ORDER
Prabha Sridevan, J.
1. These revisions arise out of an order passed under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control Act (hereinafter referred to as the Act). The landlords are the petitioners in both the revisions. One Adaikala Mary was the landlady who filed the application and the petitioners were brought on record as her legal representatives pending C.R.P. Since the 1st petitioner died, the 2nd petitioner his son was recognised as the 1st petitioner’s legal representative for the purpose of prosecuting the revisions.
2. Adaikala Mary, the landlady filed R.C.O.P. No. 603 of 1993 for fixing the fair rent. According to her, the fair rent per month was Rs. 2,954. The Rent Controller fixed the fair rent at Rs. 1,774. Against this, the tenant filed R.C.A. No. 274 of 1995 and the landlords filed R.C.A. No. 311 of 1995. The appellate Authority allowed the tenant’s appeal and dismissed the landlords appeal by fixing the fair rent at Rs. 1,374 per month. Against this, the two revisions have been filed by the landlord. The tenant has not filed any revision.
3. Mr. Rathnadurai, learned Counsel for the petitioners submitted that his document Ex.P-1 was not at all considered by the Appellate Authority and if that had been taken into account, the rent would not have been fixed at such a low level. Ex.P-1 would show that the property would fetch a higher rent. He also submitted that the vacant land had not been taken into account though it was admitted by the parties that there was vacant land. He pointed out to the appellate Judge’s order where after referring to the guideline value, which gives the value per ground at Rs. 7.50 lakhs, the Appellate Authority had for no reason fixed the ground value at Rs. 7.00 lakhs per ground. He submitted that the Appellate Authority had erred in not looking at Ex.P-11 which was a document which would show the correct value per ground. The reason for the Appellate Authority not adverting to this document was because of the Supreme Court ruling that if a document is not marked through a party to the document, it cannot be received in evidence. In Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah (2001) 2 C.T.C. 424, the Supreme Court had reversed the two Judge Bench decisions in Inder Singh v. Union of India and P. Ram Reddy v. Land Acquisition Officer, Hyderabad and held that certified copies of sale deeds could be considered and parties who support or oppose the said document are not prevented to adduce their evidence to substantiate their stand and the mere acceptance of evidence does not mean that the Court is compelled to accept such transaction, it might treat it as evidence. In view of the change of law, the learned Counsel submitted that the Appellate Authority ought to have considered Ex.P-11.
4. Learned Counsel are relied on the following decisions: Shaw Wallance and Co. Limited v. Govindas Purushothamdas and Anr. (2001) 2 M.L.J. (S.C.) 80, Khasim Khaleali v. State of Tamil Nadu and Md. Abdulla and Sons v. Dorai Arasu .
5. Learned Counsel for the respondent on the other hand submitted that the Court below grievously erred in accepting the market value when it did not pertain to the relevant year. He also submitted that his sale deed ought to have been looked into and the rejection of those documents on the ground that they were not marked through the concerned parties was not correct in view of the latest Supreme Court decision and he also submitted in these circumstances, the C.R.Ps. ought to be remanded. For this purpose, he relied on the following decisions:
(i) Dovo Tax Co. v. T.R. Ramanath 1999 L.W. 269; (ii) Maya Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L W. 497; (iii) Srirangaraja v. Ponniah Thevar (2000) 2 M.L.J. 204; (iv) Sakthi & Co. v. Desigachary ; (v) South India Corporation Agencies Ltd. v. Chandrakanth C. Bandani ;(vi) N. Sulaiman v. R. Ravichandran 1995 T.L.N.J. 226; (vii) Land Acquisition Officer v. V. Narasaiah 2001 T.L.N.J. (S.C.) 33; (viii) K.M. Abdul Razzak v. Damodharan ; (ix) D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L.W. 826.
6. One of the questions that has first got to be decided before considering the submissions with regard to the quantum of fair rent made by both counsel is, whether the tenant not having filed a revision can be heard to say that the matter must be remanded. The Rent Controller fixed the ground value at Rs. 10.00 lakhs per ground. The tenant dissatisfied, filed one appeal and the landlords filed another. The Appellate Authority allowed the tenant’s appeal and dismissed the landlords’ appeal. The tenant was not aggrieved by the fair rent that was fixed by the Appellate Authority and he did not choose to file any revision. The question is, whether he can now urge in the revision filed by the landlord that the fair rent has to be reduced though he did not challenge the fair rent fixed by the Appellate Authority. Learned Counsel for the respondent strenuously argued that he should be allowed to attack the fair rent fixed by the Appellate Authority on the ground the fair rent is fixed only for the building and not vis-a-vis, the tenant or the landlord.
