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R. Subbarajulu Vs. Sulaiman, Proprietor of Naaz Dry Cleaners (Died) and ors. and Sulaiman (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ348
AppellantR. Subbarajulu
RespondentSulaiman, Proprietor of Naaz Dry Cleaners (Died) and ors. and Sulaiman (Deceased) and ors.
Cases ReferredR. Sivagnanam and Anr. v. Everest Boarding and Lodging
Excerpt:
- - the building is in a very good condition with modern amenities. the building has got all modern amenities like internal water supply, sanitary and electrical installations. 300. it is also the case of the landlord that calculating the said value of the site and also the cost of construction of the building as well as the allowances payable under the act, the rent for the building in question at the rate of 12 per cent, of the gross return would come to not less than rs. the building is about a century old and is not in a good condition and is without any amenity. the facts and circumstances in the case clearly show that naaz dry cleaners and launderers was a partnership firm to begin with and it always continued as a partnership firm. , it would be better to get the signature or.....orderr. sengottuvelan, j.1. c.r.p. no. 2493 of 1978 is filed by the landlord against the order of the appellate authority in c.m.a. no. 308 of 1977 on the file of the court of the appellate authority and the principal subordinate judge of madurai. originally the landlord filed r.c. o.p. no. 415 of 1974 on the file of the court of the rent controller and the district munsif of madurai for fixation of fair rent in respect of the premises bearing door no. 15-aj 1, westveli street, madurai, belonging to him. the case of the landlord before the rent controller is that the tenant who is described as sulaiman, proprietor of naaz dry cleaners, took on lease the above said premises for non-residential purposes orally agreeing to pay a rent of rs. 75, per month the tenancy month being the english.....
Judgment:
ORDER

R. Sengottuvelan, J.

1. C.R.P. NO. 2493 of 1978 is filed by the landlord against the order of the appellate authority in C.M.A. No. 308 of 1977 on the file of the Court of the appellate authority and the Principal Subordinate Judge of Madurai. Originally the landlord filed R.C. O.P. No. 415 of 1974 on the file of the Court of the Rent Controller and the District Munsif of Madurai for fixation of fair rent in respect of the premises bearing door No. 15-Aj 1, Westveli Street, Madurai, belonging to him. The case of the landlord before the Rent Controller is that the tenant who is described as Sulaiman, Proprietor of Naaz Dry Cleaners, took on lease the above said premises for non-residential purposes orally agreeing to pay a rent of Rs. 75, per month the tenancy month being the English Calendar month. It is also the case of the landlord that the building is situate in a very important locality and it is very near to the bus stand and the railway unction and the building is 18 years old. The building is in a very good condition with modern amenities. It is avererd in the rent control application that the building was built with brick and cement, plastered with cement and the windows, doors, door frames and shutters are all made of teak-wood and hence the building satisfies the requirement of class I building under the Tamil Nadu Buildings (Lease and Rent Control) Act. The building has got all modern amenities like internal water supply, sanitary and electrical installations. Having regard to the nature of the building, the Rent Controller ought to have allowed 30 per cent. of the cost of construction as per Section 4(5)(a). The depreciation can be allowed only at 0.5 per cent, per annum. It is also averred in the application that the cost of one square foot of the site in that vicinity is not less than Rs. 300. It is also the case of the landlord that calculating the said value of the site and also the cost of construction of the building as well as the allowances payable under the Act, the rent for the building in question at the rate of 12 per cent, of the gross return would come to not less than Rs. 600 per month. The tenant, Sulaiman, Proprietor, Naaz Dry Cleaners, in his counter-statement to the rent control application stated that he had advanced a sum of Rs. 10,000 to the landlord on 13th January, 1965 without interest and hence it was agreed that a sum of Rs. 75 was reasonable rent for the above said premises. The building is about a century old and is not in a good condition and is without any amenity. There is no window or door or any kind of amenity such as water facility, electric light etc. Only the premises measuring '9J x 16 ' was let out to the tenant and the tenant at his own cost put up three tube lights, a collapsible spring gate in the front, paved the front portion with cement stones and put up some wooden racks and other furniture. Above the portion let out to the tenant there is another construction which is let out to some other tenant. There is no sky glass for passage of light. The building could not be classified even as Class IV building, and as such no allowance can be made as per Section 4(5)(a). The landlord is also not entitled to anything towards the cost of the amenities. The rent of Rs. 75 itself is a fair rent in view of the fact that the tenant had advanced a sum of Rs. 10,000 to the landlord without any interest.

