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TMI Blog2008 (12) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... the fair rent to ₹ 53,190/-. Aggrieved by the said decision, the tenant has come up with the present civil revision petitions. 3. I have heard Mr. T.V.Ramanujun, learned Senior Counsel for the petitioner/tenant and Mr. S. Parthasarathy, learned Senior Counsel for the respondent/landlord. 4. At the outset, Mr. T.V. Ramanujun, learned Senior Counsel appearing for the petitioner/tenant, raised the question of maintainability of the proceedings under the Rent Control Act, on the ground that the respondent/landlord is a Public Charitable Institution, whose buildings are exempt from the purview of the Act, by virtue of a notification G.O.Ms. No. 2000, Home, dated 16-8-1976 issued in exercise of the power conferred under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The contention that the respondent is a Public Charitable Trust exempt from the purview of the Act, was raised by the petitioner/tenant even before the Rent Controller, but the same was negatived by the Courts below. Therefore the learned Senior Counsel contended that the orders of both the Courts below in this regard are perverse and liable to be set aside. 5. The respondent is adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Mr. T.V. Ramanujun, learned Senior Counsel for the petitioner relied upon certain passages from the book of B.K Mukherjea on The Hindu Law of Religious and Charitable Trusts (fifth edition by A.C. Sen), which read as follows: 2.14. Prevention of cruelty as charitable purpose. -- Prevention for cruelty to animals, if the animals are useful to man, would be regarded as a charitable purpose. In the case of University of London v. Yarrow (1857) De G. J. 72, there was a bequest for establishing an institution for investigating, studying and curing maladies, distempers and injuries to which quadrupeds and birds useful to man might be found subject, and the bequest was held to create a valid charitable trust. Prevention of cruelty to animals whether domestic or not has itself been regarded as a charitable object. Thus, gifts to a society for promoting prosecutions for cruelty to animals whether domestic or not has itself been regarded as a charitable object. Thus, gifts to a society for promoting prosecutions for cruelty to animals {Re Doughlas, 35 Ch. D. 472} or for founding an antivivisection society {Re Foveaux, (1895) 2 Ch. 501} have been held to be charitable. In re Foveaux, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioners referred to above. Prevention of cruelty to animals might have the result of developing the finer side of man and, in that sense, might lead to advancement of public morals. In the House of Lords case cited above, such benefit was held to be far out-weighed by suppression of vivisection which was beneficial to human beings. When, however, no such question is involved, any trust for relieving the sufferings of old or maimed animals would be a good charitable trust. In re Moss, Hobrough v. Harvey (1949) All ER 495, the question arose as to the validity of a disposition for the welfare of cats. A testatrix directed by her will that her lease-hold house should be sold and one-half of the proceeds of sale be given to a certain person for her to use at her discretion for her work for the welfare of cats and kittens needing care and attention. It was held that the gifts were valid inasmuch as they were calculated to develop the finer side of human nature, of which care for old and sick animals was a manifestation and therefore were for the benefit of mankind. 8. Mr. T.V. Ramanujun, learned Senior Counsel for the petitioner also relied upon the following decisions, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the object of doing charities to beneficiaries, by providing free education and assistance to handicapped and economically down trodden people. 9. In response to the above, Mr. S. Parthasarathy, learned Senior Counsel for the respondent submitted that a Society registered under the Societies Registration Act, may not come within the meaning of the word Trust and that the law governing Trusts, need not necessarily apply to Societies. In support of his said contention, the learned Senior Counsel relied upon the following decisions: (i) S. Guhan, etc. v. Rukmini Devi Arundale, etc. 100 L.W. 182, wherein a Division Bench of our High Court set aside a scheme framed under Section 92 CPC, in respect of a Society registered under the Societies Registration Act, on the ground the plaintiffs failed to establish the constitution of a Trust and also omitted to implead such a Trust as a defendant in the proceedings. (ii) The Advocate General v. Bhartiya Adam Jati Sewak Sangh and Ors. 2002 (1) CCC 122 (H.P.), wherein a learned Judge of the Himachal Pradesh High Court held that in the absence of any pleading or evidence to show the creation of a Trust, either expressly or impliedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Control) Act, 1960, and the petitioner/tenant has taken a stand that the building