M/s.C.B.Muthusamy Chettiarand Companyrep., by is Prop v. A.Sundar Raj

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 7.6.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(NPD) No.885, 974 and 975 of 2003C.R.P.NPD.No.885/2003M/s.C.B.Muthusamy Chettiarand Companyrep., by is Prop.:C.M.RamarajNo.89 Govindappa Naicken St.,Chennai 600 079... Petitioner/Respondent/Tenantvs.A.Sundar Raj.. Respondent/Petitioner/Land LordCRP.NPD.Nos.974 and 975 of 2003:A.Sundar Raj.. Petitioner/Appellant/Petitioner Petitioner/Respondent/Petitionervs.M/s.C.B.Muthusamy Chettiarand Sons, rep.,by is Prop.:RamarajNo.187, Govindappa Naicken St.,Chennai 600 001... Respondent/Respondent/Respondent Respondent/Appellant/RespondentRevision Petition No.885/2003 filed against the order dated25.11.2002, passed in R.C.A.No.374/1997, on the file of VII Small CausesCourt, Chennai in modifying the orer dated 31.1.1997 passed in RCOPNo.1566/1994, on the file of the XVI Small Causes Court, Chennai, RevisionPetition No.974/2003 filed against the order dated 25.11.2002, passed inR.C.A.No.270/1997, on the file of VII Small Causes Court, Chennai againstthe order dated 31.1.1997 passed in RCOP No.1566/1994, on the file of theXVI Small Causes Court, Chennai and Revision Petition No.975/2003 filedagainst the order dated 25.11.2002, passed in R.C.A.No.374/1997, on thefile of VII Small Causes Court, Chennai against the order dated 31.1.1997passed in RCOP No.1566/1994, on the file of the XVI Small Causes Court,Chennai. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.S.Parthasarathi, Senior counsel, for M/s.A.Ramesh Kumar.For Respondent: Mr.A.Thyagarajan COMMON ORDER Civil Revision Petition No.885/2003 has been filed against the orderdated 25.11.2002, passed in R.C.A.No.374/1997, on the file of VII SmallCauses Court, Chennai in modifying the order dated 31.1.1997 passed inRCOP No.1566/1994, on the file of the XVI Small Causes Court, Chennai, 2.Civil Revision Petition No.974/2003 has been filed against theorder dated 25.11.2002, passed in R.C.A.No.270/1997, on the file of VIISmall Causes Court, Chennai againt the order dated 31.1.1997 passed inRCOP No.1566/1994, on the file of the XVI Small Causes Court, Chennai.3. Civil Revision Petition No.975/2003 has been filed against theorder dated 25.11.2002, passed in R.C.A.No.374/1997, on the file of VIISmall Causes Court, Chennai against the order dated 31.1.1997 passed inRCOP No.1566/1994, on the file of the XVI Small Causes Court, Chennai. 4.RCOP No.1566/1994 was filed by the landlord under Sec.4 of theTamil Nadu Buildings (Lease and Rent control) Act, 1960, hereinaftercalled 'the Act', for fixing the fair rent for the tenanted premises atRs.49,162/- per ;month. The premises let out is the entire ground floorexcept one shop abutting the street and entire first floor except one roomin premises No.89, Govindappa Naicken Street, Chennai.1. This RCOP wasresisted by the tenant by stating that at the most the fair rent could notbe more than Rs.7,500/- per month. The rent controller by order dated31.1.1997 fixed the fair rent Rs.35,065/- per month and aggrieved by thesame the tenant filed RCA No.374/1997. The landlord was also aggrieved bythe order of the rent controller and therefore he also filed RCANo.270/1997. The rent control appellate authority by a common order dated25.11.2002 disposed of both the appeals by fixing the fair rent atRs.33,859/- instead of Rs.35,065/- as fixed by the rent controller.Aggrieved by the order made in RCA No.374/1997 fixing the fair rent atRs.33,859/- instead of Rs.7,500/- per month, the tenant has filedCRP.NPD.No.885/2003. Similarly the landlord aggrieved by the order of theappellate authority in reducing the fair rent to Rs.33,859/-, filedCRP.NPD.No.974/2003. The landlord has also filed anotherCRP.NPD.No.975/2003 as the fair rent was not fixed at Rs.49,162/- permonth as demanded by him. https://hcservices.ecourts.gov.in/hcservices/

5.The case of the landlord in RCOP No.1566/1994 is that the rent paidby the tenant at R.4,750/- per month is very low and as the property issituated in a highly commercial area, the fair rent is to be fixed atRs.49,162/- per month. This was resisted by the tenant by contending thatthe property is 45 to 50 years old and the fair rent could not be fixed atmore than Rs.7,500/- per month. 6.The rent controller after going through the evidence let in by theparties found that the building is a class I category and it is 80 yearsold. The rent controller has also accepted that the construction area inthe ground floor is 3460 sq.ft., and 1,580 sq.ft., in the first floor withMadras flooring and 216 sq.ft., in the 1st floor with Mangalore tiles. Therent controller fixed the construction cost by taking note of the ratesfixed by PWD for the year 1994-1995. The rent controller fixed the valueof the land at Rs.22,89,600/- per ground on the basis of Ex.C.1 which isthe copy of the guidelines value. On that basis, the rent controllerfixed the fair rent at Rs.35,065/- per month.7.The appellate authority after re-appreciating the evidenceconcurred with the findings of