Subramania Udayar Sons Partnership Firm, Vs. Sathyanarayanan and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. sections 5a & 4; [p. sathasivam, m.e.n. patrudu & s. manikumar, jj] land acquisition (tamil nadu) rules, rule 4 time limit for filing objections held, time limit prescribed under section 5-a for filing objections cannot be further enlarged by form b notice issued under rule 4. authorities were directed to modify form b. sections 5a (2); [ hearing of objectors - held, it is mandatory and making a further enquiry by the collector is discretionary. if the objectors have not filed any objection with8in 30 days but come forward with oral objection, even then, the collector must hear. the hearing is mandatoryorderr. banumathi, j.1. challenging the order of rent control appellate authority/principal sub judge, salem in r.c.a. nos. 67 and 69/1986, fixing the fair rent at rs.2,340/-, tenant has filed these revisions.2. factual background which led to these revisions are as follows:2.1. the demised premises is a non residential building bearing new d. no. 6, 6-a, i ward, arisi palayam, leigh bazar, salem. the premises originally belonged to late madura das, yamuna das sait and it was leased out to the father of the revision petitioners, who was doing business in the name and style of subramaniam udayar and sons. the contractual rate of rent is rs.300 p.m. the respondents/landlords purchased the premises by registered sale deeds exs.a-1 and a-2 dated 16.06.1980. stating that the present market value of the entire building would be more than rs.3,00,000/-, landlords filed petition under section 4 of tamil nadu buildings [lease and rent control] act, 1960, [for short, 'the act'] for fixation of fair rent at rs.2,500/- p.m. 2.2. the tenants contested the petition contending that the entire southern half measuring 27' x 100' was a vacant site and after taking it on lease, their father put up tiled roof in the portion measuring 1,155 sq.ft. tenants are renovating the thatched portion every year and they have also done electrification. the tenants further contended that the petition does not contain material particulars like extent of property, plinth area of building and hence, prayed for dismissal of petition for fixation of fair rent. 2.3. the rent controller fixed the fair rent at rs.1,593/- p.m. by order dated 29.08.1986. aggrieved by the same, tenants preferred rca no. 69/1986 and landlords preferred rca no. 67/1986. by the common order, the appellate authority had fixed the rent at rs.2,500 p.m. aggrieved by the same, tenants preferred revision petitions in crp nos. 695 and 696 of 1991. the revision petitions were allowed, remitting the matter back to the rent control appellate authority for fixation of the market value of the site and cost of construction, by affording opportunity to both parties to adduce further evidence and also appointing such experts as the court deems fit. 2.4. after remand, the appeals were taken up for disposal by the appellate authority. ex.p-7 - registered sale deed dated 16.11.1983 was marked onbehalf of the landlords. no further oral or documentary evidence was adduced by the tenants. 2.5. taking into consideration ex.c-3, inspection report of the building's valuation and taking into consideration ex.p-7 - sale deed, the appellate authority fixed the fair rent at rs.2,340/-, which is challenged in these revision petitions.3. assailing the impugned order, the learned counsel for the revision petitioners contended that the lower court instead of fixing the fair rent for the petition premises, fixed the fair rent for the premises as in ex.a-7 and erroneously adopted the same for the petition premises. it was further submitted that the appellate authority has not taken into consideration the construction put up by the tenants. arguing further, the learned counsel urged that the demised building is aged 80 years and the depreciation of 4% should have been adopted instead of 2%, taking into account the age and nature of construction of the building.4. laying stress upon ex.a-7 - sale deed, the learned counsel for the respondents/landlords submitted that ex.a-7 property is situated near the demised premises and the appellate authority rightly adopted the value in ex.a-7. it was further submitted that if the fair rent is determined on the total value, it would be very much higher than the fair rent fixed by the lower court and the rent fixed by the lower appellate court does not suffer from any irregularity.5. the demised property is situated in leigh bazar, which is an important marketing centre in salem town. the same is very near to big bazar and other important business localities. the rent of rs.300/- was fixed for the premises, about 17 years prior to the filing of rcop. taking into consideration the rise in the building valuation and the importance of the locality, the landlords filed petition under section 4 of the act for fixing the fair rent. cost of construction of the building shall be made of three ingredients viz., - (1) cost of the site in which the building is constructed. (2) the cost of construction of the building, and (3) the cost of provision of any one or more of the amenities specified in schedule i as on the date of application for the fixation of fair rent. 1983 mlj (ii) 252 : 96 lw 487[k.kaliammal and ors. v. athi v. ramachandra and ors.].6. cost of constructionas per ex.c-1 - commissioner's report, total extent of land under the occupation of the tenants is 5,000 sq.ft. there are three buildings: (a)in d. no. 6a, consisting of terraced and tiled roof building measuring 470 sq.ft. and 235 sq.ft. respectively. the engineer has found that the building is 50 years old. after