2. The learned Rent Controller after considering the evidence let in before him fixed the fair rent for the premises at Rs. 340 per month from the date of the application. As against the said order the tenant filed an appeal in C.M.A. No. 308 of 1977 on the file of the Court of the appellate authority and the Principal Subordinate Judge, Madurai, and the learned appellate authority after going through the records and after hearing the arguments allowed the C.M.A. No. 308 of 1977 and fixed the fair rent for the above said premises at Rs. 194. Aggrieved by the above order this civil revision petition is filed by the landlord.

3. C.R.P. No. 2494 of 1978 relates to a neighbouring premises filed by the very same landlord against the order of the appellate authority in C.M.A. No. 309 of 1977 on the file of the appellate authority and the Principal Subordinate Judge of Madurai. Originally the landlord, the civil revision petitioner, filed R.C.O.P. No. 395 of 1974 on the file of the Court of the Rent Controller and the District Munsif of Madurai for fixing the fair rent for the petition-mentioned premises, occupied by one K.K. Viswanathan. The tenant was paying a rent of Rs. 49 per month. The case of the landlord before the Rent Controller is that the building is situate in a very important locality and the same was constructed within 18 years; that the building can be classified as Class I building, that the bus stand, railway station and cinema theatres are near to this building and that the building has got all the amenities and conveniences. Hence an allowance of 25 per cent, has to be allowed for the amenities. Further the building has internal water supply, sanitary and electrical installations and hence an allowance of 30 per cent, of the cost of the construction also will have to be allowed. It is also the case of the landlord that the market value of the site per square foot is not less than Rs. 200. The tenant, respondent, herein contended that the portion in his occupation is only 8' x 4' that the back portion and southern portion are enclosed by wooden plank, that the shop has zinc sheet doorway only, that the building is 60 years old and that the building can be classified only as Class ITI building. The tenant also contended that the market value of the site per square foot will not exceed Rs. 10 and the present rent of Rs. 49 per month itself is more than the fair rent. The learned Rent Controller considering the evidence both oral and documentary let in before him came to the conclusion that the market value of the site can be fixed at Rs. 200 per square foot and fixed the fair rent for the petition-mentioned premises at Rs. 100. As against the order of the Rent Controller the tenant filed an appeal in C.M.A. No. 309 of 1977 on the file of the Court of the appellate authority and the Principal Subordinate Judge, Madurai and the appellate authority after going through the records allowed the appeal in part and fixed the rent at Rs. 50 per month with effect from the date of application. As against the orders of the appellate authority in C.M.A. No. 309 of 1977, C.R.P, No, 2494 of 1978 is filed,

