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A.V.GOPALAKRISHNA versus O.L.V.R.PARAMANANDA

High Court of Madras

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A.V.Gopalakrishna v. O.L.V.R.Paramananda - C.R.P.(NPD)(MD)No.386 of 2004 [2007] RD-TN 1417 (12 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12/04/2007

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

C.R.P.(NPD)(MD)No.386 of 2004

A.V.Gopalakrishnan ... Petitioner

Vs

O.L.V.R.Paramanandam ... Respondent

Prayer

This Civil Revision Petition has been filed under Section 25 of Tamil Nadu Buildings Lease and Rent Control Act, 1960 against the order dated 30.03.2004 passed in R.C.A No.34 of 2002 by the learned Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai. For Petitioner : Mr.T.R.Jeyapalam

For Respondent : Mr.P.U.Surendran

:ORDER



This Civil Revision Petition has been filed by the petitioner, challenging the order dated 30.03.2004, made in R.C.A.No.34 of 2002, on the file of the learned Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai, confirming the order dated 16.07.2002, made in R.C.O.P.No.369 of 1994, on the file of the learned Additional District Munsif cum Rent Controller, Madurai Town.

2.Brief facts of the case are as follows:- The petitioner herein is the tenant and the respondent herein is the landlord of the demised building. The contractual rent for the said building was Rs.600/- p.m. The respondent/landlord has filed RCOP No.369 of 1994, before the learned Additional District Munsif cum Rent Controller, Madurai Town, under Section 4 of the Tamil Nadu Buildings Lease and Rent Control Act, 1960, for fixation of fair rent. The petitioner/tenant has filed a detailed counter and contested the matter. On the side of the respondent/landlord, four witnesses were examined and one document was marked as Ex.P.1. On the side of the petitioner/tenant, he was examined as R.W.1. Two documents were marked as witness documents. A Commissioner was appointed by the learned Additional District Munsif cum Rent Controller and his report was marked as Ex.C.1. A sketch prepared by an Engineer and his report were marked as Exs.C.2 and C.3 respectively. After considering the materials available on record, the learned Additional District Munsif cum Rent Controller by an order dated 16.07.2002, determined the rent at Rs.2,592/- as fair rent and directed the petitioner/tenant to pay the same. Challenging the said order, the petitioner/tenant has filed RCA No.34 of 2002, before the learned Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai. After hearing both sides and considering the material available on record, the learned Principal Subordinate Judge cum Rent Control Appellate Authority by an order dated 30.03.2004, modified the order of the learned District Munsif cum Rent Controller and fixed the fair rent at Rs.2,527/- p.m. Challenging the said order, the petitioner/tenant has filed the present civil revision petition before this Court.

3. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

4. The learned counsel for the petitioner/tenant would submit that the Courts below have fixed the fair rent only on the basis of the guideline value of the property maintained at the Registrar's Office. He would further contend that as per the Judgment of a Full Bench of this Court reported in 2006 (2) CTC 433 (Sakthi & Co Vs. Shree Desigachary), determination of market value of the property for the purpose of fixing the fair rent based on guideline value is illegal.

5. Per contra, the learned counsel for the respondent/landlord would contend that it is of course correct, the fair rent cannot be fixed solely on the basis of the guideline value of the property as maintained at the Registrar's Office but, his contention would be that in the counter filed before the lower Court, the petitioner/tenant has admitted that the market value of the property would be somewhere between Rs.300/- to Rs.400/- per sq.ft. On this admission of the petitioner/tenant he would make a submission that atleast on the basis of the above said admission, a fair rent may be fixed appropriately. He would further submit that apart from the guideline value, there are materials available on record by way of oral evidence, through the report of the Commissioner and the report of the qualified Engineer to determine the market value of the property to fix the fair rent. He would conclude his argument stating that the order of the lower Appellate Court requires to be sustained.

6. I have considered the rival contentions made by the learned counsel for the petitioner as well as the learned counsel for the respondent and also perused the materials available on record. At the outset, I have to state that the Judgment of a Full Bench of this Court reported in 2006 (2) CTC 433 (cited supra), wherein, in paragraph 18 this Court has held as follows:- "Therefore the conclusions are as follows: (1) The guideline value, contained in the Basic Valuation Register, maintained by the Revenue Department or the Municipality for the purpose of collecting stamp duty, has no statutory base or force. It cannot form a foundation to determine the market value mentioned thereunder in instrument brought for registration.