giving depreciation at 2% p.a., net value of the building was fixed at rs.23,160/-. (b)the terraced house, godown in d.no.6 is found to be 16 years old. the building is built in brick mud with the country wood. the plinth area of the building measures about 964 sq.ft. after allowing depreciation at 2% p.a., the value of the building was estimated at rs.68,112/-. (c)the tiled roof in d. no. 6 and 6-a found to be 15 years old, whose measurement is 1,154 sq.ft. after giving depreciation on account of country wood and rafters on tiled roof, engineer has fixed the value of tiled portion at rs.21,150/-. total cost of construction (a)+(b)+(c) = rs.1,12,422.7. both the courts below have recorded concurrent finding accepting the engineer's report as to the cost of building i.e. rs.1,12,422/-. both the courts have accepted pw-3 - engineer's report and the commissioner's report and that the concurrent findings as to the cost of construction cannot be interfered with.8. market value of the site:as noted earlier, total extent of the demised premises is 5,000 sq.ft. the constructed portion, both terraced and tiled is 2,805 sq.ft. vacant portion is 2,195 sq.ft. 9. as per the decision of the full bench in 1989 (2) mlj 213 [lodha v. renganathan], in calculating the market value of the site in which the building is constructed, plinth area of the building one half thereof has to be taken into consideration. there is no difficulty in applying the formula if it is a case of one building and one tenant. complications arise when there is more than one storey on the building and there is more than one tenant in each storey. with regard to second question referred to the full bench, as to the method of apportionment, in the said decision 1989 (2) mlj 213 full bench has held as under:the set of expressions 'and of a portion upto fifty per cent thereof' cannot be read disjointedly and has got to be read conjontly along with the set of expressions preceding it. the expressions 'and of a portion upto fifty per cent thereof' would have reference only to that portion of the sit on which the building is constructed. the formula to be applied, which is plain in our mind, is that an extent upto fifty per cent of the site on which the building is constructed has got to be carved, out of the vacant land, if any, appurtenant to such building and the market value of that fifty per cent must be added on to the market value of that portion of the site on which the building is constructed, and the rest of the portion of the vacant land has got to be treated as amenity. reading the proviso as a whole, it is not possible to loose sight of the context in which the expression 'upto fifty per cent thereof' occur and 'upto fifty per cent thereof' could have reference only to 'that portion of the site on which the building is constructed'. the language of the proviso being plain, we cannot read it in any other manner, which, if done, in our view, would be a stilted one.... only if there is any vacant land, appurtenant to such building, the application of this formula would arise. if there is no vacant land appurtenant to such building, the contingency to apply this formula would not arise at all. if there is any vacant land, appurtenant to such building, but its extent is equal to or less than the built up extent, the same will have to be annexed to the built up extent, to form the aggregate basis for arriving at the market value of the site. if there is any vacant land, appurtenant to such building, and its extent is in excess of the built up extent carving out of its fifty per cent of the built up extent, to be added to the built up extent, for calculating the market value of the site, the residue of the vacant land has to be treated as amenity.10. in the present case, the constructed portion is 2805 sq.ft. plus 50% of the vacant site i.e. 1097.5 sq.ft., totally 39021/2 sq.ft., has to be taken as site of the building. for the 10th block, sub registrar's valuation is rs.50/- per sq.ft. pw-3 - engineer has adopted the valuation at rs.60/- per sq.ft. i.e in the year 1985. stating that the petition was filed in the year 1984 and giving deduction of 20%, the rent controller fixed the value of the site at rs.48 per sq.ft. the rent controller calculated the site value of 3,9021/2 sq.ft. at rs.46,908/-. as pointed out by the appellate authority, there is arithmetical mistake in the above said calculation. for the site of 3,9021/2 sq.ft., value calculated at the rate of rs.48 per sq.ft. would be rs.1,87,320/-. the rent fixed by the rent controller at rs.1,593 is erroneous because of the arithmetical mistake crept in.11. if the correct arithmetical calculation has been made, the rent would have been rs.2,997/- as under:amount in rs. cost of construction - 1,12,422 market value of the site3,902 1/2 sq.ft @ rs.48/- - 1,87,320per sq.ft----------2,99,742----------rent @ 12% - 2,99,742 x 12 x 1----------------- = 2,997.4212 x 100in the rent control petition, the landlord has prayed for fixation of fair rent only at rs.2,500/-. earlier, the appellate authority has restricted fair rent at rs.2,500/-, as claimed by the landlord.12. after the matters were remanded back to the appellate authority, ex.a-7 - sale deed dated 16.11.1983 was filed. the extent of the property covered under ex.a-3 is 5000 sq.ft. with the building thereon. sale consideration under ex.a-7 is rs.2,34,000/-. government valuation is rs.2,75,000/-. in the said property, there is a terraced building. on the basis of ex.a-7, the appellate authority has straight fixed the fair rent at rs.2,340/- (2,34,000 x 12/100 x 1/12).13. assailing the approach of the appellate court, the learned counsel for the tenants