IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.12.2009 Coram THE HONOURABLE MR.JUSTICE M.JEYAPAUL S.A.No.193 of 1998 P.S.Venkatrajan ..Appellant/Appellant/ Plaintiff Vs. C.Devan ..Respondent/Respondent/ Defendant Second Appeal filed under Section 100 of Civil Procedure Code of second appeal against the Judgment and Decree dated 27.08.1997 made in A.S.No.11 of 1997 on the file of the Subordinate Judge's Court, Tirupathur, Vellore District confirming the Judgment and Decree dated 23.09.1996 made in O.S.No.1607 of 1993 on the file of the District Munsif Court, Tirupathur, Vellore District. For Appellant : Mr.S.Parthasarathy For Respondent : Mr.G.Vasudevan JUDGMENT The unsuccessful plaintiff before both the Courts below, is the appellant herein. 2. The plaintiff filed a suit for recovery of possession from the defendant, who is admittedly the tenant under him. 3. The plaintiff having contended that the defendant, who was the tenant under the vendor of the plaintiff vacated the suit property enabling the plaintiff to put up a new construction and thereafter occupied the suit property on completion of the new construction, as on 14.04.1991 laid the suit for the aforesaid relief, after issuing statutory notice to the defendant to vacate the premises. 4. The defendant resisted the claim of the plaintiff on the ground that he was entitled to the benefits of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. Having admitted that a new construction was put up by the plaintiff and he was inducted into half of the ground floor measuring 54" feet X 11-1/2" feet under the https://hcservices.ecourts.gov.in/hcservices/ rent deed dated 14.04.1991, the defendant contended that his established business would be ruined if he vacated from the suit premises. 5. The Trial Court having framed seven issues, based on the rival pleadings of the parties, took up the first issue as to whether the defendant was entitled to the benefits of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, on the basis of the request emanated from both the parties and decided the same in favour of the defendant. 6. There was no oral evidence let in on either side, but on the side of the plaintiff eight documents were marked before the Trial Court. 7. The Trial Court adverting to the provisions Under Section 30(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 has held that inasmuch as the plaintiff failed to notify to the local authority concerned about the completion of construction of the building, the plaintiff cannot seek exemption from the application of the aforesaid Act. 8. The First Appellate Court having marked two additional documents as Exs.A9 and A10, the sanctioned plan and the tax receipt respectively, confirmed the Judgment of the Trial Court with respect to the preliminary issue framed and answered by the Trial Court. 9. The following substantial question of law was formulated at the time of the admission of the second appeal. 1) Whether the Courts below are right in holding that the suit building is not exempted under 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, despite the admission of the defendant that the building is constructed in the year 1991, i.e. Within a span of five years, the suit has been filed. 10. The learned senior counsel appearing for the appellant/plaintiff would submit that just because the local authority was not notified of the completion of the construction of the building, the exemption granted Under Section 30 (i) cannot be taken away. It is his further submission that in the instant case, the defendant categorically admits that only in the year 1991, a new construction was put up by the plaintiff and immediately thereafter, he was inducted into possession of the property as per the rent deed dated 14.04.1991. The Courts below have failed to take into consideration the admitted position of the parties, he argues. https://hcservices.ecourts.gov.in/hcservices/ 11. Per Contra, the learned counsel appearing for the respondent/defendant would submit that Section 30(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 mandates that the new construction of the building should be notified to the local authority concerned. The period of five years cannot be calculated from the date of completion of the construction unless it was notified to the local authority to seek exemption Under Section 30(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. 12. Section 30 (i) reads as follows: 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] 13. The Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 would not apply to a new building for a period of 5 years from the date of such construction and notification to the local authority. 14. In order to establish without any pale of doubt that the building was newly constructed, it appears that the notification to the local authority concerned was insisted in the aforesaid provision of law. If the tenant admits in no uncertain terms that 5 years period had not lapsed from the date of the construction of the new building, it may not be necessary for the Court to verify as to whether the landlord intimated the local authority concerned as to the completion of construction. 