from 04.02.2009, namely the date of filing of R.C.O.P No.243/2009 for fixation of fair rent. On appeal, the learned Rent Control Appellate Authority (VII Judge, Court of Small Causes, Chennai), by judgment and decree dated 04.07.2013 made in R.C.A.No.157/2011, reduced the fair rent fixed by the Rent Controller to Rs.18,363/- from Rs.20,272/- per month. 5. On appeal, the learned Rent Control Appellate Authority (VII Judge, Court of Small Causes, Chennai), by judgment and decree dated 04.07.2013 made in R.C.A.No.157/2011, reduced the fair rent fixed by the Rent Controller to Rs.18,363/- from Rs.20,272/- per month. 5. Aggrieved by the decree of the Rent Control Appellate Authority (VII Judge, Court of Small Causes, Chennai) in merely reducing the fair rent and praying for the dismissal of the RCOP and challenging the computation of the fair rent made by the Rent Control Appellate Authority, the revision petitioner herein has brought-forth this civil revision petition on various grounds set out in the memorandum of grounds of civil revision petition. 6. The arguments advanced by Mr.M.Chidambaram, learned counsel for the revision petitioner and by Mr. D.Benington, learned counsel for the respondent were heard. The judgment of the courts below and other materials available on record were also perused. 7. The respondent herein filed the RCOP before the Rent Controller under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent. The petition property is a shop portion in door No.247, Mint Street, George Town, Chennai-3 consisting of 700 sq.ft. in the ground floor and 60 sq.ft. in the first floor with all basic amenities. According to the respondent’s contention, the building has been made of walls constructed with brick and lime mortar and plastered with cement mortar and with a Madras terrace using teak wood as supporting beams. It has got basic amenities like water supply, electricity and drainage connections. 8. The revision petitioner contended before the Rent Controller that there was no attornment of tenancy in favour of the respondent herein/landlord; that there was a dispute regarding the title of the property among the legal heirs of K.M.Balasubramaniam and that hence till the dispute would be resolved, the petition filed by the respondent/landlord for fixation of fair rent was not maintainable. In this regard, the stand of the revision petitioner that he originally became a tenant under K.M.Balasubramaniam, the original owner of the petition premises, has been admitted by the respondent herein. However, it is also an undisputed fact that after the death of K.M.Balasubramaniam, Valliammal was recognised as the landlord and she was collecting the rent from the revision petitioner. In this regard, the stand of the revision petitioner that he originally became a tenant under K.M.Balasubramaniam, the original owner of the petition premises, has been admitted by the respondent herein. However, it is also an undisputed fact that after the death of K.M.Balasubramaniam, Valliammal was recognised as the landlord and she was collecting the rent from the revision petitioner. The revision petitioner would contend that his failure to make payment of rent prior to the filing of the RCOP for fixation of fair rent was due to negligence and failure on the part of Valliammal to come and collect the rent. In this regard, the revision petitioner seems to have taken conflicting and tantalising stands. At one place he took a stand that he did not make payment of rents, since the said Valliammal did not turn up for receiving the rent and that therefore he was constrained to file a petition in RCOP No.375/2008 against Valliammal for deposit of rent. It is obvious from Ex.R5 that the revision petitioner filed RCOP No.375/2008 praying for an order permitting him to deposit the rent for the petition premises into the court. The said petition came to be filed on 20.02.2008. The same came to be filed on the premise that Valliammal was not coming forward to receive the rent from November 2000 onwards and that the notice sent to her to name her bank and furnish her bank account number also returned unserved. However, the said petition came to be dismissed as not pressed on 14.10.2009, when he came to know that Valliammal had sold the petition premises to the respondent herein. After withdrawing the said petition, he chose to file another petition under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as R.C.O.P.No.92/2009 seeking permission to deposit the rent relating to the petition premises on the ground that he had not attorned the tenancy in favour of the purchaser, namely the respondent herein and that one G.Revathy was also claiming 50% of the rent. 9. Admittedly, the revision petitioner accepted Valliammal, the wife of the original landlord, to be his landlord after the death of Balasubramaniam. It is not in dispute that from Valliammal, the respondent has purchased the petition property. 