H.C. Lodha vs Dr. C. Ranganathan and Others

There are six revisions arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of, 1960, hereinafter referred to as the Act,

These revisions were heard by learned single Judge of this Court. In C.R.Ps. 382, 383 and 4305 of 1981, Sengottuvelan, J. felt a difficulty with

regard to arriving at the market value of the site, in which the building is constructed for determining the fair rent for the building. The learned Judge

referred the matter to a Division Bench. The Division Bench which heard the said three revisions on reference, found that of the pronouncements of

two learned single Judges of this Court one of Ratnam, J. in Chelladurai alias V.N. Veeman Pillai and Another Vs. Paramanand Jindal, and the

other of Sathiadev, J. in P.M. Shams Unnissa Begum Vs. C.K. Nanjiah, taking different views, a Division Bench in K. Kaliammal and Others Vs.

Athi V. Ramachandran and Others, accepted the view of Sathiadev, J. in P.M. Shams Unnissa Begum Vs. C.K. Nanjiah, Overruling the view of

Ratnam, J. in Chelladurai alias V.N. Veeman Pillai and Another Vs. Paramanand Jindal, and opining that the decision of the said Bench requires

reconsideration, referred the matter to a Full Bench. The order of reference dated 10-11-l983, reads as follows : --

A construction of the proviso to Clause (4) of Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is involved in these

civil revision petitions. Clause (4) and the first proviso thereto which are only relevant read as follows-

''4(4) The total cost referred to in Sub-section (2) and Sub-section (3) 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 :

Provided that, while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that

portion of the site on which the building is constructed and of a portion up to fifty per cent, thereof of the vacant land if any, appurtenant to such

building, the excess portion of the vacant land being treated as amenity.'' In construing the phrase ''and a portion up to fifty per cent thereof of the

vacant land, if any appurtenant to such building Sathiadev, J. in P.M. Shams Unnissa Begum Vs. C.K. Nanjiah, held that ''fifty per cent thereof

means fifty per cent of the vacant land appurtenant to the building, and not fifty per cent of the site on which the building is constructed out of the

vacant site appurtenant to the building. However, in the decision in Chelladurai alias V.N. Veeman Pillai and Another Vs. Paramanand Jindal,

Ratnam, J, took a different view and held that out of the vacant site available, up to 50 per cent of the area on which the building is constructed has

to be included as site of the building. Since a diametrically opposite view was taken in these two cases, the matter came up before a Bench on a

reference by Mohan, J. The Division Bench in K. Kaliammal and Others Vs. Athi V. Ramachandran and Others, approved the view of Sathiadev,

J. However, we find that the Bench had not given due importance to the latter portion of the proviso the excess portion of the vacant land being

treated as amenity. If really fifty per cent of the vacant land without reference to the area on which the building is constructed has to be taken into

account for the purpose of the valuation of the site, it could have been easily provided that fifty per cent of the vacant site appurtenant to the

building is to be taken into account in calculating the market value of the site in which the building is constructed and the remaining fifty per cent is

to be treated as amenity. The words of a portion up to would also be otiose if fifty per cent of the vacant site was intended to be taken into

account. We consider that the Bench decision requires reconsideration.

Yet, another question arises for consideration in this batch of civil revision petitions. Whatever be the interpretation of the proviso to Section

4(4) of the Act, that will have to be applied where the building is occupied by different tenants floorwise, Balasubrahmanyan, J. in Kores India

Limited Public Limited Company Vs. Dinesh Mothilal, held that for each of the floors, the same construction will have to be applied and it could

not be further sub-divided on the basis that the occupation was by different tenants of different floors of the building. This construction of

Balasubrahmanyan, J. was not accepted by Sengottuvelan, J. and that is how the matter was referred to us. Since we are referring the other

question which arises for consideration to be considered by a Full Bench, we think it desirable that this question is also considered by the Full

Bench.

