N. Krishnaswamy Mudaliar vs The Controller and Authorised Officer of Buildings, North Arcot, Fort Vellore and others

K. M. Natarajan, J.—These two revisions arise out of the order passed by the learned Subordinate Judge, Vellore, viz., the Appellate Authority in C.M.A. 66 of 1980 and C.M.A. 65 of 1980 confirming the orders passed by the learned Rent Controller, Vellore in R.C.O.P. 87 of 1978 and 86 of 1978 respectively. The landlord is the petitioner herein in both the revisions. He has filed the two R.C.O. Ps., for fixation of fair rent. According to the petitioner, the first respondent, viz., the Controller and Authorised Officer of Buildings, Vellore, has taken the premises on a monthly rent of Rs. 150 and let out the same to the second respondent in both petitions. It is alleged that the cost of construction of the building comes to Rs. 25,000, that the building was constructed in the year 1956 that the market value of the site comes to Rs. 29,750, and hence, a sum of Rs. 300 has to be fixed as fair rent. The said claim was resisted by the respondents and they contended inter alia that the age of the building is 35 years and the cost of the building is only Rs. 10,000, that after depreciation, the total value of the building would come to Rs. 18,264, only and that the petition for fixation of fair rent is not sustainable. The learned Rent Controller, on the basis of the report of the Commissioner appointed to measure the entire building with the help of the licensed surveyor and on consideration of Exs. A1 and A2 and the evidence of P.W. 2, the Advocate-Commissioner, arrived at a finding that the cost of construction totally comes to Rs. 68,85 of after depreciation for 20 years. He has fixed the cost of site on the basis of a sale deed Ex. A4 in favour of the Municipality, at Rs. 7 per sq. ft. As per his calculations, the fair rent for each building comes to Rs. 450 per mensem; but since the petitioner herein has claimed only Rs. 300 per mensem, per building in his petitions, the same was fixed as fair rent. Aggrieved by the same, the landlord, viz., the petitioner herein, has preferred the C.M.As., and he was unsuccessful, as they were dismissed on the same ground. Hence these two revisions.

It is seen from the orders passed by both the learned authorities below, that the fair rent for each of the buildings works out at Rs. 450 per mensem and there is a concurrent finding in respect of the quantum, which was arrived at according to the procedure contemplated under rules and on the cost of the building as well as the value of the site. The respondents have not challenged the said findings by way of either appeal or revision.

The only point that arises for consideration is whether even though the fair rent works out to Rs. 450 per mensem, for each building, the petitioner is estopped from claiming more in view of the pleadings in the petitions filed for fixation of fair rent The learned counsel for the petitioner drew my attention to a decision of the Supreme Court in Raval and Co. Vs. K.G. Ramachandran and Others, rendered by five Judges of the Supreme Court. According to the majority judgment, it was held that :--

The analysis of the Act shows that it has a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies. The definition of the term ''landlord'' as well as the term ''tenant'' show that the Act applies to contractual tenancies as well as cases of statutory tenants and their landlords. On some supposed general principles governing all Rent Acts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that both landlords and tenants can apply for fixation of fair rent. A close reading of the Act shows that the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory entrant. What is fixed is not the fair rent payable by the tenant or to the landlord who applies for fixation of fair rent but fair rent for the building, something like an incident of the tenure regarding the building, (underlining is mine).

The said decision arises out of a Full Bench decision of this Court in Raval and Co. and Another Vs. K.G. Ramachandran and Others,

My attention was also drawn to another decision of the Supreme Court in Mistry Premjibhai Vithaldas Vs. Ganeshbhai Keshavji, , wherein their Lordships of the Supreme Court held that the fair rent has to be ascertained by means of specified procedure prescribed by the Act and not according to the rent quoted by the tenant or the landlord. In view of the ratio in the above decisions of the Supreme Court and also in view of the provision of S. 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it is clear that the fair rent has to be fixed only according to the procedure laid down under S. 4 of the Tamil Nadu Act 18 of 1960 and the mare fact that the landlord has mentioned that the fair rent would be Rs. 500 per mensem could not in any way prevent the court in fixing the fair rent at a higher rate and the petitioner is not estopped from claiming more as there cannot be any estoppel against statute. For all these reasons, I hold that the fair rent for each of the buildings is to be fixed at Rs. 450 per mensem and the orders passed by the learned authorities below are liable to be modified to this extent. In the result, the civil revision petitions are allowed and the orders passed by the learned authorities below are modified and the fair rent is fixed at Rs. 430 per mensem for each of the building. There will be no order as to costs.