Fixation of ground value.

Both the tenant and the landlords have filed the Civil Revision Petitions herein. H.R.C.No.1855 of 1979 was filed by the landlords for fixing fair rent. The premises in question are New Door No.9, Old No.50, Harrington Road, Chetput, Madras. The contractual rent is Rs.2,400/-. The tenant is running a school by name Sherwood Education Society. Mr.Viswanathan, learned counsel appearing for the tenant states that more than two thousand pupils are studying in this school. The Rent Controller fixed the fair rent at Rs.4,200/- per month. The landlords preferred H.R.A. No.402 of 1980 for enhancing the fair rent. The tenant preferred H.R.A.No.320 of 1980 for reducing the rent fixed by the Rent Controller. The lower appellate Authority enhanced the fair rent to Rs.6,185/- on the appeal H.R.A.No.402 of 1980. The appeal filed by the tenant, i.e. H.R.A.No.320 of 1980 was dismissed. The tenant has preferred C.R.P.No.3769 of 1982 against H.R.A.No.402 of 1980 and C.R.P.No.3770 of 1982 against H.R.A.No.320 of 1980. The landlords have preferred C.R.P.No.20 of 1983 for enhancing the fair rent fixed by the lower appellate Authority.

2. Mr.Viswanathan, learned counsel appearing for the tenant, took me through the pleadings, evidence and the orders of the Authorities below and contended that both the

Rent Controller and the lower appellate Authority are not correct in enhancing the contractual rent fixed per month. Mr.Mateen Ghatala, the learned counsel appearing for the landlords, contended that the rate of construction as per P.W.7 should have been taken and should be on the present market rate; that the open space should be taken into consideration and that will include the playground also for calculating the cost of the demised portion; and that the rent fixed by the lower appellate Authority has to be enhanced.

3. During the arguments, the respective counsel had to accept that the cost of construction stated by the tenant is correct. One of the landlords who was examined as P.W.1 has, in his examination-in-chief itself, accepted that the cost of construction stated by the respondent is correct. To substantiate this aspect of the case there is the evidence of R.W.I the engineer examined on the side of the tenant. Further, both the Counsel accept the measurements given for various constructions and the extent of the land on the demised portion and also accept that the age of the building is forty years. The lower appellate authority has included the sheds put up by the tenant in an area of 2061 sq.ft. and added it to the cost of construction incurred by the landlords. This method of calculation cannot be sustained in view of the decision rendered ,in C.S.RAJAVELAN AND OTHERS v. A.N.PARASURAMA IYER, (1970)83 L.W.524, Mr. Justice Ramapra-sada Rao (as he then was) interpreting the word building and the word constructed observed as follows:

"The word building and the word "constructed obviously refer to the building constructed by the landlord and not the superstructures to be constructed by the tenant after letting. I am unable to agree with the contention of learned counsel for the petitioners that the land on which the tenant has raised superstructures for his convenient enjoyment or otherwise ought also to be reckoned and evaluated for purpose of fixing the total cost referred to in section 4(3)(a) of the Act."

Hence the construction put up by the tenants have to be omitted from the cost of construction.

4. As regards the depreciation, the Rent Controller allowed one-and-a-half per cent depreciation. It is an admitted position that the building is not having teak would throughout. Depreciation as per the rates of the depreciation mentioned in Schedule 2 cannot be one per cent since one per cent depreciation calculation will enure to the buildings built in lime mortar and in which teak has been used throughout. The second type of buildings for which one-and-a-half per cent depreciation is allowable are buildings built partly of brick in