4. Since common questions arise in both the civil revision petitions, they are dealt with together.

5. The respondent in C.R.P. No. 2493 of died pending the above civil revision petition and hence the petitioner in the above civil revision petition filed CM.P. No. 3354 of for impleading the legal representatives of the deceased Sulaiman, vis., (1) Byrunisa Begum, (2) Sbagil (minor aged 15 years), (3) Misha (minor aged 13 years), and (4) Shabnam (minor aged 11 years) and C.M.P. No. 3355 of 1979 to appoint Byrunisa Begum, the widow of the deceased Sulaiman, as the guardian of the minors. One Hajee Moosa Oma, a third party, filed a counter-affidavit in CM.P. No. 3354 of 1979 stating that he is one of the partners of 'Naaz Dry Cleaners and Launderers' and the deceased Sulaiman, the respondent in the civil revision petition, is his elder brother. He states in the counter-affidavit that the deceased Sulaiman, was not the proprietor of 'Naaz Dry Cleaners' as shown in the cause title but was a partner of the business which was run in partnership among four brothers and this fact is referred to in the counter-affidavit filed in the rent control application itself. The above-said Sulaiman had retired from the partnership firm on account of his continued ill-health and from 1st April, 1978, the other two brothers and himself are the partners of the firm and the minor son of Sulaiman has been admitted to the benefits of the partnership. Hence the petition filed for bringing on record the personal legal representatives of the deceased Sulaiman as if he was the sole proprietor of the business is not maintainable, and only the partners of the partnership firm can be impleaded as party respondents in the civil revision petition. It is also stated in the counter-affidavit that Hajee Sulaiman Omar passed away on 22nd August, 1978 at the Christian Medical Hospital, Vellore and not on 12th December, 1978 as alleged in the petition. Hence the present petition filed after 30 days allowed under the Tamil Nadu Buildings (Lease and Rent Control) Act is barred by time.

6. The landlord filed a reply affidavit stating that he came to know about the death of Sulaiman only in the first week of February, 1979, and thereafter he immediately took steps for filing a petition for impleading the legal representatives of the deceased Sulaiman and in the second week of February, 1979, the said petition was filed and hence the application is not barred by time since he is entitled to file a petition within 30 days from the date of knowledge of the death of the deceased Sulaiman. The legal representatives of late Sulaiman who are the respondents in C.M.P. No. 3354 of 1979 remain ex parte.

7. C.R.P. No. 478 of 1981 is a petition filed by a third party, viz., Naaz Dry Cleaners and Launderers, represented by Hajee Moosa Omar seeking to implead the petitioner in C.M.P. No. 478 of 1981 as respondent in C.R.P. No. 2493 of 1978. The averments in the affidavit in support of CM.P. No. 478 of 1981 are as follows:

8. Hajee Moosa Omar, the deponent of the affidavit in support of CM.P. No. 478 of 1981 avers that he is one of the partners of 'Naaz Dry Cleaners and Launderers', a partnership firm carrying on business as Launderers and dry clearners at Madurai in the petition-mentioned premises. In the rent control application the landlord had impleaded Sulaiman as the Proprietor of Naaz Dry Cleaners as respondent. Naaz Dry Cleaners and Launderers is a partnership firm in which Sulaiman, the deceased respondent, and the elder brother of the deponent were partners. This fact is also referred to in the counter-affidavit filed in support of the rent control application. Further, the landlord did not take any steps to amend the cause-title. Now that Sulaiman is dead, the landlord has filed an application in CM.P. No. 3354 of 1979 to bring on record the personal legal representatives of Sulaiman as respondents in the civil revision petition. It is also averred in the affidavit that Sulaiman retired from the partnership firm on account of his ill-health and from 1st April, 1978 two of his brothers and himself are partners of the firm and the minor son of Sulaiman has been admitted to the benefits of the partnership. This partnership firm or its present partners are proper and necessary parties to the civil revision petition and they will have to be impleaded as party respondent to meet the ends of justice.

9. To this application the landlord filed a counter-affidavit with the following averments. Haji Moosa Omar, the deponent of the affidavit filed in support of CM.P. No. 478 of 1981, has no right, title or interest to represent the tenant. Though in the counter statement filed by the deceased Sulaiman in the tent control application filed against the Naaz Dry Cleaners and Launderers (tenant) for fixation of fair rent it was contended that the tenant is a partnership firm, the said contention was not seriously pressed or agitated in the proceedings. This would be evident from the fact that late Sulaiman filed the appeal in C.M.A. No. 308 of 1977 on the file of the appellate authority (against which the civil revision petition in CR.P. No. 2493 of 1978 is filed) as sole proprietor of Naaz Dry Cleaners and Launderers. In the circumstances it is not open to Haji Moosa Omar to contend that he is entitled to represent the tenant on the death of Sulaiman and hence the landlord prayed for the dismissal of the C.M.P. No. 478 of 1981.