of the respondent is exempt from the purview of the Act, by virtue of a Notification issued under Section 29 of the Act. Interestingly, in most of the decisions cited by the learned Senior Counsel on both sides, the Institution in question claimed the benefit of exemption either under the Income Tax Act or under the Rent Control Act and such claim was opposed either by the Revenue or by the tenant, as the case may be. But the case on hand presents a contrary situation. In other words, the person who is entitled to the benefit of the exemption, claims in this case that he is not entitled, but the person opposing him claims that he is. In view of this peculiar situation, we will have to get back to the provisions of the Rent Control Act and the nature of the exemption granted, so as to test the validity of the rival contentions. 13. As pointed out by a Division Bench of this Court in T.V. Angappan v. State of Tamil Nadu (2006)3MLJ1073 , the precursor to the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, was The Madras Buildings (Lease and Rent Control) Act, 1949. Section 13 of the 1949 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modation Control Act, 1961, in State of Madhya Pradesh v. Kanhaiyalal 1970 MPLJ 973 (SC). 14. After the enactment of the 1960 Act, there was an attempt to make a fresh challenge to the power of exemption conferred under Section 29, in S. Kandaswamy Chettiar v. State of Tamil Nadu [1985]2SCR398 . But, at the time of hearing of the writ petitions and appeals, the challenge to the validity of Section 29 was given up before the Supreme Court on the ground that the issue was no longer res integra in view of the decision of the Constitution Bench in P.J. Irani's case. However, the petitioners and the appellants before the Supreme Court, continued their challenge to the Notification G.O.Ms. No. 2000, Home Department, dated 16.8.1976, issued by the Government of Tamil Nadu in exercise of the power conferred under Section 29 of the 1960 Act. But a three Member Bench of the Supreme Court upheld the said Notification G.O.Ms. No. 2000, by their decision in S.Kandaswamy Chettiar's case. Similarly, a challenge was made, though unsuccessfully, to the exemption granted to buildings owned by Cooperative societies, in S.M. Mahendra Co v. State of Tamilnadu [1985]2SCR416 . 15. I am im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e site, a gross return of 9 per cent for residential buildings and 12 per cent for non-residential buildings which is very low as compared to the bank rate of interest and grossly inadequate when compared to the reasonable rents at the market rate obtaining in the locality or the neighbourhood (i.e., rent which a willing landlord will charge to a willing tenant) and it was a case of the tenants of all such buildings exploiting the situation arising from the beneficial provisions of the Act. In the supplementary counter-affidavit dated September 24, 1983, Shri N. Srinivasan, Deputy Secretary, Home Department, has categorically asserted that in all these cases the Government was satisfied that the rent paid by the tenants was very low, meagre and that the provisions of fixation of fair rent under the Act would not meet the ends of justice and the situation will still continue in which the tenant will be exploiting the situation and the helplessness of the public religious trusts and charitable institutions and that, therefore, the Government felt that it was necessary to withdraw the protection given under the Act to the tenants of such buildings. 11. It may be stated that no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act. 30. Exemption in the case of certain buildings - Nothing contained in this Act shall apply to - (i) any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned; or (ii) ...(struck down by Apex court) Explanation - For the purposes of Clause (ii), 'tenant' shall include - (a) a person to whom the tenant has transferred his rights under the lease with the written consent of the landlord; and (b) a sub-tenant in any case where the building or part thereof has been sub-let with the written consent of the landlord or where the lease confers a right to sub-let. (iii) any lease of a building under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other articles belonging to the landlord and situated in such building. Illustration (1): Where a dhall mill as such is the subject matter of the lease and where the intention of the tenant is to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Act, depending upon the notification. But the exemption under Section 30 is in respect of all the provisions of the Act, as seen from the phrase nothing contained in this Act shall apply. Therefore both exemptions cannot be treated on identical scales. 