7. In the decision reported in Dovo Tax Co. v. T.R. Ramanath 1999 L. W. 269, the landlords claimed that the building would fetch a rent of Rs. 1,250. The Rent controller fixed the fair rent at a higher rate. The tenant contended that he could not. This High Court held thus:
The fair rent is fixed for the building in question in accordance with the provisions of the Act. It is not fair rent for the landlord or for the tenant, but for the building and as such the Rent Controller is free to fix the fair rent as per law untrammelled by the contentions of the parties.
8. In Maya Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L.W. 497, this Court held that fair rent should be determined by the Court. The RW.D. rates can be looked into and when the statute provides certain guidelines, the Court is bound to take note of that and therefore set aside the orders of the Rent Control Authorities and remanded the matter.
9. The decision reported in Srirangaraja v. Ponniah Thevar (2000) 2 M.L.J. 204, arises out of an order of eviction and where the learned Judge held that if a material piece of evidence is not considered, it would affect the decision of the case. This was relied on by the learned Counsel for the respondent to show, how the failure to refer to the sale deed marked by him had materially affected the decision of the case.
10. In Sakthi & Co. v. Desigachary , this Court was called upon to consider whether an application can be filed under Section 11 of the Act while proceedings under Section 4 are pending. It was held that it cannot be done. This does not apply to the present case.
11. In K.M. Abdul Razzak v. Damodharan , the Rent Controller had found that the building was in a dilapidated condition and the landlord had not established bona fide requirement. The Supreme Court held that the High Court cannot reappraise or reassess evidence and arrived at a finding contrary to the finding recorded by the Court below and held that the High Court ought to have remanded the case to the appellate Court if there was a change in position of law. The change in position in that case was the modification of the effect of the P. Orr. & Son’s case by the subsequent decision in Vijay Singh’s case.
12. In D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L. W. 826, the tenant filed an appeal against the order of Rent Controller fixing the fair rent. The Appellate Authority raised it and the tenant filed a revision. This Court dismissed the revision on the ground that the Appellate Authority has got all the powers of the Rent Controller and it can reappreciate and recalculate and fix the fair rent according to the norms laid down under the act and fixing of fair rent does not mean it should be favourable or beneficial to one party. It only means, fair rent as far as the premises is concerned.
13. In South India Corporation Agencies Ltd. v. C. Chandrakanth, Bandani , this Court held that fixing of fair rent has to be done considering the pleadings and evidence available on record and cannot be made on concession of parties. Interference with the revisional Court is uncalled for unless there is perversity in the approach of the authorities below.
14. I am afraid, these decisions do not come to the aid of the respondent. It is true that fair rent is fixed only for the building. The Rent Controller fixed the fair rant at Rs. 1,774 per month in one case and Rs. 887 in the other. The tenant filed one appeal and the landlord filed another. The appellate Court fixed fair rent in both the appeals at Rs. 1,374. The tenant was satisfied and now the learned Counsel wants this Court to interfere in revision at his behest. I am afraid, that cannot be done. It is true that the fair rent under Section 4 of the Rent Control Act is fixed with reference to the premises.
15. In D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L.W. 826, in paragraphs 6 and 7, it was held thus:
It is clear from the above decision that fair rent is fixed for the building whether it is applied by tenant or landlord. Fixation of fair rent does not mean fixation of low rent favourable or beneficial to the advantage of tenant, as that would result in landlord getting only an unfair rent. A fair rent is fixed as per the specified procedure provided under the Act. Fair rent is essentially just rent having regard to all the circumstances and it is not rent favourable to the tenant as such. Whoever may be the applicant, the fair rent will have to be fixed according to the norms prescribed under the Act.
In Savani Transports (P) Ltd. v. N. Jamal Mohammed (1989) 1 M.L.J. 211 : (1989) 1 L. W. 172, landlord wanted to fix fair rent at a particular amount. But, when the procedure under the Act was followed, the fair rent will be far in excess of the amount claimed by the landlord. The question was whether the Court is entitled to fix fair rent than what is claimed by the landlord.
16. And again in Dovo Tax Co. v. T.R. Ramanath 1999 L.W. 269, from which already a passage had been extracted, this Court held that the Rent Controller is free to fix fair rent as per law. This freedom of discretion is also applicable to the Appellate Authority and the Appellate Authority has fixed the fair rent on an appreciation of the materials before it. This fair rent was fixed not with reference to the tenant or the landlord, but because the Appellate Authority came to the conclusion that this was the fair rent with regard to the building. It is evident that the tenant also felt satisfied that this was the fair rent as far as the building was concerned and he did not challenge the orders passed by the Appellate Authority and therefore, he cannot claim to be a person aggrieved under Section 25 of the Act and seek for reduction of the fair rent fixed by the Appellate Authority.