9. Admittedly, the revision petitioner accepted Valliammal, the wife of the original landlord, to be his landlord after the death of Balasubramaniam. It is not in dispute that from Valliammal, the respondent has purchased the petition property. As such, citing the claim by a third party, the revision petitioner cannot refuse to recognise the respondent as landlord and he cannot contend that the RCOP for fixation of fair rent filed by the respondent is not maintainable. The respondent being entitled to receive rent by virtue of his purchase made from Valliammal, who had been accepted as the landlord of the revision petitioner, is entitled to receive the rent from the tenant, namely the revision petitioner and hence the revision petitioner cannot deny the jural relationship of landlord and tenant and contend that the petition for fixation of fair rent filed by the landlord is not maintainable. In addition, the respondent has also taken a stand, as per averment made in paragraph 6 of the counter statement, that he was interested in purchasing the suit property under Section 9 of the City Tenants Protection Act and that without considering the claim of the revision petitioner over the property, his erstwhile landlord Valliammal sold the property to the respondent and that hence such a sale would not be proper in the eye of law. The above said contention will make it clear that the revision petitioner was determined to squat on the property without paying the fair rent and disputing the title of the landlord in respect of the building. However, it is an admitted case that the revision petitioner became a tenant under K.M.Balasubramaniam not in respect of vacant site, but in respect of a building for non-residential purpose. Such admission is also revealed from his own contention that since the walls of the building became weak, he had to put up graders supporting the walls spending a sum of Rs.2,00,000/-. Therefore the meek attempt made by the revision petitioner to contend that he was entitled to the benefits of Section 9 of the City Tenant Protection Act cannot be sustained and the same has got to be rejected at as untenable. 10. Therefore the meek attempt made by the revision petitioner to contend that he was entitled to the benefits of Section 9 of the City Tenant Protection Act cannot be sustained and the same has got to be rejected at as untenable. 10. Yet another stand taken by the revision petitioner is that the original rent for the petition premises was Rs.600/-and it was gradually increased to Rs.1,500/-per month and that in view of the expenditure incurred by him to the tune of Rs.2,00,000/-for strengthening the walls, the erstwhile landlord, namely K.M.Balasubramaniam, had promised not to increase the rent and not to evict the revision petitioner. By making such a contention, the revision petitioner aimed at freezing the rent at a particular rate and claimed permanent tenancy, much against the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is also obvious to note that no permission in writing had been obtained by the revision petitioner from the original landlord K.M.Balasubramaniam or his successor Valliammal or the present landlord, namely the respondent herein, permitting him to effect repairs and adjust the expenditure incurred towards effecting repairs against the rent payable. Therefore, the above said contention of the revision petitioner also deserves to be rejected and the learned Rent Controller and the Rent Control Appellate Authority have rightly rejected the same. 11. Similar is the contention of the revision petitioner regarding the quantum of rent payable prior to the filing of the fair rent petition. Though he would contend that the rent was only Rs.1,500/-per month he was not able to produce any rental receipt or any note book containing the entries regarding payment of rent with the signature or initial of the landlord. Therefore the said contention of the revision petitioner/tenant cannot be countenanced. However it is quite immaterial whether the rent was Rs.1,500/-per month as contended by the revision petitioner or Rs.2,500/-per