Madras High Court
M.Tikamchand Kochar vs Rajni C.Maher(Huf) on 18 January, 2021
CRP.NPD.No.3209 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3209 of 2015
M.Tikamchand Kochar ..Petitioner
Vs.
Rajni C.Maher(HUF) ..Respondent
PRAYER:
The Civil Revision Petition is filed under Section 25 of the Tamil
Nadu Buildings / Lease and Rent Control Act, 1960 praying to set aside
the judgment and decree in RCA.No.705 of 2011 dated 13.11.2014 on
the file of the Hon'ble VII Judge, Small Causes Court, Chennai
confirming the fair and decreetal order in RCOP.No.2024 of 2009 dated
12.04.2011 on the file of the XII Judge, Small Causes Court, Chennai
by allowing the Civil Revision Petition.
For Petitioner : Mr.Sandeep Samir Shah
for M/s.Shah and Shah
For Respondent : Mr.K.P.Ashok
1/12
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
ORDER
This Civil Revision Petition is directed as against the
judgment and decree passed in RCA.No.705 of 2011 dated 13.11.2014
on the file of the VII Judge, Small Causes Court, Chennai confirming
the fair and decreetal order in RCOP.No.2024 of 2009 dated
12.04.2011 on the file of the XII Judge, Small Causes Court, Chennai
thereby partly allowed the petition filed for fair rent and fixed at
Rs.11,600/- as monthly rent payable by the petitioner herein.
2. Mr.Sandeep Samir Shah, the learned counsel for the
petitioner would submit that the petitioner is a tenant. The respondent
filed petition for fixing fair rent for the petition premises. He further
submitted that the petitioner's engineer filed report that the plinth
area of the building only at 1199.87 square feet, whereas the trial
court had taken into account as per the construction agreement, that
too, without producing construction agreement for the petition
premises before the trial court. He further submitted that the petition
premises is a flat and amenities are common for all the flat owners
and as such allowances fixed at 15% insofar as basic amenities are
concerned are higher side. Insofar as Schedule 1 amenities are
concerned, the respondent failed to prove that the doors are made up
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
with teakwood. Therefore, the amenities under Schedule 1 have to be
worked out for each of the amenities. Therefore, no teakwood is used
and the building has to be described as type 3 building and
depreciation have to be worked out at 2%. In support of his
contention, the learned counsel for the petitioner relied upon the
judgments in the case of A.Emberumanar and another vs.
K.Raghava reported in (1987) TLNJ 307 and in the case of
Bombay Tyres International Ltd. vs Express Newspapers
Private Ltd reported in (1987) 2 MLJ 191.
3. Per contra, Mr.K.P.Ashok, the learned counsel for the
respondent would submit that the petition premises is situated at
Barnaby Road, Kilpauk, Chennai and the value of the land is more than
Rs.3 crores per ground. The plinth area occupied by the petitioner is
1375 square feet. Originally this premises was rented out to the
petitioner for monthly rent at the rate of Rs.5000/-. Now the trial court
fixed only at Rs.11,600/- and as such the respondent challenged the
same for enhancement of fair rent. Unfortunately the said petition
was also dismissed and confirmed the order passed by the learned
Rent Controller. He further submitted that even as per the report filed
by the petitioner's engineer, classification of the building is type 1
clause A, and calculated depreciation at 1%. Now the petitioner cannot
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
take different stand beyond the report filed by his engineer. In fact,
the basic amenities are concerned, both the engineers have admitted
and the court below fixed 15% towards basic amenities considering
the existence of three basic amenities which were duly admitted by
both the engineers. Therefore, the judgments cited by the learned
counsel for the petitioner are not applicable to the case on hand.
4. Heard Mr.Sandeep Samir Shah, the learned counsel for the
petitioner and Mr.K.P.Ashok, the learned counsel for the respondent.
5. The petitioner is tenant under the respondent in respect of
the petition premises for monthly rent of Rs.5,000/-. The plinth area
occupied by the petitioner is 1375 square feet and it is undivided share
of 480 square feet. Admittedly all the three basic amenities are
available for petition premises and the classification of the building is
type I. The respondent filed RCOP in the year 2009. The petition
premises is situated at Flat No.112, First Floor, Door No.1, Barnaby
Road, Kilpauk, Chennai-10. Admittedly it is a posh area and as per the
sale deed of the property, the land value at Rs.94,80,000/- per
ground.
6. Now the point for consideration is that whether the rates of
depreciation fixed by the court below is correct or not. When the
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
building built in lime mortar and in which teak has been used through
out the rate of depreciation at 1%, for the buildings built partly of
brick in lime mortar and partly of brick in mud and in which teak has
been used, the rate of depreciation would be 1.5 %.
7. On perusal of the documents would reveal that the petition
premises is type 1 clause A and calculated the depreciation at 1% by
both engineers of the petitioner as well as the respondent. Further,
there is no evidence to show that the respondent did not use teakwood
for construction. Therefore the court below classified the building as
type 1 class A 1 and calculated the building depreciation at 1%. In
respect of the schedule 1 amenities is concerned, the petitioner's
engineer had given report that overhead tank, electric motor, mosaic
flooring in staircase, glazed walling in toilet / bath areas, granite pial in
kitchen and exterior facade of elevators, marble flooring in room
areas, roof bandling and bay windows as architectural elevation,
appurtenant land, sun breakers, all round compound wall, elevators,
landscaping and gardening area are available in the petition premises
and had given 12%. Though engineer of the petitioner had taken 2%
for schedule 1 amenities, the amenities provided by the respondent
have been taken into account as 7% towards schedule 1 amenities
which is quite reasonable.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
8. In this regard, the learned counsel for the petitioner relied
upon the judgment in the case of A.Emberumanar and another vs.