17. Now, we come to the quantum of rent. As far as the area is concerned, both the courts held that the built-up ares is 320 square feet. The landlord’s case that the appurtenant vacant land was not taken into consideration was rejected by both the Courts. Learned Counsel for the petitioners submitted that the evidence of R.W.1 the respondent clearly shows that there is open land. He has stated as follows:
But however, the Engineer’s report filed on the side of the petitioners do not show the existence of vacant land. The Engineer’s Report reads that he took measurement of the entire portion and compared it with the sale deed under which the vacant land pertaining to the above property was bought. In the measurements of the entire portion, he has given the measurement as 320 square feet. In fact, even the petitioner in his evidence has only referred to one area and that is 320 square feet. In view of the concurrent findings of both the Courts with regard to the area, I do not want to interfere with the same, since there does not appear to be any error in this regard.
18. With regard to the value of the site, the trial Court fixed it at Rs. 10.00 lakhs, per ground. The Appellate Court fixes it at Rs. 7.00 lakhs, per ground. The Appellate Court has also referred to Exhibits P8 and P9 which are the guideline values from which the appellate Court calculates the ground value at Rs. 7,46,160. Learned Counsel for the respondent fervently urged that his document which is Ex.R-3 was not considered and therefore, the matter has to be remanded. But for the reasons given in the aforesaid paragraphs, I am of the opinion that as far as the respondent is concerned, he has allowed the decision of the Appellate Authority of fixing the rent at Rs. 1,372 per month to be the fair rent for the premises and therefore, this submission made by the learned Counsel for the respondent is rejected. As regards Ex.P-11, it is relied on by the Rent Controller to arrive at the fair rent of Rs. 10.00 lakhs. This is rejected by the Appellate Authority. The Appellate Authority not only refers to the decision of this Court and the Supreme Court that unless the parties concerned with the document are examined, the sale deeds cannot be relied on for fixing the value of the site, but the Appellate Authority also on a consideration of the evidence of R.W.2, through whom Ex.P-11 was marked, finds that the said witness only admits the factum of sale, but not the circumstances under which this value was arrived at. It is seen from the document Ex.P-11 which is marked through R.W.2 the respondent herein that the petition premises is very close to the property, subject matter of Ex.P-11. R.W.2 admits from a perusal of the document, regarding the consideration for which the property has been sold.
19. Now, we come to the relevance of Exs.P-8 and P-9 which are the guideline values. The suit property is situated at T.S.No. 1/67. For the relevant survey number the value is Rs. 310.90 per square feet. The Appellate Authority order reads thus:
There does not seem to be any justification for fixing the value of the site at Rs. 7.00 lakhs when the Appellate Authority has the document before the Court which shows the guideline value to be Rs. 7.50 lakhs.
20. Learned Counsel for the respondent relied on the decision reported in Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and Ors. , where the Supreme Court held that there is no statutory foundation for accepting the basic evaluation register maintained by registering authority for collection of stamp duty and that evidence of price fetched in comparable sale transaction is generally accepted as the best method to determine the market value.
21. Learned Counsel for the respondent relied on Rahmath Fathima T.H.S. v. T.K. Kader Mohideen (1996) 2 L.W. 637, where this Court held that the Government fixes the value only for the purpose of stamp duty and that the market value for a particular survey number is the result of a bargain between the parties. In that case, Ex.P-5 which was the disputed document was a sale deed. According to him, Ex.P-5 represents the market value and it was contended that Ex.P-5 would not have been registered if the transaction is less than the value fixed by the Government. It is in that context that the learned Judge held that the market value of a particular survey number is the result of a bargain between the parties and it is to be proved by evidence.
22. Learned Counsel for the respondent relied on Srinivasa Gounder v. K. Venkatesan (1997) 3 L.W. 193, in which the Appellate Authority had relied upon the hearsay evidence of P.W.1 on the basis of information ascertained by him from the Sub Registrar’s Office. The High Court held that this procedure is wrong.
23. In the decision reported in N. Sulaiman v. R. Ravichandran 1995 T.L.N.J. 226, this Court has held that the guideline value adopted by the registering authorities may be taken as a guidance.