According, we place the entire matter for consideration by a Full Bench. The papers may be placed before my Lord, the Chief Justice, for being

posted before a Full Bench.

That is how the said three revisions are before us. We will presently refer to the scope and amplitude of the question that require consideration by

us pursuant to the order of reference. C.R.P. 1704 and 1705 of 1982 and C.R.P. 3878 of 1983 were taken up by K.M. Natarajan, J. and the

learned Judge, facing the same questions that stood referred in C.R.Ps. 382, 383 and 4305 of 1981, without going into the other points in these

three revisions also referred the matters to the Pull Bench to be taken up along with the earlier revision and they are now before us.

The controversy in these matters relates to the arriving at the market value of the site in which the building is constructed, as per the first proviso

to Sub-section (4) of Section 4 of the Act, which proviso reads as follows-

Provided that while calculating the market value of the site in which the building is constructed, the Controller shall lake into account only that

portion of the site on which the building it constructed and of a portion up to fifty per cent thereof of the vacant land, if any, appurtenant to such

building the excess portion of the vacant land being treated as amenity.

So far as the first part of the proviso, when it , speaks about the portion of the she on which the building is constructed, is concerned, no difficulty

has been experienced and we are not called upon to go into that aspect. The controversy centres around the latter part of , the proviso, when it

speaks about ''and of a portion up to fifty per cent thereof of the vacant land, if any, appurtenant to such building the excess portion of the land

being treated as amenity.

Ratnam, J. in Chelladurai alias V.N. Veeman Pillai and Another Vs. Paramanand Jindal, was of the view : --

This proviso enacts an artificial rule to fix the market value of the site in which the building is constructed. For that purpose the Controller should

take into account that portion of the site on which the building is constructed and a portion up to 50 per cent thereof the vacant land, if any,

appurtenant to such building. The effect of this proviso is , that in order to arrive at the market value of the site in which the building is constructed,

it is not only the actual area over which the building is constructed that should be taken into account, but also a portion up to 50 per cent thereof of

the vacant land. The use of the word ''thereof is not without significance and it means ''of that'' or ''from that.'' It is rather unfortunate that the

language employed in the proviso is not very happy, nay it is inelegant, but the intendment of the proviso is that while enacting an artificial rule for

the purpose of fixing extent of the site whose market value has to be ascertained to be included in the total cost of construction, it further imposes,

a ceiling, as it were, on that extent which would go to make up the site whose ex market value has to be ascertained. In other words, the market

value of the site to be ascertained for purposes of including it in the cost of construction is not only the actual site over which the building is

constructed, but something additional or extra limited to 50 per cent thereof. The proviso simply means this. The actual area of the site over which

the construction has been put up has to be first determined. Prom the total area of the site, the area of the site over which the building has been put

up has to be deducted and the balance, if any, will be the vacant land. If the area of the vacant land thus arrived at is equal to or less than 50 per

cent of the area of the site over which the construction has been put up has to be first determined. If the area of the vacant land thus arrived at is

equal to or less than 50 per cent of the area of the site over which the construction has been put up, such extent of vacant land has to be added on

to the area of the site occupied by the construction and the market value of the site will be the market value of that area. If, however, the vacant

land is in excess of 50 per cent of the area over which the construction has been put up, then, the extent to be added to the area of the site

occupied by the construction will be only 50 per cent of that area and no more and the market value of the site will be the market value of that

area. In the latter case, the vacant land remaining after so adding 50 per cent of the area of the site over which the construction has been put up to

the area of the site occupied by the construction, is treated as an excess portion and amenity. In other words, such excess is not taken into account

as site for the purpose of ascertaining the market value, but treated as an amenity.