20. Apart from the two types of exemptions under Sections 29 and 30, the Act also speaks of applicability, per se, of the provisions of the Act. Under Section 1 (2) (a) (i), the Act is made applicable to the City of Madras, the City of Madurai and to all Municipalities, constituted under the Tamil Nadu District Municipalities Act, 1920. But the proviso to Section 1 (2) (a) (i) confers power upon the Government, to direct, by Notification that the Act shall cease to apply to any Municipality or to the City of Madras or to the City of Madurai. But under Section 1 (2) (a) (ii), the Government may, by Notification, apply the Act once again to such Municipality or City. 21. The applicability of the provisions of the Act, stand on a different footing than the exemptions contemplated under Sections 29 and 30. By its very nature and meaning, the word exemption presupposes the applicability of the Act, but for the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Act, the Supreme Court held in Lachoo Mal v. Radhye Shyam [1971]3SCR693 , as follows: The essential question that has to be resolved is whether Section 1-A was merely in the nature of an exemption in favour of the landlords with regard to the buildings constructed after January 1, 1951 and conferred a benefit on them which they could give up or waive by agreement or contractual arrangement and whether the consideration or object of such an agreement would not be lawful within the meaning of Section 23 of the Indian Contract Act. 6. The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 and 376). If there is any express prohibition against contracting out a statute in it then no question can arise of any one entering into a contract which is so prohibited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the landlord to waive the benefit conferred by the Act, as it was beneficial to him and was not opposed to public policy. Interestingly, the Supreme Court was dealing with Section 1-A of the U.P. Rent Act in the above case, which is similar to Section 30 (i) of Tamil Nadu Act. Thus even the benefit under Section 30 was held to be capable of being waived, in that case. 25. In the case on hand, the respondent/landlord was entitled to the benefit of the exemption under G.O.Ms. No. 2000, Home Department, dated 16.8.1976, issued under Section 29 of the Act, provided the respondent was an institution of public charitable nature. It is true that the objects of the respondent, such as protection of animals and promotion of vegetarianism may be of public charitable nature, in view of the decisions relied upon by Mr. T.V. Ramanujun, learned Senior Counsel for the petitioner. However no evidence was let in, on both sides, to show (i) that any property or fund was dedicated for public charitable purposes (ii) that the respondent was registered in terms of Section 12-A and was also availing the exemption under the Income Tax Act and (iii) that any obligation in the nature of a trust had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Courts below with regard to the extent of site. Therefore, the same is taken to be 1600 sq. ft. 27. In so far as the built-up area is concerned, the Engineer's Report filed by the landlord as Ex.P-2, shows that the built-up area in the ground floor (after deducting the portion open to sky) was taken as 1522.95 sq. ft., and the built-up area in the first floor was taken as 1265.135 sq. ft. The Engineer of the landlord adopted a rate of ₹ 370/- per sq. ft., for the construction in the ground floor and ₹ 344/- per sq. ft., for the construction in the first floor. 28. The Engineer examined on the side of the petitioner-tenant, took the built-up area in the ground floor as 1513.5 sq. ft., and adopted a rate of ₹ 349/- per sq. ft. He took the built-up area in the first floor to be 1250 sq. ft., with Madras terrace and 192 sq. ft., with asbestos sheet roofing and adopted a rate of ₹ 314/- per sq. ft., for the Madras terraced portion and ₹ 217/- per sq. ft., for the other portion. 29. The Rent Controller accepted the extent of built-up area as well as the rate of construction, as spelt out by the Engineer of the petitioner-tenant. The Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed just two years prior to the initiation of the present proceedings. The sale was made for a value of ₹ 2,53,500/-. Therefore the landlord's Engineer took the market value of the site as approximately around ₹ 3,200/- per sq. ft., in the year 2001 and arrived at the rate of ₹ 94,38,000/- per ground, after increasing the value in 2001 by 10% in 2002 and another 10% in 2003. 34. The tenant's Engineer took the value of the site at ₹ 10,95,435/- per ground, on the basis of a Sale Deed filed as Ex.R-9, in which the land of the extent of 964 sq. ft., was sold for ₹ 4,00,000/-, thereby indicating that the market value per ground was ₹ 9,85,850/- on the date of the Sale Deed and after allowing appreciation at 10%, the market value per ground would be ₹ 10,95,435/-. Though the Rent Controller fixed the market value of the land at ₹ 50,00,000/- per ground without any scientific basis, the Appellate Authority rejected Ex.R-9 on a rational basis. The Appellate Authority found that though Ex.R-9 Sale Deed was dated 10.2.2003, it came into existence after a checkered history. The parties to Ex.R-9 had an agreement of sale dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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