10. The above civil miscellaneous petitions Nos. 3354 of 1979, 3355 of 1979 and 478 of 1981 will have to be considered before the civil revision petition is taken up for consideration. In order of to dispose of these civil miscellaneous petitions we will have to ascertain who is the tenant in respect of the petition mentioned premises. It is the contention of the landlord that Sulaiman is the tenant. On the other hand the contention of the petitioner in C.M.P. No. 2493 of 1978 is that the partnership firm, Naaz Dry Cleaners with Sulaiman and his three brothers as partners is the tenant and that Sulaiman had retired from the partnership and that the other three partners along with a minor son of Sulaiman continued the partnership business and as such the partnership firm is the tenant. The partnership firm, has also filed a petition in C.R.P. No. 478 of 1981 to implead the same as a party respondent to the civil revision petition. It also contended that CM.P. No. 3354 of 1979 having been filed 30 days after the death of Sulaiman, which had occurred on 22nd August, 1978, is barred by time.

11. We will have to first consider the question whether C.R.P. No. 3354 of 1979 is belated and on that account the same is not maintainable. As per Rule 25 of the, Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 every application for making the legal representative or representatives of the deceased person, party to the proceeding under the Act shall be preferred within one month from the date of the death of the person concerned or the date of having knowledge of the death of the person concerned. Hence according to Rule 25 an application can be filed within 30 days from the date of knowledge of the death of the persons. Though in the affidavit in support of the petition in C.M.P. No. 3354 of 1979, there is no averment with reference to the fact that the landlord came to know about the death of Sulaiman only during the first week of February, 1979, the landlord filed a reply affidavit stating that he came to know about the death of Sulaiman only in the first week of February, 1979 and that he had filed the civil miscellaneous petition, thereafter, viz., in the second week of February, 1979. In view of the averments in the reply affidavit that the landlord came to know about the death of Sulaiman during the first week of February, 1979 and inasmuch as this civil miscellaneous petition has been filed on 16th February, 1979 within 30 days from the date of knowledge. C.M.P. No. 3354 of 1979 to implead the legal representatives of the deceased tenant, cannot be said to be barred. Hence the objection that the said petition is barred by time is negatived.