the rent controller except with regard tothe value of the land at Rs.22,00,000/- based on Ex.A9 which is a saledeed executed in the year 1997 in respect of a property situated within ½km from the tenanted premises. Only on that basis the appellate authorityreduced the fair rent fixed by the rent controller from Rs.35,065/- toRs.33,859/- per month. Thus both the authorities have concurrently foundthat the fair rent would exceed more than Rs.30,000/- per month and theonly contention is the value fixed by the rent controller was the cost ofthe land. The rent controller fixed the value of the land atRs.22,89,600/- per ground on the basis of the guideline value, whereasthe appellate authority fixed the value of the land at Rs.22,00,000/- perground on the basis of Ex.A9. In all other aspects, the findings by boththe authorities below are concurrent and the same.8.Heard Mr.Parthasarathy, the learned Senior Counsel for the tenantand the learned counsel for the landlord. I have also gone through thedocuments filed and the judgments referred to by them in support of theirsubmissions. 9.The learned Senior counsel for the tenant submitted that theappellate authority committed an illegality in relying on Ex.A9 forarriving at the cost of the land at Rs.22,00,000/- as the parties to Ex.A9were not examined before the court below. Therefore the learned SeniorCounsel submitted that the value of the land should be calculated at Rs.10lakhs only as submitted by the tenant. The learned Senior Counsel reliedon the following decisions in support of his contentions: https://hcservices.ecourts.gov.in/hcservices/ 1)1996-2-L.W.637(Rahmath Fathima, T.H.S. v. T.K.Kader Mohideen)2)1996-2-L.W. 658(K.Ramanathan (died) and others v. B.K.Nalini Jayanthi)10.Per contra, the learned counsel for the landlord submitted thatthe parties need not be examined to prove the transaction and a certifiedcopy of the sale deed could not accepted by computing the market value andhe relied on the decision of this court reported in 2001(3)M.L.J. 396(Susainathan v. Vijayan) and the decision of the Supreme court in 2001(2)CTC 424 (Land Acquisition Officer and Mandal Revenue Officer v.V.Narasaiah).11.I have considered the rival submissions carefully with regard tofacts and citations.12.Insofar as the contention of the learned Senior Counsel for thetenant that the the reliance placed by the appellate authority on Ex.A9 iswrong is concerned, I find force in his submissions.13.In 1996(2) L.W.637(cited supra), a learned Single Judge of thiscourt held that a mere marking of a document with consent will not amountto proof of its contents and the sale deed executed between privateparties will not be a public document under Sec.74 of the Indian EvidenceAct. Unless the parties to the documents appear before the court andprove the contents of the documents, namely sale deed, the same will notamount to proof of its contents.14.This decision was approved by a Division Bench of this courtreported in 1996-2-L.W.658 (cited supra). The Division Bench in the abovedecision held that persons connected with the sale transactions orattesting witnesses should be examined in order to prove the transactionsas well as the factors referred to therein. The relevant portion reads asunder:"30.To determine the fair rent under Section 4 of theTamil Nadu Buildings (Lease and Rent Control) Act,evidence in each case is absolutely necessary. It willnot be possible for any Court to have an idea about therelevant factors, viz., location of the site,proximity, nearness to the developed areas, frontage,situation, etc., etc., in any case, merely on the basisof sale deeds pertaining to some lands in the locality.Even the particulars contained in a given case aresufficient to prove the nature and character of thelands, dealt with therein, there must be evidencebefore the court to the effect that the lands aresimilar in nature and the character of the lands dealtwith in such sale deeds, and those documents could betaken into consideration for fixing the fair rent forany residential or non-residential building. If a https://hcservices.ecourts.gov.in/hcservices/ party rests content with producing some sale deeds andif there is no material before Court, the sale deedscannot be taken into account by the court fordetermining the market value. Therefore, as held bythe Supreme court in 1993(3) S.C.C. 240 and 1991(4)S.C.C., 195 referred to supra, persons connected withthe sale transactions or the attesting witnesses shouldbe examined in order to prove the transactions as wellas the factors referred to therein. The burden ofproof is always on the landlord to prove in each casethe market value or the site in which the building isconstructed, the cost of construction of the buildingand the cost of provision of any one or more of theamenities specified in Schedule I as on the date ofapplication for fixation of fair rent. Under Section64 of the Evidence Act, documents must be proved byprimary evidence except in cases mentioned in Section65 of the Evidence Act.""31.Section 51-A of the land Acquisition Act has beenintroduced