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P.T. Srinivasan Vs. Sri Malleeswarar Devasthanam by Trustees and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1974)2MLJ172
AppellantP.T. Srinivasan
RespondentSri Malleeswarar Devasthanam by Trustees and ors.
Excerpt:
.....set under the act for computation of the value of the property and as such the fixation of the value of the site in the occupation of the appellant at the rate of rs. -6 is an order of the assistant commissioner of the year 1966. in general, it may be stated that the notices issued under the urban land tax act as well as the order passed under the same act, have also been relied upon by the commissioner to fix the value of the site in question at rs. on the other hand, what has been urged before the lower court was that the commissioner had failed to fix the value of the land with reference to the average value of the transactions which took place in that locality. that the order contemplated under section 9 (1) (a) (i) must obviously be a composite order and cannot be a multiplicity..........a-3, dated 12th december, 1966 is a notice issued under the madras urban land tax act fixing the site value in that locality at rs. 10,000 per ground. exhibit a-4, dated 1st august, 1970 is an order of the commissioner, hindu religious and charitable endowments fixing the value of sites in the locality in question at rs. 15,000 per ground. exhibits a-5 and a-7 of the year 1967 respectively are notices issued under the madras urban land tax act and exhibit a.-6 is an order of the assistant commissioner of the year 1966. in general, it may be stated that the notices issued under the urban land tax act as well as the order passed under the same act, have also been relied upon by the commissioner to fix the value of the site in question at rs. 12,000 per ground.3. the contention of mr......
Judgment:

S. Natarajan, J.

1. In a suit for ejectment filed by the trustees of Sri Malleswarar Devasthanam, the respondents herein, the defendant, viz., the appellant in this appeal, contended that he was entitled to the benefits conferred by the Madras City Tenants Protection Act, 1921 and in accordance with such plea, he filed a petition, I.A. No. 16074 of 1967 under Section 9 (1) of the Madras City Tenants Protection Act, 1921, hereinafter referred to as the Act. The respondent conceded the claim of the appellant and made an endorsement to that effect on 13th December, 1969. Thereafter, the learned IVth Assistant Judge, City Civil Court who dealt with the petition appointed a Commissioner to inspect the property in the occupation of the appellant and give a report about the probable value of the property. After making a local inspection and after taking into consideration the documents filed by the respondents the Commissioner gave his report, Exhibit G-1, stating therein that the total extent of two grounds and 2,127 square feet which has to be conveyed to the appellant can be so done at the rate of Rs. 12,000 per ground. It may be mentioned even at this juncture that the appellant who now contends that the valuation of the property at Rs. 12,000 per ground by the Commissioner is excessive, did not file any document before the Commissioner in support of his contention that the site was not worth Rs. 12,000 per ground but was worth much less. After independently considering the documents furnished by the respondents and the report of the Commissioner, the learned IVth Assistant Judge accepted the valuation given by the Commissioner and called upon the appellant on to deposit a sum of Rs. 34,635 within a period of one year towards the value of the site. It is as against that order, the tenant has come forward with this appeal.

2. Mr. K. Shanmugham, learned Counsel for the appellant would contend that the Commissioner as well as the lower Court have committed an error in taking into consideration several documents which were outside the period set under the Act for computation of the value of the property and as such the fixation of the value of the site in the occupation of the appellant at the rate of Rs. 12,000 per ground is unsustainable. To appreciate the contention of the learned Counsel the dates of the several documents which have been taken into consideration by the Commissioner and the learned IVth Assistant Judge have got to be mentioned. Exhibit A-1, dated 3rd April, 1968 is a registration copy of a sale deed which discloses sale of a site situate in Prasanna Vinayagar Koil Street, Mylapore, a locality within a distance of two furlongs from the land in question at the rate of Rs. 12,270 per ground. Exhibit A-2, dated 11th September, 1970 is the registration copy of sale deed disclosing a sale of vacant site in a locality close by to the site in question at the rate of Rs. 15,000 per ground. Exhibit A-3, dated 12th December, 1966 is a notice issued under the Madras Urban Land Tax Act fixing the site value in that locality at Rs. 10,000 per ground. Exhibit A-4, dated 1st August, 1970 is an order of the Commissioner, Hindu Religious and Charitable Endowments fixing the value of sites in the locality in question at Rs. 15,000 per ground. Exhibits A-5 and A-7 of the year 1967 respectively are notices issued under the Madras Urban Land Tax Act and Exhibit A.-6 is an order of the Assistant Commissioner of the year 1966. In general, it may be stated that the notices issued under the Urban Land Tax Act as well as the order passed under the same Act, have also been relied upon by the Commissioner to fix the value of the site in question at Rs. 12,000 per ground.