12. The next question we will have to decide in the above civil miscellaneous petition is whether the tenant is an individual viz., Sulaiman or the partnership firm consisting of Sulaiman and his three brothers as partners. In R.C.O.P. No. 415 of 1974 the landlord describes the tenant as Sulaiman (Proprietor) Naaz Dry Cleaners. In paragraph 4 of the counter-affidavit filed in R.C O.P. No. 415 of 1974 it is stated that the tenant Sulaiman is not the sole proprietor of the business and he is only a partner. Thus in the earliest possible point of time the tenant had taken the plea that the respondent in R.C.O.P. No. 415 of 1974 is not an individual person but a partnership firm. But the question whether the respondent in R.C.O.P. No. 415 of 1974 is an individual person or a partnership firm was not gone into during the enquiry of the rent control application. In the appeal in C.M.A. No. 308 of 1977 before the appellate authority filed by the tenant the appellant is mentioned as Sulaiman (Proprietor) Naaz Dry Cleaners. But below the signature of the appellant in the grounds of appeal in C.M.A. No. 308 of 1977 a seal which is usually used for the partnership firm is used and the appellant had also signed as partner. When the signature in the ground of appeal by Sulaiman is as partner, the cause-tile in the grounds of appeal as Sulaiman (Proprietor) Naaz Dry Cleaners can only be taken as a mere repetition of the cause title in the rent control application. An argument advanced on behalf of the landlord is that in view of the cause title in C.M.A. Nos. 308 and 309 of 1977 the tenant cannot now put forward the plea that the tenant is a partnership firm. It will have to be borne in mind that if the cause title is different from the rent control application the appellate authority will not entertain the appeal. For this reason and also because of the fact that Sulaiman had only signed as partner in C.M.A. No. 308 of 1977 from the mere fact that in the cause-title the appellant's name is mentioned as found in the rent control application the tenant cannot be debarred from putting forward the plea that the tenant is not an individual but a partnership firm. The true copy of the partnership deed dated 6th November, 1972, between Hajee Sulaiman and his three brothers vis., Akbar Omar, Hajee Moosa Omar and Mohamed Ismail and the reconstituted partnership deed dated 1st April, 1978, between Akbar Omar, Hajee Moosa Omar and Mohamed Ismail which recites that Hajee Sulaiman retired from the partnership business due to his ill-health are produced for my perusal. On 26th March, 1979, the learned advocate for the tenant in the C.R.P. No. 2493 of 1978 wrote a letter to the advocate for the landlord stating that the tenant is described as Sulaiman (Proprietor) Naaz Dry Cleaners and Launderers and that he had entered appearance on behalf of Naaz Dry Cleaners and Laundarers which is a partnership firm represented by Hajee Moosa Omar, one of the partners and that Sulaiman who was originally one of the partners in the firm retired from the firm and died later on and requesting the advocate for the landlord to take necessary steps to amend the cause title of the civil revision petition. To this the learned advocate for the landlord replied that he had already filed a C.M.P. to bring on record the legal representatives of the deceased respondent and another C.M.P. for the appointment of the guardian for the minor legal representatives and if Hajee Moosa Omar was a partner of any firm and if other partners have to be brought on record, requested the advocate for the tenant to tile the necessary application. This circumstance is also canvassed by the learned advocate for the tenant as a circumstance in his favour. The facts and circumstances in the case clearly show that Naaz Dry Cleaners and Launderers was a partnership firm to begin with and it always continued as a partnership firm. Since the matter related only to the fixation of fair rent no attention was bestowed to the question whether the tenant, is a pro-prietory concern or a partnership firm. But on this account the partnership firm cannot be made to suffer. From the available evidence and the circumstances in this case and taking into consideration the allegations in the counter statement to R.C.O.P. No. 415 of 1978 the capacity in which the appellant had signed C.M.A. No. 308 of 1977 before the appellate; authority and the true, copies of the rent deeds produced for my perusal it is possible to conclude prima facie that the tenant is a partnership firm. In order to meet the ends of justice the reconstituted firm consisting of three partners of the erstwhile partnership firm will have to be impleaded as party-respondent in the civil revision petition. The respondents in C.M.P. No. 3354 of 1979 though served with notice have not come forward with any objection. Though there is sufficient material to show that Sulaiman, the deceased tenant, was only a partner in the Naaz Dry Cleaners and Launderers, yet, in order to have an effective adjudication in the matter, the legal representatives of late Sulaiman also will have to be impleaded as party-respondents to the civil revision petition. Hence C.M.P. No. 3354 of 1979 to bring on record the legal representatives of deceased Sulaiman and C.M.P. No. 3355 of 1979 to appoint Byruniza Begum, widow of Sulaiman as the guardian of the minor respondents 3 to 5 and CM.P. No. 478 of 1981 to implead the re-constituted partnership firm viz., Naaz Dry Cleaners and Launderers represented by Hajee Moosa Omar as party respondent in C.R.P. No. 2493 of 1978 are allowed.

13. Coming to the merits of C.R.P. No. 2493 of 1978, the learned Rent Controller arrived at the market value of the site on while the premises is situate at Rs. 200 per square foot. This has been done taking into consideration Exhibit A1, a registered sale deed, executed by the; landlord himself with respect to a portion of the building just west of I the petition-mentioned building and making allowance for the fancy price alleged to have fetched. Relying upon the Commissioner's report Exhibit C-1 the Rent Controller fixed the value of the superstructure at Rs. 10,622 and the age of the building at 50 years. Calculating the depreciation at one per cent, for 50 years and making allowance with regard to the amenities and adopting the statutory formula the learned Rent Controller arrived at the cost of the superstructure at Rs. 5,824. Adding the cost of the site of Rs. 28,950 with the cost of the superstructure the learned Rent Controller arrived at the total cost at Rs. 34,774 and fixed the fair rent at Rs. 348 per month for the petition mentioned premises.

