Messrs. Dovo Tax Company vs T.R. Ramnath and another

S.A. Kader, J.—These two revisions arise out of the common order of the Principal Subordinate Judge, Madurai and Appellate Authority

under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as the Act, in R.C.A. 109 and 113 of 1982 confirming

the order of the District Munsif and House Rent Controller, Madurai in R.C.O.P. 639 of 1979 fixing fair rent for the petition mentioned non-

residential premises. The tenant-appellant in R.C.A. 109 of 1982 is the revision petitioner in C.R.P. 2086 of 1983, while the landlords-appellants

in R.C.A. 113 of 1982 are the revision petitioners in C.R.P. 3253 of 1983. The landlords who are the revision petitioners in C.R.P. 3253 of 1983,

filed the above application in R.C.O.P. 639 of 1979 for fixation of fair rent for the petition mentioned non-residential premises bearing door No.

12, Mahal Second St, Madurai which had been leased to the tenant, who is the revision petitioner in C.R.P. 2086 of 1983, on a monthly rental of

Rs. 420. The Rent Controller fixed the fair rent at Rs. 1,510 per month Against the said order the tenant preferred R.C.A. 109 of 1982, while the

landlords preferred R.C.A. 113 of 1982. By its common order the Appellate Authority dismissed both the appeals and confirmed the fair rent

fixed by the Rent Controller. Hence these revisions.

Under S. 4 (3) of the Act, the fair rent for any non-residential premises shall be twelve per cent, gross return per annum on the total cost of such

buildings. Sub-S.(4) of S. 4 lays down that the total cost shall consist of the market value of the site in which the building is constructed, the cost of

construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for

fixation of fair rent. In calculating the market value of the site, only that portion of the site on which the building is constructed and of a portion upto

fifty per cent thereof of the vacant land, if any, appurtenant to such building shall be taken into account. The cost of provision of amenities specified

in Schedule I shall not exceed in the case of any non-residential building 25 per cent of the cost of the site and the cost of construction of the

building shall be determined with regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for

the areas concerned. In appropriate cases, the amount not exceeding 30 per cent of the cost of construction can be allowed having regard to the

nature of the construction. From the cost of construction determined in the manner specified above depreciation has to be worked out as per the

rates specified in Schedule II.

A Commissioner has been appointed by the Rent Controller and on the basis of his report the area of the site, the area of the building and the

nature of the building have been fixed by the Rent Controller.

Let me first deal with the market value of the site. The learned Rent Controller has arrived at the area of the site of the building plus the first floor

portion of the garage at 3297-75 plus 123-25 i.e. 3421 sq.ft. as the area of the site. This calculation is not challenged before me by both the

parties. Now, to the question of the value of the site. According to the landlords, the value of the site will be at Rs. 50 per sq.ft. This is the

guideline maintained in the office of the Sub-Registrar as seen from the evidence of P.W.2. According to the tenant, the market value of the site will

only be between Rs. 10 and Rs. 12 per sq.ft. Ex.B1 and B5 are the deeds of sale in respect of this property which are of the year 1977. Under

Exs.B1 and B5 the value of the site alone works out at Rs. 20 per sq.ft. According to the landlords this was a distress sale as the vendors were

highly indebted and was anxious to sell the property and hence that value cannot be taken into consideration. However, the sales were of the year

1977 while this application for fixation of fair rent has been filed in 1979, and the price had a steep upward march during these years. Considering

all these aspects the Rent Controller has fixed the value of the site at Rs. 25 per sq.ft. and this had been accepted by the Appellate Authority. I find

no incorrectness, illegality or impropriety in the decisions of the authorities below. I therefore adopt the said value and hold that the market value of

the site is Rs. 85,525.29 as found by the Rent Controller.

