M/S.Shaw
Wallace & Co. Ltd. Vs. Govindas Purushothamdas & Anr [2001] Insc 118 (27 February 2001)
S.V.Patil,
D.P.Mohapatro D.P.Mohapatra,J.
Special Leave Petition (crl.) 7960 of 2000
L.T.J
Leave
granted.
Whether
the revisional order dated 24th December, 1999 passed by the High Court of Madras in C.R.P.No.2317 of 1996 suffers
from any serious illegality which warrants interference by this Court is the
question for determination in this case. M/s.Shaw Wallace & Co. Ltd., the
tenant in occupation of the premises, has filed this appeal assailing the
aforementioned order of the High Court. The proceeding was initiated on the
application filed by the landlords Shri Govindas Purushothamdas and Shri Girdhari
Govindas, respondents herein, for fixation of fair rent of the premises under
Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
(hereinafter referred to as the Act). The controversy in the present proceeding
relates to inclusion of the area of 1752 sq.ft. (approximately) described as
platform and henpen as a part of the building. The Rent Controller and the
Appellate Authority excluded the said area and assessed the fair rent on the
basis of plinth area of 4850 Sq.ft. The fair rent was calculated as Rs.22403/-
per month. In the revision petition filed by the landlord under Section 25 of
the Act, the High Court set aside the order of the trial Court as confirmed by
the Appellate Authority determined Rs.28,000/- in place of Rs.22,403/- per
month as fair rent. The said order is under challenge in this appeal. The main
thrust of the submissions made by Dr.A.M.Singhvi, learned senior counsel
appearing for the appellant is that the High Court erred in including the henpen
and platform within the plinth area of the building. According to the learned
counsel, those structures cannot be said to be a part of the building and
cannot be utilised as such. He further contended that the High Court should not
have interfered with the concurrent findings of fact recorded by the trial
Court and the Appellate Authority that the area covered by the henpen and
platform is not a part of the building.
Per
contra, Shri T.L.V.Iyer, learned senior counsel appearing for the respondents,
contended that in this case the High Court was justified in interfering with
the order of the trial Court which was confirmed by the Appellate Court, since
the courts below had overlooked the admission of the landlord in the pleadings
that the plinth area of the structure in occupation of the tenant is 6602 Sq.ft.
(not 4850 Sq.ft.). Before proceeding to consider the merits of the contentions
raised by learned counsel for the parties, it will be convenient to notice some
provisions of the Act which are relevant for the case. Section 2(2) of the Act,
which defines building reads as follows:
2(2)
building means any building or hut or part of a building or hut, let or to be
let separately for residential or non-residential purposes and includes-
(a) the
garden, grounds and out-houses, if any, appurtenant to such building, hut or
part of such building or hut and let or to be let along with such building or
hut,
(b) any
furniture supplied by the landlord for use in such building or part of a
building or hut, but does not include a room in a hotel or boarding house;.
Section
4, which deals with the fixation of fair rent reads: 4. Fixation of fair rent.-
(1)
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 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 total 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 anyone 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 constructed, and the cost of construction of the
building as determined under this section.
(5)(a)
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. 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. [Emphasis supplied] The other statutory provisions, which is
relevant, is Section 25(1) which provides for a revision to the High Court. The
provision is quoted hereunder:
25.
Revision.- (1) The High Court may, on the application of any person aggrieved
by an order of the Appellate Authority, call for and examine the record of the
Appellate Authority, to satisfy itself as to the regularity of such proceeding
or the correctness, legality or propriety of any decision or order passed
therein and if, in any case, it appears to the High Court that any such
decision or order should be modified, annulled, reversed or remitted for
reconsideration, it may pass orders accordingly.ú [Emphasis supplied] Schedule
I in the Act enumerates the amenities within the meaning of Section 4 of the
Act. From a plain reading of the statutory provisions quoted above, it is clear
that the expression building includes any building with the garden, grounds and
out-houses appurtenant to such building, or part of such building let or to be
let along with such building. In view of the expansive definition of the term,
any structure which is part of the premises let out or to be let out comes
within the purview of building. This position becomes further clear on reading
sub-section (4) of Section 4 wherein it is provided that 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 anyone or more of the amenities
specified in Schedule I as on the date of application for fixation of fair
rent. In the first proviso to the sub- section (4) it is laid down 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 the
vacant land, if any, appurtenant to such building, the excess portion of the
vacant land, being treated as amenity.
