Fixation of fair rent of the building.

“In view of the Judgment of the Supreme Court in K. C. Nambiar v. IVth Judge of Court of Small Causes, Madras1 striking down, rule 12 of the Rules, made under section 34, the finding of the Appellate Authority on the question of costs of construction is set aside and the appellate authority will take this on his file and submit a finding on the cost of construction. The Appellate Authority is entitled to take fresh evidence adduced, by the parties. Time for submission of finding four months”. In pursuance of the aforesaid order of the High Court the IV Judge, of the Court of Small Causes submitted the following finding:

2. Finding submitted in obedience to the order of Hon’ble High Court in. C.R.Ps. Nos. 1606 and 2206 of 1968 dated 27th November, 1970. The Hon’ble High Court has observed that in. view of the judgment of the Supreme Court striking down rule 12 of the Rules framed under the Madras Building (Lease and Rent Control) Act, the finding already submitted by this appellate Court in H.R.As. No. 806 of 1965 and 833 of 1965 is set aside and the Hon’ble High Court had directed this Appellate Court to submit a finding on the cost of construction, after taking fresh evidence that may be adduced by the parties. In obedience to the direction of the High Court further enquiry was held and the parties have examined P.Ws. 2 and 3 and R.Ws. 3 and 4 and have marked Exhibits P-3 to P-6 and R-26. The learned Counsel appearing on either side had also submitted arguments.

3. The point for consideration is what is the cost of construction of the premises occupied by the tenant?

4. The Point: Section 4, Sub-clause 3 (a) of the Rent Control Act indicates the fair rent for any non-residential building and one of the constituents to be considered for arriving at the fair rent under the said section is the cost of construction of the non-residential building. This should necessarily mean after the striking down of rule 12 the cost of construction of the building at the particular time when the building was constructed. P.W. 2 had admitted that he is just 49 years old and therefore, he could not have had any personal knowledge about the actual cost of materials at the time when this building had been constructed. According to P.W. 2 this building should be 5o years old. Therefore, he would state that he had taken the assistance of another experienced contractor to assess the value of the materials and works at the period when the petition-premises was built It is, therefore, clear that his evidence is not based upon his own knowledge but is based upon the assistance rendered by some other person. Admittedly P. W. 2 had not worked out the value of the materials. He had only assumed the depth of the foundation and the materials used for the construction. He had also admitted that he has not given measurements for the windows and doors in the premises. Therefore, the estimate prepared by him and marked as Exhibit P-3 cannot give any guidance and it cannot be accepted.

5. P. W. 3 who claims to have given the assistance to P. W. 2 in the preparation of the estimate, Exhibit P-3, would state that the cost of construction 50 years ago for the type of building in-volv,d in the petition premises will be Rs. 3 per sq. ft. He has not obtained any record or vouchers to show the prices of building material 50 years ago. Admittedly he has not got to much of work as to earn assesable income. He had given only the rates to P. W. 2. As has been already observed when there are no documents or vouchers to indicate the rate of the materials 50 years back the rate furnished by P.W. 3 cannot be accepted as providing a safe guidance and, therefore, the estimate, Exhibit P-3, prepared on the assistance given by P.W. 3 cannot be accepted. One other circumstance will also make the evidence of P.Ws. 2 and 3 unacceptable and that is this:

6. P.W. 2 has deposed that he did not find any new construction in the petition-premises. He would deny the suggestion that a por