in the Land Acquisition Act. By virtue ofthe said section, the provisions of Section 65(f) ofthe Evidence Act become operative and registrationcopies of sale deeds or other documents may be acceptedas evidence of the transaction recorded in the documentin the proceedings under the Land Acquisition Act.Sec.51-A of the Land Acquisition Act does not dispensewith proof of the relevant factors which are absolutelynecessary to enable the court to determine the marketvalue of the land. Therefore, oral evidence isnecessary to speak about the transactions proved by thesale deeds. We have already extracted the observationsmade by the Supreme Court in 1993(3) S.C.C. 240,wherein the Supreme Court has expressly referred to theprovisions of Section 51-A of the Land Acquisition Act.Our above view is also fortified by many rulingsreferred to in the earlier part of this judgment.""32.For the foregoing discussions, we hold that theview expressed by S.S.Subramani, J., in C.R.P.Nos.4673and 4674 of 1987 dated 7.10.1994 since reported in1996-2-L.W.631 is correct. We are of the view that thelearned Judge has rightly set aside the orders of theauthorities below in that case and remitted the matterto Rent Controller to decide the case afresh since thefinding was not based on legal evidence."15.In 2001(2)CTC 424 (cited supra), the Supreme court held thatcertified copy of the sale deed could be considered without examiningpersons connected with the transactions mentioned in the sale deed in view https://hcservices.ecourts.gov.in/hcservices/ of Sec.51-A of the Land Acquisition Act.16.Following the above said Supreme Court judgment, a learned SingleJudge of this court in the decision reported in 2001(3)M.L.J.396(citedsupra) held that while fixing the fair rent under Sec.4 of the Act,certified copies of sale deed could be considered for computing marketvalue of the property without examining anybody concerned with thetransactions for proving the market value.17.As rightly pointed out by the learned Senior Counsel for thetenant the decision of the Hon'ble Supreme Court reported in 2001(2)CTC424(cited supra) was delivered by taking into consideration Sec.51A ofLand Acquisition Act and there is no such provision in the Tamil Nadu(Buildings Lease and Rent Control) Act, 1960. Therefore I am inclined toprefer the decision of the Division Bench of this court reported in 1996-2-L.W.658(cited supra) to the decision of the learned Single Judgereported in 2001(3)M.L.J.396(cited supra) which was passed withoutconsidering the decision rendered by the Division Bench of this court.Therefore I am of the opinion that unless the parties to the sale deed areexamined before the court the sale deed will not prove its contents eventhough it is marked by consent of both the parties.18.Admittedly in the present case, Ex.A9 sale deed was marked throughP.W.3, who is the son of the landlord. None of the parties to the saledeed, i.e., Ex.A9, was examined to prove its content. In suchcircumstances, the appellate authority ought not to have relied on Ex.A9to arrive at the cost of the land at R.22,00,000/-.19.The rent controller on the other hand relied on Ex.C1, theGovernment Guideline value for arriving at the cost of the land atRs.22,89,600/- per ground. The Government guideline value cannot formbasis for determination of market value as the guideline value is fixedfor determination of amounts payable by way of stamp duty. Therefore therent controller has also erred in relying on Ex.CI for arriving at thecost of the land at Rs.22,89,600/- per ground. A Full Bench of this courtin the decision reported in 2006(2)CTC 433 (Sakthi & Co. vs. ShreeDesigachary) narrated the methods of valuation of ascertaining the marketvalue and the relevant portion reads as under: "14.The methods of valuation for ascertaining themarket value, as suggested in the above decisions, areas follows:(1)Opinion of experts(2)The price paid within a reasonable time in bonafide transactions of purchase of the lands acquired orthe lands adjacent to the lands acquired and possessingsimilar advantages. Evidence of bona fide salesbetween willing prudent vendor and prudent vendee ofthe lands acquired or situated near about that land https://hcservices.ecourts.gov.in/hcservices/ possessing same or similar advantageous features wouldfurnish basis to determine market value.