Reading
the two provisions together, it is clear to us that for the purpose of
assessment of fair rent not only the area on which the building is constructed,
but also the land appurtenant to it subject to the limit prescribed in the
Statute and other structure appurtenant to the main building and also the
amenities described in Schedule I of the Act are all to be taken into account.
Therefore, the contention raised by Dr.Singhvi that the platform and the henpen
are not to be included in calculating the area for the purpose of assessment of
fair rent, since it cannot be used as a building, cannot be accepted having
regard to the facts found in the case. The High Court, in our considered view,
did not commit any illegality in including the said structures within the
plinth area for the purpose of fixation of fair rent.
Coming
to the question of revisional jurisdiction of the High Court under Section 25
of the Act, the contention raised by Dr.Singhvi is that the limited
jurisdiction vested in the said Sectin does not permit the High Court to
disturb concurrent findings of fact recorded by the courts below.
From
the judgment/order of the High Court it is manifest that the High Court felt
inclined to interfere with the orders passed by the Courts below mainly for the
reason that the Courts below had ignored the specific averment made by the
landlords in their pleadings that the total plinth area is 6602 Sq.ft. which
was admitted by the tenant to be true in para 12 of its counter affidavit. The
question, therefore, is the High Court not have the power to disturb the
findings of fact concurrently recorded by the Courts below in such
circumstance? On a plain reading of Section 25 of the Act, it is clear that the
revisional jurisdiction vested in the High Court under that Section is wider
than Section 115 of the Code of Civil Procedure. The High Court is entitled to
satisfy itself as to the regularity of the proceeding of the correctness,
legality or propriety of any decision or order passed therein and if, on
examination, it appears to the High Court that any such decision or order
should be modified, annulled, reversed or remitted for reconsideration, it may
pass such orders accordingly.
In the
case of M.S.Zahed vs. K.Raghavan reported in [1999] 1 SCC 439, this Court,
interpreting Section 50 of the Karnataka Rent Control Act, 1961 which is pari materia
to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
held that it is within the scope of revisional jurisdiction of the High Court
to interfere with the findings of fact, illegally or incorrectly arrived at.
In the
present case, the trial Court and the Appellate Court had not only ignored the
admission of the landlord in the pleadings but also misread and misconstrued
the provisions of the Act. In the circumstances, the High Court cannot be
faulted for having interfered with the judgments/orders of the Courts below and
modifying the fair rent as assessed therein. The contention raised by Dr.Singhvi
questioning the jurisdiction of the High Court has also to be negatived.
In the
result, the appeal being devoid of merit, is dismissed with costs. Hearing fee
is assessed at Rs.10,000/-.
On the
prayer made by Dr.A.M.Singhvi, learned senior counsel, the appellant is granted
one month time to pay the arrear rent due in compliance of the order passed by
the High Court.
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURSIDICTION CIVIL
APPEAL NO. 1874 OF 1992 District Magistrate, Allahabad & Anr. Appellants Versus Harminder Pal Singh & Anr.
Respondents
J U D G M E N T
RAJENDRA BABU, J. :
A
lease was granted for a piece of Nazul land bearing plot No. 8, Nashibpur, Baskhtiara,
Allahabad to one Begum Mehdi Husain for a period of 30 years from August 21,
1940 with the provision of two further renewals of 30 years. In 1983 the Vice-
Chairman, Allahabad Development Authority (ADA) sanctioned a plan subject to
countersigning by the District Magistrate. The lease was renewed on December 4, 1987 in the names of Smt. Jagjit Kaur Gulati,
Shri Harminder Pal Singh, Shri Jitendra Singh, Smt. Bhulari Devi, Shri Rajendra
Singh, Shri Pramod Kumar Agarwal and Nazir Faiyaz Khan. By a letter dated
January 22, 1987 all the District Magistrates in Uttar Pradesh were informed
regarding construction of multi storey buildings on Nazul Land to the effect
that the Government has no objection for building up multi storey building in
the Nazul land as per the procedure prescribed by the Government in the order
dated October 16, 1986 provided the balance lease period is more than 15 years
and that as per the building construction laws, the construction of the
proposed building is permissible. It was also made clear therein that in case
of sale of such flats, the real rent should be realised after proportionately
distributing the rent between the flat owners. Based on this Government order
it is stated that the plan had been sanctioned by the Vice-Chairman, ADA. When the District Magistrate did not countersign
the said sanctioned plan, a writ petition was filed before the High Court. The
High Court directed the Vice-Chairman, ADA
to release the sanctioned plan dated May 20, 1989 in favour of the respondents.