(2) Evidence of bona fide sales between willing prudent vendor and prudent vendee of the lands acquired or situated near about that land possessing same or similar advantageous features would furnish basis to determine the market value. In this case, the guideline value alone has been considered, which, in our view, is illegal.

(3) The Rent Controller and the Rent Control Appellate Authority, in the present case, are not right in relying upon the guideline value, maintained by the Revenue Department, for arriving at a fair rent, to be fixed under Section 4 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960."

7. As per the judgement of the Full Bench it is very clear that the guideline value cannot form the foundation to determine the market value mentioned thereunder in instrument brought for registration. In the case on hand, a thorough perusal of the orders of both Courts below would clearly establish that the Courts below have determined the market value keeping the guideline value as a foundation for fixing the fair rent, which according to the Full Bench is not a correct approach. On this score alone, the orders of the both Courts below require to be set aside as unsustainable under law.

8. The next contention of the learned counsel for the respondent/landlord is that there is an admission in the counter itself that the market value of the property would be between Rs.300/- to Rs.400/-. Ofcourse, there is a force in the argument of the learned counsel for the respondent, but the difference between Rs.300/- to Rs.400/- is very vast. The learned counsel could not say whether the Court should take Rs.300/- as the market value or more than that. Whatever it may be, it is the duty of the respondent/landlord to prove the exact market value of the property by means of sufficient evidence either oral or documentary as indicated by the full bench in the jugement cited supra.

9. The learned counsel for the respondent has further contended that there is enough oral evidence on the side of the landlord to prove the actual market value of the property and there is also the report of the Engineer wherein, he has fixed the market value. I have perused the report of the Engineer wherein he has stated that the value of the building is Rs.61,468/- and the value of the site is Rs.2,07,600/-. To make his opinion of the expert admissible in evidence, first of all he should brought under the definition of an expert as required under Section 45 of the Indian Evidence Act. Being an Engineer, of course, he is an expert to value the cost of building and to offer his opinion, which is admissible under Section 45 of the Indian Evidence Act. But, he cannot be called as an expert to offer his opinion in respect of the market value of the site and therefore, his opinion contained in the report cannot be considered for any purpose as an evidence and it is not admissible under Section 45 of the Evidence Act.

10. In these circumstances, this Court cannot rely on the report of the Engineer to assess the market value of the site. With reference to the oral evidence adduced by the parties, I have to necessarily hold that the Courts below have not at all considered their evidence in their proper perspectives.

11. For all these reasons, I am of the view that the orders of both Courts below are liable to be set aside. But mere dismissal is no answer for the claim made by the respondent/ landlord. In all fairness, the respondent/ landlord should be afforded an opportunity to adduce further evidence if any to prove the market value of the property. For the said exercise, it is absolutely necessary to set aside the orders of both the Courts below and to remand the matter back to the learned Additional District Munsif cum Rent Controller, Madurai Town, for fresh disposal according to law after affording sufficient opportunity to both the parties to adduce fresh evidence if any.

12. In the result, the civil revision petition is allowed and the order of the learned Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai dated 30.03.2004 in R.C.A.No.34 of 2002 and also the order of the learned Additional District Munsif cum Rent Controller, Madurai Town, dated 16.07.2002, in RCOP.No.369 of 1994, are set aside and the matter is remanded back to the file of the learned Additional District Munsif cum Rent Controller, Madurai Town for fresh disposal in accordance with law after affording sufficient opportunity to both the parties concerned to adduce further evidence, if any. No costs.

13. Considering the fact that the RCOP has been pending from the year 1994 onwards, the learned Additional District Munsif cum Rent Controller, Madurai Town, is directed to dispose of the RCOP.No.369 of 1994, before the end of June 2007. An undertaking given by the learned counsel appearing for both the parties before this Court that the parties shall cooperate for early disposal of the RCOP within the time frame as indicated above is also recorded. jbm

To

1. The Additional District Munsif cum

Rent Controller, Madurai Town.

2. The Principal District Munsif cum

Rent Control Appellate Authority,

Madurai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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