contended that the lower appellate court instead of fixing the fair rent for the petition premises, has fixed the fair rent for the premises in ex.a-7 and adopted the same to the demised premises, which is unsustainable. no doubt, the appellate authority went wrong in adopting the value in ex.a-7 for fixing the market value of the demises premises rather than taking the value in ex.a-7 as basis. perhaps the appellate authority has adopted that approach because fair rent calculated will be more. the appellate authority has adopted the rate as per ex.a-7 seemingly it was advantageous to the tenant. taking ex.a-7 as the basis, square foot value would have been rs.46.8 per sq.ft. in which case, the market value of the site would have been more i.e. it would have been rs.1,82,666/- [if extent of the site is taken as 3,902.5 sq.ft.] or rs.1,97,766/- [if extent of the site is taken as 4,207.5 sq.ft.]. as shown infra, if the land value was fixed at the above rates, the fair rent would have been much more.14. ex.a-7 - sale deed relates to a site of extent of 5,000 sq.ft. with a terraced building thereon situated at a short distance from the demised premises. in ex.a-7, the sale consideration is stated as rs.2,34,000/-. the government valuation is rs.2,75,000/-. the learned counsel for the revision petitioners contended that ex.a-7 includes both land and building and the appellate authority has not deducted any value for the building thereon and has not applied its mind in calculating the value of the site. this contention does not merit acceptance. value of the land stated in ex.a-7 was not the sole evidence to assess the market value. it is only a supporting document to the market value of the site fixed by the engineer. the market value has been fixed not only placing reliance upon ex.a-7 but taking into consideration the independent evidence viz., that of the engineer and the commissioner and the same cannot be faulted.15. it is to be noted that ex.a-7 - sale deed is dated 16.11.1983. rcop was filed in the beginning of 1984. increase in the value of the land from november 1983 till the filing of rcop is also to be taken note of. judicial notice must be taken of the spiralling prices of land. having regard to the escalating prices of the land and cost of materials, there has to be a realistic approach in the matter of estimating the land value and cost of construction.16. though i am concurring with the rent fixed at rs.2,340/-, one patent mistake committed by the authorities has necessarily to be pointed out. while disposing rcop in 1986, the rent controller has taken the extent of the site as 39021/2 sq.ft. that is total built up area 2,805 sq.ft. and 50% of the vacant site, 50% of the appurtenant space i.e. 10971/2 [2195/2]. when rcop was disposed in the year 1986, there was no authoritative decision about the calculation of the extent of the site when there is appurtenant space. the full bench decision in lotha's case 1989 (1) mlj 213 came to be passed later.17. as per the full bench decision in lodha's case, 50% of the built up extent is to be added to the built up extent where the appurtenant space is in excess of the built up extent. in this case, total extent is 5000 sq.ft. built up area is 2,805 sq.ft. the appurtenant space is 2,195 sq.ft. as per the decision of the full bench, the appurtenant space being lesser than the built up extent, the same will have to be annexed to the built up extent to form aggregate basis for arriving at the market value of the site. if the entire appurtenant space is to be annexed to the built up extent, the market value of the site is to be calculated for the entire extent of 5,000 sq.ft. if the market value is calculated, the rent would be rs.3,464/- as noted below:amount in rs.value of the land 5000 x 46.8 : 2,34,000cost of construction : 1,12,422----------3,46,422 ----------rent at 12% 3,46,422 x 12 x 1----------------- : rs.3,464100/1218. assuming for the sake of arguments that only 50% of the vacant site has to be taken, as per the decision of the full bench, it is to be 50% of the built up area. 50% of the built up area would be 1,402.5 sq.ft. the total extent of the site to be taken for market value for arriving at the market value would be 4,207.5 sq.ft., rounded to 4208 sq.ft. in that case, the rent would be rs.3,102 as noted below:amount in rs.value of the land 4268.5 x 46.8 : 1,97,776cost of construction : 1,12,422----------3,10,198----------rent at 12% 3,10,198 x 12 x 1----------------- : rs.3,101.98 100 12 rounded to rs.3,10219. for the sake of arguments, even accepting the case of the tenant, if we take 50% of the vacant site, it would be 1097.5 sq.ft. and total extent to be taken for arriving at the market value would be 3,902.5 sq.ft. if we take that as the basis, the rent would be rs.2,905 sq.ft. as noted below:amount in rs.value of the land 3903 x 46.8 : 1,82,660cost of construction : 1,12,422----------2,95,082----------rent at 12% 2,95,082 x 12 x 1----------------- : 2,950.82100 1220. the above rents are calculated without adding amenities under section 4(4) of the act. if we add the amenities, fair rent would be more. it is thus seen that at any rate, rent would have been higher. if there had been proper application of mind by the appellate authority, the appeal preferred by the landlord would have been allowed, fixing the higher rate of rent. the rent of rs.2,340 fixed by the authorities is far below the fair rent. contentions raised by the tenant is without substance. the objections raised by the tenant are devoid of merits and these revisions are bound to fail.21. in the result, both the revisions are dismissed. no costs. consequently, cmp no. 651/1999 is also dismissed.