14. As against the decision of the Rent Controller fixing the fair rent at Rs. 348 per month for the petition-mentioned premises the tenant filed an appeal in C.M.A. No. 308 of 1977. Before the appellate authority a curious procedure seems to have been adopted. The learned advocate for the landlord seems to have filed a memo, stating that the value of the building need not be taken into consideration and that the fair rent may be fixed on the value of the site alone. The learned appellate authority seems to have taken the memo, into consideration and reduced the fair rent fixed by the Rent Controller to Rs. 194 per month, 'it is argued on behalf of the landlord that the procedure for fixation of fair rent on the basis of the value of the site and the building is mandatory and the appellate authority ought not to have taken into consideration the memo, filed by the learned advocate for the landlord and fixed the fair renlt on the value of the site alone. Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, under which the rent control proceedings were started reads as follows:

4. Fixation of fair rent. - The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following Sub-Sections.

(2) The fair rent for any residential building shall be nine per cent, gross return per annum on the total cost of such building.

(3) The fair rent for any non-residential building shall be twelve per cent, gross return per annum on the toal cost of such building.

(4) The total cost referred to in Sub-section (2) and Sub-section (3) 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:

Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account 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 the excess portion of the vacant land, being treated as amenity:

Provided further that the cost of provision of amenities specified in Schedule I shall not exceed-

(i) in the case of any residential building, fifteen per cent.; and

(ii) in the case of any non-residential building, twenty-five per cent.;

of the cost of site in which the building is determined under this section.'

(5)(a) The cost of construction of the building including cost of internal watersupply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area concerned. The Controller may, in appropriate cases, allow or disallow an amount not exceeding thirty per cent, of construction having regard to the nature of construction of the building.

(b) The Controller shall deduct from the cost of construction determined in the manner specified in Clause (a), depreciation calculated at the rates specified in Schedule II.

15. On a reading of the above section it is clear that it is obligatory on the part of the Rent Controller to take into consideration the market value of the site and the cost of construction of the building for fixing the fair rent. In view of the section we will have to consider whether the procedure adopted by the appellate Court for arriving at the fair rent excluding the cost of construction on the strength of the memo, filed by the learned advocate for the landlord is correct.

16. On behalf of the tenant it is contended that the appellate authority acted rightly in taking into consideration the memo, filed by the learned advocate for the landlord, who is duly authorised as per the terms of the vakalat to act on his behalf. Reliance is also placed upon the following cases by the learned advocate for the tenant.

17. In the case reported in Sourendra Nath Mitra and Ors. v. Tarubala Dasi , it has been held that an advocate of the High Court, when briefed on behalf of a party in a Subordinate Court, has got the implied authority of his client to settle the suit. In the case reported in Gavlndammal v. Martmuthu Maistry and Ors. : AIR1959Mad7 , a single Judge of this Court observed that, even in cases where there is no express authorisation to enter into a compromise, under the inherent authority impliedly given to the advocate he has power to enter into a compromise on behalf of his client. But, in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing, prudence dictates that, unless express power is given in the vakalat itself to enter into compromise, in accordance with the general practice obtaining, a special vakalat should be filed or the specific consent of the party to enter into the compromise should he obtained. It is also observed that, if the endorsement is made on the plaint, etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the advocate on his or her behalf. In the case reported in Smt. Jamilabi Abdul Kadar v. Shankarlal Gulab-chand and Ors. (1975) 2 S.C.W.R. 307, the Supreme Court observed that an advocate is entitled to enter into a compromise unless the party withheld the power of compromise' by a specific term in the vakalat. In the case reported in Employers in relation to Monoharbahal Colliery, Calcutta v. K.S. Mishra and Ors. : AIR1975SC1632 , the Supreme Court held that a compromise signed by the counsel is binding on the party. In the case reported in The Madras Co-operative Printing and Publishing Society Limited, Madras, represented by its Secretary v. O. Ramalingam and Ors. : (1976)1MLJ136 , a single Judge of this Court observed that the counsel appearing for a party is always having an implied authority to enter into a compromise on behalf of this party. The only limitation is that, if there was any written prohibition or limitation, he will have to act within that prohibition or limitation.