month as contended by the respondent. The only question that requires determination in the case is, “what is the amount that can be fixed as fair rent for the petition premises as on date of petition?” The revision petitioner has also taken a stand that he had paid a sum of Rs.5,00,000/-as advance cum security deposit to K.M.Balasubramaniam. But not even a scrap of paper has been produced to prove the same. But not even a scrap of paper has been produced to prove the same. The said plea is nothing but one taken for squatting on the property without paying fair rent. The said contention also does not deserve countenance and on the other hand, it is bound to be rejected as not substantiated and as a plea taken only for the purpose of squatting on the property without paying fair rent. 12. The revision petitioner/tenant does not dispute the nature of construction and the availability of the above mentioned basic amenities. He had also failed to dispute the correctness of the plinth area, both in the ground floor and the first floor. However, during the course of trial before the Rent Controller, the Building Surveyor engaged by the respondent herein/landlord, who was examined as PW2, had given the measurements in his report and sketch marked as Ex.P1(A) and Analysis Report marked as Ex.P3. A lesser extent of plinth area of the ground floor and first floor has been shown. As against 700 sq.ft. of plinth area in the ground floor as per the description of property in the RCOP, only 680 sq.ft. has been shown to be available in the ground floor in accordance with Ex.P1(A). Similarly, as against 60 sq.ft. in the first floor only 54 sq.ft. has been shown as the available space in the first floor. The common area available in the ground floor and first floor have been shown as 30 sq.ft. and 124 sq.ft. respectively and PW2 took the proportionate share in the common area to be 1/5th. 13. Capt. R.E. Deenatha Rao, building surveyor engaged by the revision petitioner/tenant, who figured as RW3 in his report has stated that the area available in the ground floor is only 665 sq.ft. He has also failed to state anything regarding the availability or otherwise of any area in the first floor in the occupation of the revision petitioner herein/tenant. He has also failed to take proportionate share in the common area. Thus he was content with calculating the building cost of the ground floor portion alone. 14. In this regard, both PW2 and RW3 have taken the same rate, namely Rs.392/-per sq.ft. as construction cost. He has also failed to take proportionate share in the common area. Thus he was content with calculating the building cost of the ground floor portion alone. 14. In this regard, both PW2 and RW3 have taken the same rate, namely Rs.392/-per sq.ft. as construction cost. Though the report of PW2 marked as Ex.P1(A) shows the plinth area of the ground floor with Madras terrace to be 680 sq.ft., the learned Rent Controller chose to accept the report of RW3 marked as Ex.R7 and took the plinth area of the ground floor portion as 665 sq.ft. alone. Since RW3 has not chosen to take into account the common area available in the ground floor and the first floor, the learned Rent Controller chose to accept the measurements provided by PW2 in Ex.P1(A). Accordingly, the common area available in the ground floor was taken as 30 sq.ft. and the proportionate share was taken as 30 x 1/5 = 6 sq.ft.. Similarly the common area in the stair case in the first floor portion was taken as 124 sq.ft. and 1/5th of the same was reckoned as 25 sq.ft. The learned Rent Controller took the cost of construction of the building at the rate of Rs.393/-per sq.ft. for the ground floor and Rs.368/-per sq.ft. for the first floor. The same rates were applied for the share in the common area in the ground floor portion and first floor portion respectively. Both PW2 and RW3 had chosen to add 5% of the value of the building towards provision of basic amenities. According to the respondent/landlord, the building was 71 years old. According to the report of PW2 marked as Ex.P1(A), the building was 50 years old, whereas according to the report of RW3 marked as Ex.R7, the age of the building was 75 years. The learned Rent Controller accepted the assessment of the age of the building made by RW3, building surveyor engaged by the revision petitioner/tenant and worked out the depreciated value of the building by multiplying the cost of construction with 0.4705. The calculation of the value of the building alone thus arrived at