Judgment:
ORDER

R. Banumathi, J.

1. Challenging the Order of Rent Control Appellate Authority/Principal Sub Judge, Salem in R.C.A. Nos. 67 and 69/1986, fixing the fair rent at Rs.2,340/-, Tenant has filed these revisions.

2. Factual background which led to these revisions are as follows:

2.1. The demised premises is a non residential building bearing New D. No. 6, 6-A, I Ward, Arisi Palayam, Leigh Bazar, Salem. The premises originally belonged to late Madura Das, Yamuna Das Sait and it was leased out to the father of the Revision Petitioners, who was doing business in the name and style of Subramaniam Udayar and Sons. The contractual rate of rent is Rs.300 p.m. The Respondents/landlords purchased the premises by registered Sale Deeds Exs.A-1 and A-2 dated 16.06.1980. Stating that the present market value of the entire building would be more than Rs.3,00,000/-, landlords filed Petition under Section 4 of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, [for short, 'the Act'] for fixation of fair rent at Rs.2,500/- p.m.

2.2. The Tenants contested the Petition contending that the entire southern half measuring 27' x 100' was a vacant site and after taking it on lease, their father put up tiled roof in the portion measuring 1,155 sq.ft. Tenants are renovating the thatched portion every year and they have also done electrification. The Tenants further contended that the Petition does not contain material particulars like extent of property, plinth area of building and hence, prayed for dismissal of Petition for fixation of fair rent.

2.3. The Rent Controller fixed the fair rent at Rs.1,593/- p.m. by Order dated 29.08.1986. Aggrieved by the same, Tenants preferred RCA No. 69/1986 and landlords preferred RCA No. 67/1986. By the common Order, the Appellate Authority had fixed the rent at Rs.2,500 p.m. Aggrieved by the same, Tenants preferred revision Petitions in CRP Nos. 695 and 696 of 1991. The Revision Petitions were allowed, remitting the matter back to the Rent Control Appellate Authority for fixation of the market value of the site and cost of construction, by affording opportunity to both parties to adduce further evidence and also appointing such experts as the Court deems fit.

2.4. After remand, the appeals were taken up for disposal by the Appellate Authority. Ex.P-7 - Registered Sale Deed dated 16.11.1983 was marked onbehalf of the landlords. No further oral or documentary evidence was adduced by the Tenants.