18. The fact that an advocate is entitled to sign on behalf of the party in the proceedings for compromise is reiterated in the above decision. But in this case there is no compromise petition as such. We find only a memo, filed by the learned advocate the recitals of which are as follows:

In the above matter if the Court considers that the cost of construction of the building arrived at is not in conformity of Section 4(5) of the Act, this respondent humbly submits that he will be satisfied if the fair rent is fixed on the site value.

19. Sub-section (5) of Section 4 of the Act relates to the adoption of P.W.D. rates in respect of calculation of the cost of the buildings. The memo, only states that if the Court considers that the cost of the building arrived at is not in conformity with Section 4(5) then fair rent may, be fixed on the site value. The appellate authority proceeded on the basis that the same is to the effect that the cost of construction need not be taken into account for the purpose of fixation of fair rent. But the memo. if construed in the proper perspective can only seen that if the appellate authority comes to the conclusion that the calculation of the cost of construction is not in accordance with Section 4(5) then only the Court can fix a fair rent on the basis of the cost of the land alone. There is no specific finding by the appellate authority that the calculation of the cost of construction of the building is not in accordance with Section 4(5) of the Act. In the absence of such finding the appellate authority is not entitled to act as per the memo. filed by the learned advocate for the landlord.

20. In this connection it will also have to be borne in mind that the memo, filed is not is the nature of a compromise petition signed by both the advocates and the parties. It is not even signed by the advocate for the tenant and in fact on the reverse sida of the memo there is an endorsement that the advocate for the appellant; viz., the tenant refused to take notice. Under the circumstances the principles laid down in the above cases regarding the authority of the advocate to sign compromise petitions cannot be applied to the facts of this case.

21. In view of the mandatory provisions in Section 4 of the above said Act, that in fixing the fair rent the Rent Controller shall take into consideration the cost of the building, the appellate authority is not justified in acting on the memo and excluding the cost of construction of the building and arriving at the fair rent taking into consideration the cost of the land alone. Considering the entire circumstances the grievance of the civil revision petitioner in this regard is justified.

22. Even in arriving at the cost of vacant site the learned appellate authority had not adopted the evidence let in in this case. So far as the evidence in this case is concerned we have the sale deed Exhibit A-l filed in R.C.O.P. No. 415 of 1974 in respect of a portion of a building just west of the petition-mentioned building measuring 127 sq. ft. This sale deed comprises of the building and the site and the value of the site will have to be arrived at after arriving at the cost of the building and deducting the same from the salle price mentioned in Exhibit A-1. If it is seen that the purchaser had paid a fancy price in respect of the transaction as contended by the tenant due allowance will have to be made for the same. The fixation of market value for the purpose of Urban Land Tax for the premises in question may also afford a criterion for the purpose of fixing the market value of the site. Exhibits P.-1,' B-2 and B-3 filed in C.M.A. No. 309 of 1977 are the orders of the Urban Land Tax Tribunal in respect of lands in Town Hall Road, Madurai. It is not known whether these orders relate to the site on which the petition-mentioned building stands. In any event the value fixed by the urban land tax authority at the time of the application for the fixation of fair rent will also be a factor in deciding the value of the site. The appellate authority without calculating the value of the site on the evidence available determined the fair rent at Rs. 100 per month on a rough and ready basis. On going through the orders of the appellate authority it is seen that the appellate authority had not taken into consideration the data available in respect of the value of the site in the proper perspective and that it had not arrived at the proper value of the site on which the building is situate.