by the learned Rent Controller can be shown in the following tabular column. Sl. No. Description Area in Sq.ft. Rate of Construction Cost/Sq.ft. Total cost of construction in Rs. The calculation of the value of the building alone thus arrived at by the learned Rent Controller can be shown in the following tabular column. Sl. No. Description Area in Sq.ft. Rate of Construction Cost/Sq.ft. Total cost of construction in Rs. 1 Ground Floor 665 393 2,61,345.00 2 Share in the common area 6 393 2,358.00 3 First Floor 54 368 19,872.00 Sl. No. Description Area in Sq.ft. Rate of Construction Cost/Sq.ft. Total cost of construction in Rs. 4 Proportionate share in the common area of the 25 368 9,200 first floor Total 2,92,775.00 5% addition towards basic amenities 14,638.75 Total 3,07,413.75 15. If the age of the building is taken as 75 years, the depreciated value will be Rs.3,07,413.75 x 0.4705 = 1,44,638.16. RW2 adopted Rs.10,000/-per sq.ft. to be the market value of the land based on Ex.P2, a certified copy of the sale deed dated 12.09.2007 registered as Document No.934 of 2007 on the file of SRO, Sowcarpet and his analysis report marked as Ex.P3 stating that the market value of the land in Mint Street was more than three Crores per ground equivalent to Rs.12,500/-per sq.ft. However, RW3, the building Surveyor engaged by the Revision petitioner/tenant took the land cost at Rs.48,00,000/-per ground. As no sale deed in support of such valuation of the land was produced on the side of the revision petitioner, the learned Rent Controller relied on the sale under Ex.P2 and fixed the market value of the land at Rs.1,66,92,170. Based on the report of PW2, the proportionate share in the land was calculated at 270.67 sq.ft. Thus the market value of the land has been arrived at as follows: 1,66,92,170/2400 x 270.67 = Rs.18,82,529/- 16. As per section 4(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the fair rent shall be 9% of the gross return per annum on the total cost of the building and as per sub clause (3) of Section 4 for residential portions. The fair rent for a non-residential building would be 12% of the gross return per annum on the total cost of such building. Admittedly, the petition premises is a non-residential portion. The fair rent for a non-residential building would be 12% of the gross return per annum on the total cost of such building. Admittedly, the petition premises is a non-residential portion. Though the section mandates that the fair rent shall be 12% of the gross return per annum on the total cost of the building, the learned Rent Controller chose to fix the annual rent, not at the rate of 12%, but only at the rate of 9% of the total cost of the building. Accordingly, the learned Rent Controller fixed the monthly rent at Rs.20,271.67P, rounded to Rs.20,272/-. Though the learned Rent Controller has stated that 9% of the value of the building and land was taken as the annual rental value, the learned Rent Controller simply took 1% as the monthly rental value. 1% of the total value shall be equivalent to the monthly rate calculated at the rate of 12% annual return. The learned Rent Controller committed a mistake in noting the rate of fair rent as 9% annual return, instead of 12% as contemplated under Section 4(3). However, the learned Rent Controller rightly calculated the fair rent at 12% annual return on the total value of the land and building. 17. The revision petitioner herein challenged the said fixation of fair rent made by the Rent Controller by preferring an appeal before the Rent Control Appellate Authority in R.C.A.No.157/2011. The learned Rent Control Appellate Authority, concurred with all other findings of the Rent Controller, excepting the market value of the land. However, opining that the property regarding which the sale was made under Ex.P2 was about 250 buildings away from the petition premises, the learned Rent Control Appellate Authority chose to reduce the market value of the land to Rs.1,50,00,000/-per ground. Accordingly, the land value was fixed at Rs.16,91,688/-. Thus the land value as well as the total value of the building and land was reduced by Rs.1,90,841/-and thus the total value came to be fixed at Rs.18,36,326/-, the learned Rent Control Appellate Authority rectified the mistake committed by the Rent Controller in wrongly suggesting the 9% of annual return as the fair rent, whereas the actual fair rent calculated was at the rate of 12% annual return. Thus the learned Rent Control Appellate Authority correctly held that