15. In the instant case, the defendant categorically admits that the plaintiff, who purchased the suit property from one Saraswathi Ammal on 05.02.1990 put up a new construction in the new property and let out half of the ground floor portion to the defendant as per the rent deed dated 14.04.1991. The suit was filed by the plaintiff on 11.11.1993. Therefore, admittedly the new construction of the schedule mentioned building was made only in the year 1990-91. The suit has been filed within 5 years from the date of completion of the construction of the suit building. It is not the case of the defendant that the suit building was let out him when the construction was in the half way. 16. To fortify the plea of the plaintiff, the plaintiff filed an approved plan Ex.A9 and the tax receipt Ex.A10 during the course of hearing the first appeal and established that he having constructed a new building invited the authorities concerned to assess the suit building to property tax. The Court will have to presume that the assessment was made by the authority concerned and https://hcservices.ecourts.gov.in/hcservices/ the tax was collected under Ex.A10 only on intimation given by the plaintiff to the local authority concerned. 17. Of course the Courts below have relied upon the decision reported in S.Ranganathan Vs. S.Venkatesan 1995 (1) MLJ 159 whereunder it has been observed that the landlord of the building who seeks exemption must prove that the building has been constructed within 5 years from the date of laying the suit. Exemption Under Section 30 (i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 would apply to a newly constructed building for a period of 5 years from the date on which the construction was completed and was also notified to the local authority concerned. Thus two conditions will have to be satisfied before seeking exemption by the landlord Under Section 30 (i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, it has been held therein. 18. In the instant case, two important aspects will have to be looked into. It is the admitted case of the defendant that 5 years had not lapsed from the date of completion of construction of the new building on the date of filing the suit. The suit building constructed by the plaintiff was also assessed to property tax under Ex.A10 as already pointed out by this Court. Unless the local authority was informed of the completion of new construction made by the plaintiff, the property would not have come under the purview of new assessment. 19. The aforesaid ratio laid down by this Court will not apply to a case where the tenant unambiguously admits that the new building has not completed 5 years on the date of filing the suit. The question of establishing the admitted position would not arise at all. The question whether the local authority was duly informed of the completion of construction pales into insignificance. Further I hold that once the plaintiff could establish with material evidence that the suit was filed within 5 years from the date of completion of the construction just because he failed to notify to the local authority, the plaintiff cannot be shut out from claiming exemption Under Section 30(i) of the Act. Notification to the local authority as to the new construction made by the landlord is insisted only to make sure that the exemption is sought for by him in a proven case of new building not older than 5 years from the date of completion of construction. Therefore, when it is admitted by the tenant that the building is less than 5 years old or the plaintiff could establish that the building is a new building less than 5 years old, the Court shall not insist upon proof of notification to the local authority of the completion construction. 20. In view of the above facts and circumstances, I find that the Courts below have wrongly applied the principles of law under the provisions of Section 30 (i) of the Tamil Nadu Buildings (Lease & https://hcservices.ecourts.gov.in/hcservices/ Rent Control) Act, 1960 and non suited the plaintiff on the preliminary issue itself. 21. Holding that the suit building is exempted as per Section 30(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, and as a result the defendant is not entitled to the benefits under the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. The Judgment of the Courts below are set aside and the appeal is allowed, directing the Trial Court to take up the case on a war footing, on a day to day basis as 16 years had already lapsed from the date of institution of the suit by the landlord and complete the trial of the case within two months from the date of receipt of material records from this Court. Both the parties shall appear before the Trial Court on 06.01.2010 for the hearing of the trial of the case. The Registry shall send back the material records to the Trial Court on or before 23.12.2009. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ps To 1. The Subordinate Judge's Court, Tirupathur, Vellore District 2. The District Munsif Court, Tirupathur, Vellore District. 3. The Section Officer, V.R. Section, High Court, Madras. + 1 c.c. to M/s. Sarvabhauman Associates. S.R.No.69700. S.A.No.193 of 1998 PUR (CO) GSK 21.12.2009. https://hcservices.ecourts.gov.in/hcservices/