K.Raghava reported in (1987) TLNJ 307, wherein this court held
that when the party failed to produce the document, the learned Rent
Controller ought to have taken adverse interference for non production
of document. In the case on hand, the respondent proved that in
respect of amenities provided for the petition premises and court
below fixed fair rent of Rs.11,600/-. Therefore, the above judgment is
not applicable to the case on hand.
9. He also relied upon the judgment in the case of Bombay
Tyres International Ltd. vs Express Newspapers Private Ltd
reported in (1987) 2 MLJ 191, wherein it is held as follows:
3. In C.R.P. No. 178 of 1984, the landlord has
challenged the reduction of its claim inasmuch as the rent
originally asked by it has not been fixed as fair rent.
Substantially the two points on which parties seem to be
at issue relate to the cost as estimated by the Appellate
Authority in respect of basic amenities and Schedule I
amenities. In respect of basic amenities, the Rent
Controller had estimated the cost to be 10 per cent of the
cost of construction. This was enhanced to 15 per cent by
the Appellate Authority. In respect of Schedule I
amenities, the Rent Controller had arrived at an ad hoc
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
figure of Rs. 10,000 which was, however, enhanced by
the Appellate Authority at Rs. 46,788 being 5 per cent of
the cost of construction. Now, so far as the basic
amenities are concerned, which are in the nature of
facilities for water supply, electrical fittings and the
drainage system, the Rent Controller has merely
observed that he was inclined to award 10 per cent of the
cost of construction as the value of the amenities. Now
the Rent Controller himself has come to the conclusion
that the cost of construction at the rate of Rs. 32 per sq.
ft. would come to Rs. 27,750. In so far as the basic
amenities are concerned the relevant provision of law is
in Section 4(5)(a) of the Tamil Nadu Buildings (Lease and
Rent Control) Act, which provides that the cost of
construction of the building including cost of internal
water-supply, 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. A further
discretion is, however given to the Rent Controller in
appropriate cases to allow or disallow an amount not
exceeding 30 per cent of the cost of construction having
regard to the nature of the cost of construction. I am
informed that, so far as the Public Works Department
rates are concerned, the maximum rate with regard to
the basic amenities referred to in Section 4(5)(a) of the
Act is 22-1/2 per cent, allocated as 7-1/2 per cent in the
case of water supply, 7-1/2 per cent in the case of
sanitary fittings and 7-1/2 per cent for electrical
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
installations. Now it is obvious that the cost of
construction which is to be determined is with reference
to the time of pendency of the proceedings, because
under Clause (b) of sub-Section 5(a) of Section 4 of the
Act, a depreciation has to be calculated. The best method
would have been to find out what exactly is the cost
which has to be incurred for purpose of making available
the basic amenities. Since the statute itself indicates that
the guideline is to be the rate adopted for the purpose of
estimation made by the Public Works Department, those
rates will undoubtedly be taken into account. There has to
be some rational basis with regard to the percentage to
be adopted even within the range permissible by the
statute before a decision is arrived at with regard to the
cost in respect of the provision of the amenities. It must
be remembered that even the law contemplates fair rent
to be fixed as a return on the investment made by the
landlord. In a case of fixation of fair rent, judicial notice
must be taken of the fact that cost of construction and
cost of materials which have to be used for the
construction of a building including the fittings for water
supply, sanitary fittings as well as for making electrical
installations have always been escalating and are
considerably high. Therefore, having regard to the
prevailing high level of cost of materials used for
construction of a house, there has to be a realistic
approach in the matter of estimating the cost of
construction and the cost of making amenities available.
Therefore, within the range prescribed by the statute the
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
percentage has to be fixed on a realistic basis. This can
only be done after ascertaining the normal cost of
material necessary for providing the basic amenities.
Assuming for the sake of argument that the cost of
construction of a building is Rs. 1,00,000 without of
course including the water supply facilities, drainage
facilities and electrical fittings, I think judicial notice can
be taken of the fact that within only 10 per cent of this
cost, it is hardly possible to meet the cost of these
amenities. Therefore, it cannot be said that the increase
of the percentage from 10 per cent to 15 per cent as
awarded by the Appellate Authority is so excessive which
should be interfered with in these revision petitions.
10. As discussed above, this judgment is also not applicable to
the case on hand since the engineer of the petitioner herein contended
that depreciation has to be calculated at 1%. Therefore, fixation of fair
rent by the court below is correct and does not suffer from any
infirmity or irregularity. That apart, the respondent filed RCOP for
fixation of fair rent in the year 2009. The premises is also located in
the posh area and till today the petitioner is paying only admitted rent
and therefore, nothing warrants interference from this Court and this
civil revision is liable to be dismissed.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
11. Accordingly, this civil revision petition is dismissed. No
order as to costs.
18.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
To
1.The VII Judge, Small Causes Court,
Chennai
2.The XII Judge, Small Causes Court,
Chennai
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3209 of 2015
G.K.ILANTHIRAIYAN,J.
lok
CRP.NPD.No.3209 of 2015
18.01.2021
https://www.mhc.tn.gov.in/judis/
