Full Judgment Text
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CASE NO.:
Appeal (civil) 1565 of 2001
Special Leave Petition (crl.) 7960 of 2000
PETITIONER:
M/S.SHAW WALLACE & CO. LTD.
Vs.
RESPONDENT:
GOVINDAS PURUSHOTHAMDAS & ANR.
DATE OF JUDGMENT: 27/02/2001
BENCH:
S.V.Patil, D.P.Mohapatro
JUDGMENT:
D.P.Mohapatra,J.
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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
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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.
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(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
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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
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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
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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. Apa
rt
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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