23. If there is a first floor in the premises then the market value of the vacant site will have to be apportioned between the ground floor and the first floor. In the case reported in S. Attendrooloo Chetty's Charities by its President and Section Venkatarangam and Ors. v. Sadhana Aushadalaya by its Proprietor Naresh Chandra Ghose : (1968)2MLJ406 , it has been held that in the case of premises having storeys the value of the site will have to be apportioned between the storeys. In the case reported in R. Sivagnanam and Anr. v. Everest Boarding and Lodging by its Managing Partner, R. Manoharan : (1969)1MLJ101 , a single Judge of this Court observed that there is nothing in the Act which requires the assignment of the entire land cost to the ground floor alone. The appellate authority in this case observed that there is an upstairs for the premises but no deduction need be made from the cost of the land since the value of the building is not taken into consideration. The reasoning given by the appellate authority for not taking into consideration the cost of constmction of the building and for not taking into consideration the existence of the upstairs in arriving at the value of the site are not correct. T Fence the order of the appellate authority cannot be sustained and the same will have to be set aside.

24. In C.R.P. No. 2494 of 1978, the learned Rent Controller arrived at the market value of the site on which the premises is situate at Rs. 200 per square foot. This has been done taking into consideration Exhibit A-l, a registered sale deed, executed by the landlord himself with respect to a portion of the building just west of the petition-mentioned building and making allowance for the fancy price alleged to have been paid. Relying upon the Commissioner's report, Exhibit C-1, the learned Rent Controller fixed the value of the superstructure at Rs. 1813 and the age of the building at 50 years. Calculating the depreciation at one per cent. for 50 years and making allowance with regard to the amenities and adopting the statutory formula, the learned Rent Controller arrived at the cost of the superstructure at Rs. 1,093. Adding the cost of the site as Rs. 8,870 with the depreciated value of the superstructure the learned Rent Controller arrived at the total cost of Rs. 9,963 and fixed the fair rent at Rs. 100 per month for the petition-mentioned premises.

25. As against the decision of the Rent Controller fixing the fair rent at Rs. 100 per month for the petition-mentioned premises the tenant filed an appeal C.M.A. No. 309 of 1977. The learned appellate authority disposed of the above C.M.A. along with C.M.A. No. 308 of 1977 by means of a common order and reduced the fair rent to be fixed for the petition-mentioned premises to Rs. 50 per month. The appellate authority also without calculating the value of the site on the evidence available determined the fair rent at Rs. 50 per month on a rough and ready basis. On going through the order of the appellate authority it is seen that the appellate authority had not taken into consideration the data available in respect of the value of the site in the proper perspective and that it had not arrived at the proper value of the site on which the building is situate. Hence the order of the appelate authority cannot be sustained and the same will have to be set aside.

26. Hence the orders of the appellate authority in the above two appeals are set aside and both the matters are remitted back to the appellate authority for fresh disposal after taking into consideration:

1. The value afforded by the sale deed Exhibit A-1 and the value fixed by the Urban Land Tax Authorities for similar lands in the vicinity and any other evidence with reference to the value of the land that may be forthcoming after making due allowance for extraordinary circumstances that may be brought out; and

2. the value of the construction according to P.W.D. rates in respect of the premises in question.

The appellate authority is directed to arrive at the market value of the buildings on the principles mentioned above and arrive at the fair rent payable by the tenant in both the cases.

27. In the result both the civil revision petitions vis., C.R.P. Nos. 2493 and 2494 of 1978 are allowed and both the matters are remitted back to the appellate authority for fresh disposal in the light of the observations made above. There will be no order as to costs in both the civil revision petitions. C M.P. Nos. 3354 of 1979, 3355 of 1979 and 478 of 1981 are also allowed.


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