24. From the decisions cited by both the counsel, it is seen that the value fixed by the Government for the purposes of stamp duty has no relevance and judicial notice cannot be taken for the same. For determination of the market value, transaction between a willing purchaser and a willing seller will alone form the basis. Viewed at from this angle, we are left only with Ex.P-11. The Appellate Authority has rejected Ex.P-11, one, on the ground that this had not been marked through either of the parties and another on the ground that he has not spoken to the correctness of the consideration recorded in those sale deeds. As regards the acceptability of document without examining anybody connected with the transactions for proving market value, the Supreme Court has recently held in the decision cited above in Land Acquisition Officer and Mandal Revenue Officer v. Narasaiah (2001) 2 C.T.C. 424, that certified copy of registered documents may be accepted as evidence of transaction. Ofcourse, there is no compulsion to accept them, but in the same decision, the Supreme Court has held that Court can act on documents regarding transactions recorded in such documents and it was open to the parties to support or oppose the said document of transaction and they are not prevented from adducing their evidence to substantiate their stand. In this case, the document itself was marked only through R.W.2 who has not said anything in his evidence even in the cross-examination regarding the bona fides or the genuineness of the transaction.
25. Now, as regards relevance of this document, in May a Appliances and Centred Equipments, etc. v. A. Sulochana Reddy (1996) 1 L.W. 497, the learned Judge had held that for determination of market value according to legal principles, transaction by a willing seller to a willing purchaser in open market must be considered and not the mere opinion or suggestion by the landlord and any transaction that takes place in a nearby locality after the institution of the fair rent application within a reasonable period thereafter has been held to be of material use in fixing the market value. In this case, I am of the opinion that the Appellate Authority went wrong in rejecting Ex.P-11 and fixing the market value at Rs. 7.00 lakhs without any document to support that rate and using the guideline value for reference when all the decisions referred to both by the counsel for the petitioners and the respondent are to the effect that this cannot be taken judicial notice of. R.W.2 himself deposes in his evidence that the decision premises is only two doors away from the premises which is subject matter of Ex.P-11. In these circumstances, I think, the value reflected in Ex.P-11 can be accepted as market value.
26. The decision reported in D.V. Ramana alias Venkataramana Bhat v. P.S. Rathina Bai (2000) 1 L. W. 826 clearly lays down that the fair rent will have to be fixed having regard to all the circumstances and it is not the rent favourable to either the landlord or the tenant. In the decision reported in Land Acquisition Officer and Mandal Revenue Officer v. Narasaiah (2001) T.L.N.J. 33 : (2001) 2 C.T.C. 424 it was held that the transaction recorded in the exhibits marked in the case that was under consideration could be relied on though no one was examined for proving such transaction. This conclusion was arrived at because in that case, the State had not created any doubt regarding the bona fides or genuineness of the transactions mentioned therein. In this case, the appellate Court declined to accept the value of the site recorded in Ex.P-11 though the transaction was not denied by R.W.2, the respondent herein nor was anything elicited in the oral evidence that the transaction was not genuine. One of the parties to this sale deed is a public limited company namely the Coramandel Engineering Company and we have no reason to believe that the sale consideration reflected therein is inflated or that it was a distress sale.
27. In these circumstances, I have no hesitation in adopting this value for the purpose of calculating the market value of the site. The calculation made by the appellate Court is left undisturbed otherwise. The cost of construction for 320 sq.feet at the rate of Rs. 160 less depreciation was fixed at Rs. 44,083. The value of the site in Ex.P-11 is Rs. 1,86,253 for 558 sq.feet. Therefore, for one ground, the value is about Rs. 8,01,088. The value of 320 sq. feet is calculated as 320 x 801088/2400 which will give us Rs. 1,06,811. Therefore the total value will be Rs. 1,50,894. Since tenancy is non-residential, 12% of this is calculated and a sum of Rs. 1508.94 is arrived at which is rounded off to Rs. 1,509. This will be the fair rent.
28. In the result, the C.R.Ps. are allowed. The fair rent for the petition premises is Rs. 1,509. No costs.
29. Prabha Sridevan, J.: In these cases judgment was pronounced on 31.7.2001 and the fair rent was fixed on the basis of Ex.P-11. Immediately, the learned Counsel for the respondent brought to my notice that Ex.P-11 is of the year 1994 and therefore, it cannot be relied on for the purpose of fixing the fair rent in a petition filed in the year 1993 itself and therefore, the matter was listed today for further arguments. But, I find from a perusal of Ex.P-11 that the argument between the parties was entered into in 1991 itself and the Income Tax clearance certificate was also obtained in the same year. So, the objection raised by the learned Counsel for the respondent that the sale deed is one year subsequent to the Rent Control Original Petition and the consideration reflected in a subsequent sale deed cannot be relied upon, cannot be accepted. There is no reason for any alteration in the fair rent already fixed and the order passed on 31.7.2001.