the building being a non-residential portion, the fair rent would be 12% of the annual return on the total value of the land and building and accordingly fixed the monthly fair rent at Rs.18,363.26 rounded off to Rs.18,363/-. The revision petitioner has not produced any data sale to show the market value of the land. It is not made clear by the revision petitioner or by the building surveyor engaged by him, who deposed as RW3 as to on what basis he arrived at the market value of the land at Rs.48,00,000/-per ground. His report marked as Ex.R7 does not contain any reference to a sale regarding a similar property in the proximity of the petition premises with similar amenities. The ipse dixit of RW1 and the evidence of R.W.3 were rightly rejected by the Rent Controller as well as the Rent Control Appellate Authority. 18. So far as the fixation of the land value is concerned, the respondent/landlord relies on Ex.P2-sale deed dated 12.09.2007. An extent of 8992 sq.ft. land comprised in old door No.1/278 comprised in S.No.600, (new survey No.5/2) in Mint Street, Chennai came to be sold with a building thereon for a total sum of Rs.6,65,40,800/-. The value of the land alone was shown as Rs.6,25,40,000/-. The same works out to Rs.1,66,92,171/-per ground and equivalent to Rs.6955.07 per sq.ft. The same had been adopted by the learned Rent Controller. But the Rent Control Appellate Authority has chosen to reduce it to Rs.1,50,00,000/-per ground on the premise that the property sold under Ex.P2 was nearly 250 buildings away from the petition premises. Though there is no reasonable ground for such reduction of the market value of the land, as against the reduction (modification) in the land value made by the learned Rent Control Appellate Authority, the respondent/landlord has not chosen to prefer any revision. The revision petitioner, who has approached this court with the revision, has miserably failed to show how the market value of the land adopted by the learned Rent Control Appellate Authority, which is even lesser than the market value reflected by the documentary evidence, namely Ex.P2 is erroneous especially in the absence of any document showing sample sales made for a lesser price. Therefore, this court is of the considered view that the revision petitioner cannot contend that the market value of the land adopted by the learned Rent Control Appellate Authority is excessive, even though such a chance of challenging it to be on the lower side was available to the respondent herein/landlord. This court does not find any defect or error in fixing the market value of the land to enable the revision petitioner to contend that he is aggrieved by such fixation. 19. So far as the other aspects are concerned, namely the plinth area, share in the common area are concerned the learned Rent Controller and Rent Control Appellate Authority have adopted the rate of Rs.393/-per sq.ft. for the ground floor portion, which is just one rupee above the rate furnished by RW3. So far as the first floor portion is concerned, the only evidence available is the evidence of PW2, which furnished the rate as Rs.368/-. The adoption of the same cannot be found fault with. At the cost of repetition, the fair rent calculation for the petition premises is given below: Ground Floor (Madras terraced) area 665 sq.ft. @ Rs.393/-per sq.ft. Rs. 2,61,345/- First Floor (Madras terraced) area 54 sq.ft. @ Rs.368/-per sq.ft. Rs. 19,872/- Ground Floor common area 6 @ Rs.393/- per sq.ft. sq.ft. Rs. 2,358/- First Floor Common area 25 sq.ft. @ Rs.368/- per sq.ft. Rs. 9,200/- Rs. 2,92,775/- Basic Amenities @ 5% Rs. 14,638/- Rs. 3,07,413/- Depreciation for 75 years at 1% 3,07,413 x 0.4705 Rs. 1,44,638/- Land Value: 1,50,00,000 x 270.67 2400 Rs.16,91,688/- Rs.18,36,326/- The building being a non-residential portion, the fair rent would be 12% of the annual return on the total value of the land and building and accordingly the monthly fair rent calculated at Rs.18,363.26 rounded off to Rs.18,363/-is fair and the same cannot be contended to be excessive. Upon the scrutiny of the order of the Rent Controller, judgment of the Rent Control Appellate Authority and the materials available on record, this court is not able to find any defect or infirmity in the decree passed by the Rent Control Appellate Authority fixing fair rent at Rs.18,363/-per month from the date of petition. There is no merit in the revision and the same deserves to be dismissed with cost. In the result, the civil revision petition is dismissed with cost.