Cost of construction of building as on the date of application necessary.

These two revisions arise out of the common order of the Principal Subordinate Judge, Madurai and Appellate Authority under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as the Act, in R.C.A.Nos. 109 and 113 of 1982 confirming the order of the District Munsif and House Rent Controller, Madurai in R.C.O.P.No.639 of 1979 fixing fair rent for the petition-mentioned non-residential premises. The tenant-appellant in R.C.A.No.109 of 1982 is the revision petitioner in C.R.P.No.2086 of 1983, while the landlords-appellants in R.C.A.No.113 of 1982 are the revision petitioners in C.R.P.No.3253 of 1983.

2. The landlords who are the revision petitioners in C.R.P.No.3253 of 1983, filed the above application in R.C.O.P.No.639 of 1979 for fixation of fair rent for the petition mentioned non-residential premises bearing door No.12, Mahal Second St., Madurai which had been leased to the tenant, who is the revision petitioner in C.R.P.No.2086 of 1983, on a monthly rental of Rs.420. The Rent Controller fixed the fair rent at Rs.1,510 per month. Against the said order the tenant preferred R.C.A.No.109 of 1982, while the landlords preferred R.C.A.No.113 of 1982. By its common order the Appellate Authority dismissed both the appeals and confirmed the fair rent fixed by the Rent Controller. Hence these revisions.

3. Under section 4(3) of the Act, the fair rent for any non-residential premises shall be twelve per cent, gross return per annum on the total cost of such buildings. Sub-section (4) of section 4 lays down that the total cost shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent. In calculating the market value of the site, only that portion of the site on which -the building is constructed and of a portion upto fifty per cent thereof of the vacant land, if any, appurtenant to such building shall be taken into account. The cost of provision of amenities specified in Schedule 1 shall not exceed in the case of any non-residential building 25 per cent of the cost of the site and the cost of construction of the building shall be determined with regard to the rates adopted for the purpose of estimatic . by the Public Works Department of the Government for the areas concerned. In appropriate cases, the amount not exceeding 30 per cent of the cost of construction can be allowed having regard to the nature of the construction. From the cost of construction determined in the manner specified above depreciation has to be worked out as per the rates specified in Schedule II.

4. A Commissioner has been appointed by the Rent Controller and on the basis of his report the area of the site, the area of the building and the nature of the building have been fixed by the Rent Controller.

5. Let me first deal with the marked value of the site. The learned Rent Controller has arrived at the area of the site of the building plus the first floor portion of the garage at 3297-75 plus 123-25 i.e. 3421 sq.ft. as the area of the’ site. This calculation is not challenged before me by both the parties. Now, to the question of the value of the site. According to the landlords, the value of the site will be at Rs.50 per sq.ft. This is the guideline maintained in the office of the Sub-Registrar as seen from the evidence of P.W.2. According to the tenant, the market value of the site will only be between Rs. 10 and Rs.12 per sq.ft. Ex.B-1 and B-5 are the deeds of sale in respect, of this property which are of the year 1977. Under Exs.B-1 and B-5 the value of the site alone works out Rs.20 per sq.ft. According to the landlords this was a distress sale as the vendors were highly indebted and were anxious to sell the property and hence that value cannot be taken into consideration. However, the sales were of the year 19