ORDER
K.M. Natarajan, J.
1. The tenant has preferred this revision challenging the concurrent findings of both the forums below, fixing fair rent for the petition mentioned building at Rs. 725 per month.
2. The facts which give rise to this revision can be set out briefly as follows:
The respondents herein, who are the landlords, leased out the petition mentioned premises situate at Pycrofts Road, Triplicane, Madras, on a monthly rent of Rs. 400 for non-residential purpose. They filed the petition for fixation of fair rent on the ground that the building consists of three floors, namely, ground floor, first floor and second floor and it is in an important locality and that considering the prevailing rate of rents in the neighbourhood as well as the market value of sites, the contractual rate of rent is very low. According to the respondents, the value of the site per ground is Rs. 96,000. The age of the building is 50 years and it is type II building. The building was built up with brick and lime and also cement mortar. They also claimed 25% for amenities. On the basis of the above particulars, according to them, the fair rent could be fixed at Rs. 1,850.
3. The said petition was resisted by the revision petitioner herein, who was the respondent before the Rent Controller, and he contended that the building is very old and the present rate of rent at Rs. 400 is more than the fair rent. The value of the site per ground is about Rs. 25,000. He put up lights, fans, fanpoints, overhead tank, etc. in the petition mentioned premises. He effected improvements to the tune of Rs. 7,000.
4. On the side of the respondents herein, one Engineer was examined as P.W.1 and his report is marked as Ex. P.1, while on the side of the petitioner herein, one Engineer was examined as R.W.1 and his report was marked as Ex. R-1. The petitioner examined himself as R.W.2 Exs.R.2 and R-3 lease deeds and Ex. R-4 Corporation extract were marked. The Rent Controller after considering the evidence adduced on both sides, fixed the value of the site at Rs. 35,000 per ground and the age of the building 50 years. As regards the cost of construction, he adopted the P.W.D. rates. But, he has not given any value for amenities, as they are stated to be provided by the petitioner herein, on the basis of the above particulars, the fair rent worked out at Rs. 725 per month. The tenant and the landlords preferred appeals to the appellate authority who confirmed the fair rent fixed by the Rent Controller. The tenant has preferred this revision. The learned Counsel for the revision-petitioner raised various contentions in this revision challenging the quantum of fair rent fixed by both the authorities below. The first submissions that it is seen from the evidence of R.W.1 that the petition mentioned premises is used as restaurant, that in view of the definition of ‘building’ under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act), the petition mentioned building does not come under the said definition and that, as such, the Act is not applicable. I do not find any merit in the said contention. Section 2(2) of the Act reads as follows:
“Building” means any building 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… but does not include room in a hotel or boarding house. Here, the subject matter is not a room in a hotel or boarding house. Further, though it is alleged in the petition by the respondents-landlords that the building is let out for non-residential purpose, it is nowhere whispered in the counter that the petition mentioned building does not come under the definition of the Act and that Act is not applicable on that score. Further, the said contention was not forwarded before both the lower forums. The learned Counsel for the revision-petitioner drew my attention to Illustration (3) to Section 30 of the Act and submitted that where a hotel building together with the furniture, machinery and other articles necessary for the running of a hotel business is leased and the tenant is to run the hotel business in such building, the Act does not apply to such building. There is absolutely nothing to show that except the building any other furniture or machinery necessary for running hotel business was given to the revision-petitioner. Even in the lease deed, it is provided that the lessee is entitled to use the building for running a mess and letting rooms for lodgers, besides occupying a portion for residential purpose etc. Hence, the said contention is not available to the revision-petitioner. Next it was contended by the learned Counsel for the revision-petitioner that rent was fixed by the parties for the period fixed under the contract in force, that such only the contract rent prevails and that the respondents are not entitled to maintain the petition for fixation of fair rent. In Raval & Co. v. K.C. Ramachandra and Ors. , while considering the applicability of Section 4(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act to contractual tenancies and whether a landlord is entitled to apply for fixation of fair rent during the subsistence of contractual tenancy, it was held:
A close reading of the Act [Section 4(1) of the Tamil Nadu buildings (Lease and Rent Control) Act] shows that the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory tenant. What is the tenant whether a contractual tenant or to the landlord who applies for fixation of fair rent but fair rent for the building something like an incident of the tenure regarding the building.” It is also held in the said decision:
It is clear therefore that the fair rent under the present Act is payable during the contract period as well as after the expiry of the contract period.