3. The contention of Mr. Shanmugham is that according to Section 9 (1) (b) of the Act, the lower Court was entitled to take into consideration only transactions which took place within three years before the date when the tenant's right to buy the land was conceded by the lower Court and that such a procedure has not been followed by the lower Court and consequently the order passed by it is not legally sustainable. In support of this contention, the learned Counsel places reliance upon the following portion occurring in Section 9 (1) (b) of the Act:

The price aforesaid shall be the average market value of the three years immediately preceding the date of the order.

On a consideration of the matter, I find that the contention of the learned Counsel is wholly unsustainable.

4. Before dealing with the relevant - sections in the Act, which will have a bearing upon the dispute on hand, it is necessary to set out certain facts. The objection now raised in the appeal as regards the period with reference to which the Commissioner should have evaluated the property was not raised before the lower Court by way of objections to the Commissioner's report. On the other hand, what has been urged before the lower Court was that the Commissioner had failed to fix the value of the land with reference to the average value of the transactions which took place in that locality. Before the lower Court also, this objection has not been placed as no reference is made by the trial Judge to any such objection raised by the tenant. As a matter of fact, even in the grounds set out in the memorandum of appeal, the objection has not been taken by the appellant. In spite of these things, I gave opportunity to the learned Counsel for the appellant to raise this objection as he pleaded that it was one of law and therefore required consideration by this Court.

5. The relevant portions of Section 9 which require mention in connection with the contention put forth by the learned Counsel for the appellant are as follows:

9 (1) (a) (i): Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act, 1862, taken by the landlord may, within one month of the date of the Madras City Tenants' Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of, the extent of land specified in the application.

9 (1) (b): On such application, the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. The Court shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under clause (a) whichever is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The Court shall order that within the period to be determined by the Court, not being less than three months and not more than three years from the date of the order, the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.

From the portions of the section extracted above, it may be seen that the order that has to be sought for by a tenant filing a petition under Section 9 (1) (a) should be for the Court to direct the landlord to sell for a price to be fixed by the Court, the whole or part of the extent of the land specified in the application.