2.5. Taking into consideration Ex.C-3, Inspection Report of the building's valuation and taking into consideration Ex.P-7 - Sale Deed, the Appellate Authority fixed the fair rent at Rs.2,340/-, which is challenged in these Revision Petitions.

3. Assailing the impugned Order, the learned Counsel for the Revision Petitioners contended that the lower Court instead of fixing the fair rent for the Petition premises, fixed the fair rent for the premises as in Ex.A-7 and erroneously adopted the same for the Petition premises. It was further submitted that the Appellate Authority has not taken into consideration the construction put up by the Tenants. Arguing further, the learned Counsel urged that the demised building is aged 80 years and the depreciation of 4% should have been adopted instead of 2%, taking into account the age and nature of construction of the building.

4. Laying stress upon Ex.A-7 - Sale Deed, the learned Counsel for the Respondents/landlords submitted that Ex.A-7 property is situated near the demised premises and the Appellate Authority rightly adopted the value in Ex.A-7. It was further submitted that if the fair rent is determined on the total value, it would be very much higher than the fair rent fixed by the lower Court and the rent fixed by the lower appellate Court does not suffer from any irregularity.

5. The demised property is situated in Leigh Bazar, which is an important marketing centre in Salem Town. The same is very near to Big Bazar and other important business localities. The rent of Rs.300/- was fixed for the premises, about 17 years prior to the filing of RCOP. Taking into consideration the rise in the building valuation and the importance of the locality, the landlords filed Petition under Section 4 of the Act for fixing the fair rent. Cost of construction of the building shall be made of three ingredients viz., -

(1) Cost of the site in which the building is constructed.

(2) The cost of construction of the building, and

(3) The cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for the fixation of fair rent. 1983 MLJ (II) 252 : 96 LW 487[K.Kaliammal and Ors. v. Athi V. Ramachandra and Ors.].

6. Cost of Construction

As per Ex.C-1 - Commissioner's Report, total extent of land under the occupation of the Tenants is 5,000 sq.ft. There are three buildings:

(a)In D. No. 6A, consisting of terraced and tiled roof building measuring 470 sq.ft. and 235 sq.ft. respectively. The Engineer has found that the building is 50 years old. After giving depreciation at 2% p.a., net value of the building was fixed at Rs.23,160/-.

(b)The terraced house, godown in D.NO.6 is found to be 16 years old. The building is built in brick mud with the country wood. The plinth area of the building measures about 964 sq.ft. After allowing depreciation at 2% p.a., the value of the building was estimated at Rs.68,112/-.

(c)The tiled roof in D. No. 6 and 6-A found to be 15 years old, whose measurement is 1,154 sq.ft. After giving depreciation on account of country wood and rafters on tiled roof, Engineer has fixed the value of tiled portion at Rs.21,150/-. Total cost of construction (a)+(b)+(c) = Rs.1,12,422.

7. Both the Courts below have recorded concurrent finding accepting the Engineer's Report as to the cost of building i.e. Rs.1,12,422/-. Both the Courts have accepted PW-3 - Engineer's Report and the Commissioner's Report and that the concurrent findings as to the cost of construction cannot be interfered with.

8. Market value of the site:

As noted earlier, total extent of the demised premises is 5,000 sq.ft. the constructed portion, both terraced and tiled is 2,805 sq.ft. Vacant portion is 2,195 sq.ft.

9. As per the decision of the Full Bench in 1989 (2) MLJ 213 [Lodha v. Renganathan], in calculating the market value of the site in which the building is constructed, plinth area of the building one half thereof has to be taken into consideration. There is no difficulty in applying the formula if it is a case of one building and one Tenant. Complications arise when there is more than one storey on the building and there is more than one Tenant in each storey. With regard to second question referred to the Full Bench, as to the method of apportionment, in the said decision 1989 (2) MLJ 213 Full Bench has held as under:

The set of expressions 'and of a portion upto fifty per cent thereof' cannot be read disjointedly and has got to be read conjontly along with the set of expressions preceding it. The expressions 'and of a portion upto fifty per cent thereof' would have reference only to that portion of the sit on which the building is constructed. The formula to be applied, which is plain in our mind, is that an extent upto fifty per cent of the site on which the building is constructed has got to be carved, out of the vacant land, if any, appurtenant to such building and the market value of that fifty per cent must be added on to the market value of that portion of the site on which the building is constructed, and the rest of the portion of the vacant land has got to be treated as amenity. Reading the proviso as a whole, it is not possible to loose sight of the context in which the expression 'upto fifty per cent thereof' occur and 'upto fifty per cent thereof' could have reference only to 'that portion of the site on which the building is constructed'. The language of the proviso being plain, we cannot read it in any other manner, which, if done, in our view, would be a stilted one.... Only if there is any vacant land, appurtenant to such building, the application of this formula would arise. If there is no vacant land appurtenant to such building, the contingency to apply this formula would not arise at all. If there is any vacant land, appurtenant to such building, but its extent is equal to or less than the built up extent, the same will have to be annexed to the built up extent, to form the aggregate basis for arriving at the market value of the site. If there is any vacant land, appurtenant to such building, and its extent is in excess of the built up extent carving out of its fifty per cent of the built up extent, to be added to the built up extent, for calculating the market value of the site, the residue of the vacant land has to be treated as amenity.

10. In the present case, the constructed portion is 2805 sq.ft. plus 50% of the vacant site i.e. 1097.5 sq.ft., totally 39021/2 sq.ft., has to be taken as site of the building. For the 10th block, Sub Registrar's valuation is Rs.50/- per sq.ft. PW-3 - Engineer has adopted the valuation at Rs.60/- per sq.ft. i.e in the year 1985. Stating that the Petition was filed in the year 1984 and giving deduction of 20%, the Rent Controller fixed the value of the site at Rs.48 per sq.ft. The Rent Controller calculated the site value of 3,9021/2 sq.ft. at Rs.46,908/-. As pointed out by the Appellate Authority, there is arithmetical mistake in the above said calculation. For the site of 3,9021/2 sq.ft., value calculated at the rate of Rs.48 per sq.ft. would be Rs.1,87,320/-. The rent fixed by the Rent Controller at Rs.1,593 is erroneous because of the arithmetical mistake crept in.

11. If the correct arithmetical calculation has been made, the rent would have been Rs.2,997/- as under:

Amount in Rs. Cost of construction - 1,12,422 Market value of the site3,902 1/2 sq.ft @ Rs.48/- - 1,87,320per sq.ft----------2,99,742----------Rent @ 12% - 2,99,742 x 12 x 1----------------- = 2,997.4212 x 100

In the Rent Control Petition, the landlord has prayed for fixation of fair rent only at Rs.2,500/-. Earlier, the Appellate Authority has restricted fair rent at Rs.2,500/-, as claimed by the landlord.

12. After the matters were remanded back to the Appellate Authority, Ex.A-7 - Sale Deed dated 16.11.1983 was filed. The extent of the property covered under Ex.A-3 is 5000 sq.ft. with the building thereon. Sale consideration under Ex.A-7 is Rs.2,34,000/-. Government valuation is Rs.2,75,000/-. In the said property, there is a terraced building. On the basis of Ex.A-7, the Appellate Authority has straight fixed the fair rent at Rs.2,340/- (2,34,000 x 12/100 x 1/12).

13. Assailing the approach of the Appellate Court, the learned Counsel for the Tenants contended that the lower Appellate Court instead of fixing the fair rent for the Petition premises, has fixed the fair rent for the premises in Ex.A-7 and adopted the same to the demised premises, which is unsustainable. No doubt, the Appellate Authority went wrong in adopting the value in Ex.A-7 for fixing the market value of the demises premises rather than taking the value in Ex.A-7 as basis. Perhaps the Appellate Authority has adopted that approach because fair rent calculated will be more. The Appellate Authority has adopted the rate as per Ex.A-7 seemingly it was advantageous to the Tenant. Taking Ex.A-7 as the basis, square foot value would have been Rs.46.8 per sq.ft. in which case, the market value of the site would have been more i.e. it would have been Rs.1,82,666/- [if extent of the site is taken as 3,902.5 sq.ft.] or Rs.1,97,766/- [if extent of the site is taken as 4,207.5 sq.ft.]. As shown infra, if the land value was fixed at the above rates, the fair rent would have been much more.