The said decision is the complete answer to the contention of the learned Counsel for the revision-petitioner is that the cost of construction of the building has to be assessed at the time of construction and not on the date of the application, relying on the decision of the Supreme Court in K.C. Nambiar, v. IV Judge Court of Small Causes (1970) 2 M.L.J. 24 (S.C.). The said contention was considered by S.A. Kader, J., in Dovo Company, v. T.R. Ramanath 99 L.W. 269 wherein it was observed as follows:
The main contention advanced by the learned Counsel for the tenant-revision petitioner in C.R.P.No. 2086 of 1983 is that the cost of construction must be the cost of the building as at the time of the construction of the building 75 years ago and reliance is sought to be placed on the decision of the Supreme Court in K.C. Nambiar v. IV Judge, Court of Small Causes (1970) 2 M.L.J. (S.C.) 24. It was held therein that 4(3)(b) of the Madras Buildings (Lease and Rent Control) Act, 1960, meant the cost of construction with such additions as may be required to be made for subsequent improvements. It does not mean, as held by Madras High Court, the value of the building reproduced at the date when the Act came into force reduced by depreciation at the prescribed rates, hence Rule 12 of the Madras Buildings (Lease and Rent Control) Rules, 1961, which plainly went beyond the terms of the “section was struck down as invalid. Subsequent to the decision of the Supreme Court, Section 4 has been substituted by a new section by Amendment Act 23 of 1973. The Section as it now stands clearly lays down that the cost of construction of the building and the cost of the provisions of any one or more of the amenities specified in Schedule I shall be as on the date of the application for fixation of fair rent. The contention of the learned Counsel for the revision petitioners in C.R.P. No. 3253 of 1983 cannot, therefore, he accepted”. I am in respectful agreement with view expressed by the learned Judge in the above decision, as it is in conformity with the amendment by new section introduced by Act 23 of 1973 wherein it has been specifically mentioned that only the date of the application for fixation of fair rent is to be taken as criteria. Hence, I do not find any merit in the said contention also.
5. Next it was contended by the learned Counsel for the revision petitioner that P.W.1 Engineer examined on the side of the respondent herein (Landlords) has stated that the rates are based on the estimates of 1977, while the fair rent petition was filed in 1975 and the court was trying to find out the fair rent of 1975. According to him, the fixation of fair rent on the basis of the evidence of P.W.1 is erroneous and liable to be set aside. On going through the evidence of P.W.1, it is seen that though he has stated in the very first sentence in cross-examination that he has taken 1977 P.W.D. rates and they change from year to year, he has subsequently stated that the cost of construction which he has given in his report is for the year 1975. It is seen from the evidence that in 1975 for class I building, the rate of cost of construction per sq.ft. was Rs. 36 and it was Rs. 31 for Class II building and it was about Rs. 27 or Rs. 28 for class III building. For asbestos cement roof, the value in 1975 was Rs. 20 per sq.ft. Thus it is clear that the cost of construction given by him is only in respect of the year 1975 and not in the year 1977 as contended by the learned Counsel for the revision petitioner. Even the Engineer examined on the side of the revision-petitioner has admitted that he did not have an authenticated copy of the P.W.D. rates and that there are no materials to show that he verified in the P.W.D. office the P.W.D. rates. He categorically admitted that he has gone through the report Ex.P.1 given by P.W.1 and he did not have any dispute regarding the measurements and he agreed with the plinth areas of the building, site, first floor, etc. as given by P.W.1 When a question was put as to whether he can say that the construction of the building in the ground floor will cost Rs. 50 per sq.ft., that the construction of the first floor will cost Rs. 45 per sq.ft. and that the construction of A.C. roof will cost Rs. 25 per sq.ft. he replied that they cannot say, so also that the cost of construction of second floor will be Rs. 45 per sq.ft. he frankly admitted that the value of the site is increasing every day in the city. On the other hand, both the authorities below accepted the evidence of P.W.1 after having regard to the facts and circumstances of the case and the location of the building and the cost of construction given as per the P.W.D. rates in respect of the areas of the three floors. There is absolutely nothing to reject the evidence of P.W.1 and his report. Even though P.W. 1 has stated that the building is 40 years old and R.W. 1 has stated that it is 60 years old the court below has fixed the age of the building as 50 years. Similarly, as regards the market value of the site, the respondents-landlords claimed at Rs. 96,000 per ground, while the value given by the revision petitioner is Rs. 25,000 per ground. The petitioner R.W. 2 himself has admitted that the site value is Rs. 50,000 so also, the Engineer who was examined as P.W.1 has given the value at Rs. 50,000. Though R.W. 1 has stated that he has adopted the value of the land tax authorities in 1963 and that he has doubled it in the year 1975 as Rs. 26,000, there is absolutely nothing to show that the site, which is less than 3/4 of the ground, has been assessed by the urban land tax authorities and no record has been produced. Even otherwise, the value fixed by the Urban Land Tax Authorities cannot be taken as a conclusive and correct value. Both the authorities below fixed the site value at Rs. 35,000 per ground. Considering the location of the premises in a very important locality of the Madras city, it cannot be said that the land value fixed is excessive or beyond all proportion. Both the authorities have rejected the value given by the tenant and accepted the value given by the landlords. There is no dispute with regard the cost of construction adopted by both the authorities below. Hence, on going through the entire materials placed before me and the concurrent findings of both the forums below. I am of the view that both the authorities below have come to the correct conclusion on the basis of the evidence adduced before them and in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of 1973, and fixed the fair rent at Rs. 725. There is absolutely nothing to hold that the said finding suffers from any infirmity, impropriety or illegality whatsoever so as to warrant any interference in this revision.
6. In the result, the fair rent fixed at Rs. 725 by both the forums below is confirmed and this revision fails and stands dismissed. However, in the circumstances of the case, there will be no order as to costs.