6. Mr. Shanmugham would contend that an order to be passed under Section 9 (1) (a) will actually consist of two stages viz., (1) an order in the first instance upholding the contention of the tenant that he is entitled to have direction in his favour calling upon the landlord to sell to him the whole or part of the extent of land specified in the application and (2; a further order by the Court at a later date fixing the price for the extent of land so ordered to be sold by the landlord to the tenant. The wording of Section 9 (1) (a) (i) itself does not lend support to the interpretation given by the learned Counsel. As a matter of fact, the records themselves show that the lower Court has not passed two separate orders as is sought to be made out by the counsel. When the respondents (plaintiffs) made an endorsement on the application of the appellant that the Devasthanam concedes the right of the tenant to get a sale of the land leased out to him, the learned IV Assistant Judge has not passed an order in terms of the endorsement and held that the tenant was entitled to a preliminary order in his favour and that a further order will ensue after the price for the land offered to be sold was determined. In the very nature of things, a Court dealing with an, application under Section 9(1) (a) cannot pass such a piecemeal order but on the other hand it has to pass a composite order which will make reference to the right of the tenant to have the land sold to him, the extent of the land to be sold to him and also the price for which that is to be sold. That the order contemplated under Section 9 (1) (a) (i) must obviously be a composite order and cannot be a multiplicity of orders is clearly brought out by the words occurring in Section 9 (1) (b). The first sentence in Section 9 (1) (b), states that on application being made under Section 9 (1) (a), the Court has to decide the minimum extent of land which has to be sold to the tenant for his convenient enjoyment of the property. The next sentence makes reference to the duty of the Court to fix the price of the land which has to be sold to the tenant by the landlord. The third sentence provides the guideline for the Court as to how the market value of the land has to be fixed and that makes reference to the average market value of the land during the three years immediately preceding the date of the order. The next sentence provides that the Court has got the right to call upon the tenant to pay the price fixed for the land at a period fixed by the Court, such period, however, not being less than three months and not mere than three years from the date of the order. The word 'order' occurring in this sentence can have reference only to a composite order passed by the Court under Section 9 (1) (a) (i) and cannot have reference to two independent and separate orders as is sought to be contended by the learned Counsel for the appellant. If it was the intention of the Legislature that two orders should be passed, viz., first an order upholding the claim of the tenant and second a further order fixing the value of the land, the Legislature would have specifically made reference to the two orders that are to be passed by the Court at two different stages of the case. In the. very nature of things, the order contemplated under Section 9 (1) (a) (i) cannot have a dual aspect, viz., one phase dealing with the right of the tenant to get a sale of the land over which he has put up the superstructure and the other phase of it dealing with the price the tenant has to pay for the land made available to him by a prior order of the Court in his favour; the reason is that it is open to the tenant to refuse to abide by the order of the Court and pay the price fixed for the land and thereby give up his rights under the Act to buy the land leased to him. If the tenant were to adopt such a course, it would lead to the anomalous position of the earlier order of the Court declaring the tenant to be entitled under Section 9 (1) (a) (i) of the Act to buy from the landlord the site leased out to him and over which he has constructed the superstructure, remaining unaltered and unaffected and the later order of the Court calling upon the tenant to pay certain price for the land remaining unimplemented. The landlord would then be left in the unenviable position of not getting from the tenant the price for the land ordered to be sold by the Court and, at the same time, being confronted with the earlier order of the Court declaring the tenant to be entitled to get sale of the land leased out to him as per Section 9 (1) (a) (i) of the Act. It is only to avoid such tragic consequences that the order contemplated under Section 9 (1) (a) (i) of the Act must be a composite one, i.e., declaring the right of the tenant to obtain a sale of the land from the landlord and also fixing the price at which the tenant can obtain a sale of the land in his favour. If the tenant fails to comply with the order by paying the price for the land when called upon to do so by the Court at the rate fixed by it, the Court can set aside the order in favour of the tenant in its entirety and declare the landlord to be eligible to evict the tenant and take possession of the land.

7. From another point of view also, the contention of Mr. Shanmugham cannot be sustained; It is needless to say that the average market Value fixed by the Court under Section 9 (1) (b) must have close proximity to the order passed by the Court. If the contention of the learned Counsel for the appellant were to be upheld, the contingency may arise in certain cases where a long interval of time may be taken by the Commissioner to inspect the property and fix its average market value. In such cases, the order of the Court fixing the average market value of the land will have no reference to the state of affairs when the Court passes its order and surely such a state of affairs would not have been contemplated by the Legislature. It must therefore necessarily be held that the average market value has to be computed with reference to transactions which took place within three years prior to the Court passing its order fixing the value of the site under the occupation of the tenant. Therefore, the contention of the learned Counsel that the Commissioner as well as the lower Court have committed an error in taking into consideration documents reflecting transactions of later origin than the period 13th December, 1966 to 13th December, 1969, cannot be sustained.

8. Once this objection of the learned Counsel for the appellant is discountenanced, there is really no basis for the appellant to contend that the fixation of the value at Rs. 12,000 per ground is excessive or unfair. The land in question., though it does not abut any main road, has close proximity to two important streets, viz. Chinna-Malleswarar Street on the one side and Prasanna Vinayagar Koil Street on another side. It is seen from the Commissioner's report that in close proximity to the site, markets, bus-stands, school, temples are all situate. The Commissioner has further stated that the property is situate in an important and busy locality. The sale transaction under Exhibit-A-1 discloses that the site sold therein has been sold at the rate of Rs. 12,270 per ground. The learned Counsel for the appellant cannot advance any criticism about this sale deed because it is admittedly within the period conceded by him. He would, however, contend that the sale is inclusive of the coconut trees standing on the site. However, the existence of coconut trees would not have enhanced the value of the site appreciably because, of necessity, the number of coconut trees thereon must have been only small when, admittedly, the sale deed makes reference to the site sold being a vacant building site. The appellant must really consider himself fortunate in getting the suit site at the rate of Rs. 12,000 per ground and his contention in the memorandum of appeal that the site should be sold to him at the rate of Rs. 6,000 per ground, besides being devoid of any basis, is one without any grace or justice.

9. In the result, I find that the appeal is wholly devoid of merit and it will therefore stand dismissed with costs.


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