(3)A number of years purchase of the actual orimmediately prospective profits of the lands acquired.15.It is a settled law, as laid down in thejudgments referred to above, that in determining themarket value, the Court has to take into accounteither one or the other three methods to determinemarket value of the lands appropriate on the facts of agiven case. According to the Supreme Court, generally,the second method of valuation is accepted, as thebest. This method would furnish the evidence of bonafide sales between willing prudent vendor and prudentvendee of the lands acquired or situated near aboutthat land possessing same or similar advantageousfeatures, which would enable the court to determine themarket value correctly.16.In view of the above ratio decidendi fixed bythe Supreme court, the fixation of market value on thebasis of guideline value or valuation register,summoned from Sub-Registrar's Office and the Engineer,is illegal and unsustainable.17.The view expressed by Justice S.S.Subramani, inour view, is correct, as it is in consonance with theprinciples laid down by the Supreme Court. The otherview expressed by Justice Srinivasan is not correct, asthe methods suggested by the Supreme Court for fixingthe market value would not include the consideration ofguideline value and valuation register. So, in ouropinion, the said view is wrong.18.Therefore, our conclusions are as follows:(1)The guideline value, contained in the BasicValuation Register, maintained by the RevenueDepartment or the Municipality for the purpose ofcollecting stamp duty, has no statutory base or force.It cannot form a foundation to determine the marketvalue mentioned thereunder in instrument brought forregistration.(2)Evidence of bona fide sales between willing prudentvendor and prudent vendee of the lands acquired orsituated near about that land possessing same orsimilar advantageous features would furnish basis todetermine the market value. In this case, the https://hcservices.ecourts.gov.in/hcservices/ guideline value alone has been considered, which, inour view, is illegal.(3)The Rent Controller and the Rent Control appellateAuthority, in the present case, are not right inrelying upon the guideline value, maintained by theRevenue Department, for arriving at a fair rent, to befixed under Section 4 of the Tamil nadu Buildings(Lease & Rent Control) Act, 1960.19.In view of the above settled position of lawand conclusions, both the counsel for the parties wouldnow agree for setting aside the orders impugned and forremanding the matter for fixing the fair rent inrespect of the property during the relevant point oftime to follow the methods as mentioned above, afterallowing the parties to adduce evidence.20.Therefore, it would be appropriate to remandthe matter to the Rent Controller, after setting asidethe orders impugned, and to allow the parties to adduceevidence, to help the Rent Controller in arriving atthe market value, on the basis of the evidence of bonafide sales between the vendor and the vendee of thelands situated near about that land possessing same orsimilar advantageous features during the relevant pointof time which is, accordingly, ordered."20.Further in this case it is seen that the tenant who has sub-letthe property filed RCOP No.2053/2003 against the sub-tenant for fixationof fair rent at Rs.73,128/-, claimed in that RCOP that the value of thevery same site (which according to him is Rs.10,00,000/- per ground, inthe case on hand) is not less than Rs.1,20,00,000/- as on 30.10.2003. Thelandlord has filed C.M.P.No.8594/2006 in C.R.P.NPD.No.974/2003 praying toreceive the certified copy of RCOP No.2053/2003 as additional evidence inCRP.NPD.No.974/2003.21.To render substantial justice, court can always take note of thesubsequent developments and accordingly C.M.P.No.8594/2006 is allowed andthe certified copy of the petition in RCOP No.2053/2003 was taken on file.A mere perusal of this petition would prove that the tenant in this caseas landlord filed a petition under Sec.4 of the Act 18 of 1960 against hissub-tenant for fixing the fair rent at Rs.73,128/-. It was also clearlystated in that petition that the petition property is located in a veryimportant, precious, valuable and well-known area and in the heart andsoul of the city of Chennai and not even an inch of the same is availableanywhere in the locality. Thereafter it was claimed in the petition thatthe market value of the property is not less than Rs.1,20,00,000/- perground. https://hcservices.ecourts.gov.in/hcservices/

22.The averments made by the tenant in RCOP No.2053/2003 is also tobe considered on remand by the appellate authority along with otherevidence. The parties may also be permitted to adduce additional evidenceif any, by the appellate authority for arriving at the cost of the land onthe basis of the market value which is to be ascertained as per theabovesaid decision of the Full Bench of this Court reported in 2006(2)CTC433 and the decision of the Division Bench reported in 1996(2) L.W.658.The appellate authority is hereby directed to decide the question of thecost of the land alone in the above said terms and accordingly fix thefair rent of the property. The appellate authority shall try to disposeof the matter within 2 months from the date of receipt of this orderconsidering the fact that RCOP was filed in the year 1994.23.In the result, the Civil Revision Petitions are disposed of withthe above directions. No costs. C.M.P.No.9288/2003 is closed. sksSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The VII Judge, Court of Small Causes, Madras.2. The XVI Judge, Court of Small Causes, Madras.3. The Registrar, Court of Small Causes, Madras.+1 cc to Mr.A.Ramesh Kumar, Advocate Sr.No.32160.+1 cc to Mr.A.Thiyagarajan, Advocate Sr.No.32371.BV(CO)dcp/13.7.07C.R.Ps.(NPD)885,974 & 975/03.