14. Ex.A-7 - Sale Deed relates to a site of extent of 5,000 sq.ft. with a terraced building thereon situated at a short distance from the demised premises. In Ex.A-7, the sale consideration is stated as Rs.2,34,000/-. The Government valuation is Rs.2,75,000/-. The learned Counsel for the Revision Petitioners contended that Ex.A-7 includes both land and building and the Appellate Authority has not deducted any value for the building thereon and has not applied its mind in calculating the value of the site. This contention does not merit acceptance. Value of the land stated in Ex.A-7 was not the sole evidence to assess the market value. It is only a supporting document to the market value of the site fixed by the Engineer. The market value has been fixed not only placing reliance upon Ex.A-7 but taking into consideration the independent evidence viz., that of the Engineer and the Commissioner and the same cannot be faulted.

15. It is to be noted that Ex.A-7 - Sale Deed is dated 16.11.1983. RCOP was filed in the beginning of 1984. Increase in the value of the land from November 1983 till the filing of RCOP is also to be taken note of. Judicial notice must be taken of the spiralling prices of land. Having regard to the escalating prices of the land and cost of materials, there has to be a realistic approach in the matter of estimating the land value and cost of construction.

16. Though I am concurring with the rent fixed at Rs.2,340/-, one patent mistake committed by the authorities has necessarily to be pointed out. While disposing RCOP in 1986, the Rent Controller has taken the extent of the site as 39021/2 sq.ft. that is total built up area 2,805 sq.ft. and 50% of the vacant site, 50% of the appurtenant space i.e. 10971/2 [2195/2]. When RCOP was disposed in the year 1986, there was no authoritative decision about the calculation of the extent of the site when there is appurtenant space. The full bench decision in Lotha's case 1989 (1) MLJ 213 came to be passed later.

17. As per the Full Bench decision in Lodha's case, 50% of the built up extent is to be added to the built up extent where the appurtenant space is in excess of the built up extent. In this case, total extent is 5000 sq.ft. built up area is 2,805 sq.ft. The appurtenant space is 2,195 sq.ft. As per the decision of the Full Bench, the appurtenant space being lesser than the built up extent, the same will have to be annexed to the built up extent to form aggregate basis for arriving at the market value of the site. If the entire appurtenant space is to be annexed to the built up extent, the market value of the site is to be calculated for the entire extent of 5,000 sq.ft. If the market value is calculated, the rent would be Rs.3,464/- as noted below:

Amount in Rs.Value of the land 5000 x 46.8 : 2,34,000Cost of construction : 1,12,422----------3,46,422 ----------Rent at 12% 3,46,422 x 12 x 1----------------- : Rs.3,464100/12

18. Assuming for the sake of arguments that only 50% of the vacant site has to be taken, as per the decision of the Full Bench, it is to be 50% of the built up area. 50% of the built up area would be 1,402.5 sq.ft. The total extent of the site to be taken for market value for arriving at the market value would be 4,207.5 sq.ft., rounded to 4208 sq.ft. In that case, the rent would be Rs.3,102 as noted below:

Amount in Rs.Value of the land 4268.5 x 46.8 : 1,97,776Cost of construction : 1,12,422----------3,10,198----------Rent at 12% 3,10,198 x 12 x 1----------------- : Rs.3,101.98 100 12 rounded to Rs.3,102

19. For the sake of arguments, even accepting the case of the Tenant, if we take 50% of the vacant site, it would be 1097.5 sq.ft. and total extent to be taken for arriving at the market value would be 3,902.5 sq.ft. If we take that as the basis, the rent would be Rs.2,905 sq.ft. as noted below:

Amount in Rs.Value of the land 3903 x 46.8 : 1,82,660Cost of construction : 1,12,422----------2,95,082----------Rent at 12% 2,95,082 x 12 x 1----------------- : 2,950.82100 12

20. The above rents are calculated without adding amenities under Section 4(4) of the Act. If we add the amenities, fair rent would be more. It is thus seen that at any rate, rent would have been higher. If there had been proper application of mind by the Appellate Authority, the appeal preferred by the landlord would have been allowed, fixing the higher rate of rent. The rent of Rs.2,340 fixed by the authorities is far below the fair rent. Contentions raised by the Tenant is without substance. The objections raised by the Tenant are devoid of merits and these revisions are bound to fail.

21. In the result, both the revisions are dismissed. No costs. Consequently, CMP No. 651/1999 is also dismissed.