This
petition was contested both by the State and by the Vice-Chairman, ADA. The stand of the appellants is that the respondents
filed an application for a plan on March 10, 1989 for the construction of the multi
storey residential complex which was sanctioned by the Vice-Chairman, ADA as communicated to them on May 24, 1989. It was stated that the plan could
be released after countersignature was obtained from the District Magistrate.
The District Magistrate did not countersign the sanctioned plan and when the
matter was pending before him, another order dated November 10, 1989 had been
issued which provided that before allowing residential construction of the
group housing the premium and rent should be realised on commercial rates from
the lessee and thus the respondents had to pay certain sum towards premium and
annual rent at certain rate. The High Court felt that the only objection raised
on behalf of the District Magistrate is the payment of the premium and the rent
as provided in the order dated November 10, 1989.
The
High Court examined the provisions of the lease deed and is of the opinion that
the sanction of both the Collector and the Board was not essential and it was
sufficient if the Board gave its approval and, in the present case, the
Vice-Chairman, ADA had given such sanction. After analysing
the relevant enactments, it took the view that the powers of the Board stood
transferred to different authorities and ultimately vested in the Development
Authority and, therefore, the Vice-Chairman, ADA could grant sanction to the plan. The High Court, therefore, rejected
the contention raised on behalf of the appellants thereby allowing the writ
petition. Hence this appeal by special leave.
The
lease deed has been made available to us which has been executed on behalf of
the Governor of the United Provinces on the one part and Begum Mehdi Husain on
the other part to be effective for a period of 30 years from August 21, 1940
which has been renewed from time to time on certain terms of agreed rent. The
lease deed also provides as follows :- AND ALSO will within twenty four
calendar months next after the date of these presents at his expense and to the
satisfaction of the Collector for the time being of Board of Allahabad in a
good substantial and workmanlike manner erect and complete on such parts of the
said premises as are marked out on the plan hereto annexed a dwelling-house and
out-buildings according to a plan and elevation to be approved by such
Collector which dwelling-house Board and out-buildings shall be of the value of
Rs. 5,000/- at least AND ALSO that no part of the external elevation or plan of
such dwelling-house and out-buildings shall at any time be altered or varied
from the original elevation or plan thereof without the written consent of such
Collector and no other building shall be erected on Board the said premises
without the like consent.
This
lease deed had been granted for and on behalf of the Government is clear in
terms of Article 299 of the Constitution and it is also clear by the
communication No. 278/9- Nazul-87/485N/86 the Government had instructed all the
District Magistrates as to the manner of construction of multi storey buildings
also to be made on Nazul land, to which we have adverted to. By letter dated January 22, 1987 when that procedure had been
prescribed and the lease itself is under the Nazul Rules framed pursuant to the
executive orders of the Government, we fail to understand as to how any other
procedure is required in matters of this nature. The argument that the
permission of the Collector or the Board is required in spite of orders made by
the Government dated January
22, 1987 is untenable.
Under the terms of the orders of the Government all the District Magistrates
are bound to act and permit the construction on such land. Such buildings can
be constructed under the Building Construction Laws. Under the Uttar Pradesh
Urban Planning and Development Act, 1973, the development can take place in
terms of Section 14 of the Urban Planning and Development Act, 1973 and
whenever any development takes place, sanction of the Development Authority is
required. Thus the construction had to be made only under the Building
Construction Laws as stated in the Government order and there is no other
requirement to be complied with. Therefore, it is unnecessary to engage our
attention to the argument advanced on behalf of the appellants that the
sanction of the Collector as well as the Board is required in a matter of this
nature. Apart from the ambiguity arising on account of non-striking off of
irrelevant portions in the lease deed, the Government order makes it clear the
manner of construction of multi storey buildings on Nazul Land, the same can be complied with. If that is so, the District
Magistrates or the Collectors permission though required, it will have to be in
terms of the Government order dated January 22, 1987. Thus the later order issued on
November 10, 1989 had no application to the case since sanction had been given
to the plan by the Vice-Chairman, ADA
on May 24, 1989. Thus the view taken by the High
Court is unexceptionable and calls for no interference.
Therefore,
we dismiss this appeal.
..J.
[ S.
RAJENDRA BABU ] ..J.
[
SHIVARAJ V. PATIL ] NEW
DELHI, MARCH 2, 2001.
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