Now to the cost of construction--on the basis of the Commissioner''s report the Rent Controller has fixed that the area of the terraced portion of

the ground floor excluding the garage portion is 1575 sq.ft., the zinc sheeted portion in the ground floor at 96.25 sq ft, and the tiled portion in the

ground floor is 1446.84 sq.ft. In the first floor the Madras terraced portion is 503.42 sq.ft. and the zinc sheeted portion is 779.19 sq.ft. These

figures are also not disputed before me. The Rent Controller has then fixed the age of the building at 75 years and this is not also challenged before

this Court. The building is constructed with teak wood as well as country wood. According to the rate of the Public Works Department, the cost

of construction of the ground floor in teak wood is Rs. 360 per sq. metre and for a building constructed entirely with country wood, the cost of

construction is Rs 310 per sq. metre. As this building has been constructed partly with teak wood and partly with country wood the Rent

Controller has fixed the value at Rs. 340 per sq. metre. On this basis, the depreciated value of the terraced portion of the ground floor comes to

Rs. 15,871.63. The cost of construction of the terraced portion of the first floor is fixed by the Rent Controller at 27.88 sq.ft. and the depreciated

value of the terraced portion comes to Rs. 4,475.87. The cost of construction of this tiled portion of the ground floor is fixed at Rs. 21.33 per

sq.ft. and the depreciated value of the tiled portion of the ground floor comes to Rs. 9,854.67. The cost of the construction of the zinc sheeted

portion is worked out at Rs. 19.52 and the depreciated value works out at Rs. 5,443.33. Thus the total cost of construction comes to Rs.

35,655.50. Neither party is able to place before me any error in the aforesaid assessment and calculations made by the Rent Controller which

have been confirmed by the Appellate Authority.

The main contention advanced by the learned counsel for the tenant-revision petitioner in C.R.P. 2086 of 1983 is that the cost of construction

must be the cost of the building as at the time of the construction of the building 75 years ago and reliance is sought to be placed on the decision of

the Supreme Court in K.C. Nambiar v. IV Judge, Court of Small Causes 1970 2 M.L.J. 24 (S.C.). It was held therein that the ''cost of

construction'' mentioned in S. 4(3) (b) (i) of the Madras Buildings (Lease and Rent Control) Act, 1960 meant the cost of construction of the

building as originally created with such additions as may be required to be made for subsequent improvements, it does not mean, as held by the

Madras High Court, the value of the building reproduced at the date when the Act came into force reduced by depreciation at the prescribed

rates. Hence rule 12 of the Madras Buildings (Lease and Rent Control) Rules, 1961, which plainly went beyond the terms of the Section was

struck down as invalid. Subsequent to the decision of the Supreme Court, S. 4 has been substituted by a new Section by Amendment Act 23 of

1973. The Section as it now stands clearly lays down that the cost of construction of the building and the cost of the provisions of any one or more

of the amenities specified in Schedule I shall be as on the date of the application for fixation of fair rent. The contention of the learned counsel for

the revision petitioners in C.R.P. 3253 of 1983 cannot, therefore, be accepted. The cost of the construction of the building has to be assessed as

on the date of the application with reference to the rates adopted for the purpose by the Public Works Department.

The cost of amenities under S. 4(4)(ii) of the Act has to be worked out on the cost of the building and the market value of the site. The building

has passages on all four sides, good ventilation with a number of doors and windows and electric connection. There is also a well. Taking all these

factors into consideration the learned Rent Controller fixed the amenities at 20% which works out at Rs. 24,236.16.

As regards the amenities mentioned in S. 3(5) of the Rent Controller has allowed 15% of the cost of construction working out at Rs. 5,348.33.

This conclusion of the Rent Controller has been affirmed by the Appellate Authority and no challenge can be made thereto.

The total cost of construction comes to Rs. 1,50,795.28. Working out the fair rent at 12% of the gross return, the amount of the fair rent comes

to Rs. 1,507.65 which has been rounded off to Rs. 1,510. This conclusion of the Rent Controller which has been confirmed by the Appellate

authority does not suffer from any infirmity.

It is then urged by the learned counsel for the tenant revision petitioner in C.R.P. 2006 of 1983 that the landlords have themselves claimed that

the building will easily fetch a rent of Rs. 1250 and the Rent Controller has, therefore, no authority to fix the fair rent at a rate higher than the rate

claimed by the landlords. This contention cannot be accepted. The fair rent is fixed for the building in question in accordance with the provisions of

the Act. It is not fair rent for the landlord or for the tenant, but for the building and as such the Rent Controller is free to fix the fair rent as per law

untrammeled by the contentions of the parties. In the result, I uphold the fair rent fixed by the Rent Controller at Rs. 1510 per month and

confirmed by the Appellate Authority. Both the revision petitions fail and are dismissed. No costs.