In contrast, Sathiadev, J. in P.M. Shams Unnissa Begum Vs. C.K. Nanjiah, took the view as follows : -- ""But it will be seen that the pivotal

expression in the proviso is the word thereof of the vacant land. In Chamber''s Dictionary 20th Edn. the meaning for the word ''thereof is ''of that'',

from that''. Hence, by substituting the meaning, the relevant portion will read as a portion up to 50 per cent from that of the vacant land on a

portion up to 50 per cent of that of the vacant land''. In view of what has been pointed out, the intendment is to take into account 50 per cent from

that of the vacant land to be treated as part of the site over which the building is constructed, and the other 50 per cent of the vacant land to be

treated as a amenity, and its cost should be worked out under Schedule I of the Act.

The above view of Sathiadev, J. has been approved by the Division Bench in K. Kaliammal and Others Vs. Athi V. Ramachandran and Others,

and the Division Bench did not accept the view of Ratnam, J. the Division Bench in K. Kaliammal and Others Vs. Athi V. Ramachandran and

Others, expressed the reason for approving the view of Sathiadev, J. in preference to that of Ratnam, J. in the following terms :

On a careful reading of Section 4(4) of the Act, and the first proviso thereof, we are unable to agree with the construction sought to be placed on

the first proviso to Sub-section (4) of Section 4 by the learned counsel for the tenants. When Section 4(4) of the Act states that the total cost of

the building referred to in Sub-section (2) and Sub-section (3) shall consist among others of the market value of the site in which the building is

constructed the Legislature must be deemed to have used the word ''site'' not with reference to the actual area on which the building is constructed

but with reference to the actual area on which the building is constructed and also vacant land if any around. The proviso also therefore deals with

the calculation of the market value of the site in that sense. So far as the proviso speaks of the portion of the site on which the building is

constructed there is no difficulty in construction. In this connection, however, we have to take note of the difference in language used both in Sub-

section (4) to Section 4 and the proviso viz., the market value of the site on which the building is constructed and that portion of the site in which

the building is constructed as found in the proviso. It is therefore clear that the Legislature has used the word site'' in the main Section 4(4) as

including not only the actual area on which the superstructure stands, but also the vacant land if any around the superstructure. Viewed in this light,

the words of a portion up to fifty per cent thereof of the vacant land if any appurtenant to such building can only mean 50 per cent of the vacant

land of the site excluding the site on which the building is constructed. This conclusion is further fortified by the fact that the Legislature has used a

comma, after the words ''of a portion up to fifty per cent''. Therefore, the 50 per cent referred in the proviso can only refer to 50 per cent of the

vacant land as contrasted with that portion of the site on which the building is constructed. The word ''thereof has the meaning of ''of that'' ''from

that (vide Chamber''s Dictionary revised edition). If these words are substituted for the word ""thereof and the proviso is read it will be clear that

the 50 per cent is only to be taken from that of the vacant land or out of the vacant land. In fact both the learned Judges,'' Sathiadev, J. and

Ratnam, J. have taken into account the above dictionary meaning of the word thereof. If we place an interpretation on the proviso as contended for

by the learned counsel for the tenants it will result in anomaly. Let us consider a case where the actual area on which the building stands is 1000 sq.

ft. and the available vacant land is 490 sq. ft. The total area to be taken into account for the purpose of arriving at the market value of the site in

which the building is constructed, according to the interpretation of the counsel for the tenants. will be 1000 sq. ft. i.e., 1500 sq. ft. on the other

hand if the construction that is sought to be placed by the learned Advocate General is accepted, the area for the purpose of calculating the market

value of the site in which the building is constructed will be 1245 sq. ft. which will be more favourable for the tenant. But supposing the area on

which the building is constructed is only 1000 sq. ft. and the area of the vacant land is 2000 sq. ft. then the actual area for the purpose of

calculating the market value, on the basis of the contention advanced by the counsel for the tenants, will be 1500 sq. Ft. In such a case, whatever,

be the area of the vacant land, i.e. whether it is 490 sq. ft. or 2000 sq. ft. the area of the site for the purpose of calculating the market value will

always remain at 1500 sq. ft. That would not have been the intention of the Legislature. We are, therefore, of the view that the construction placed

by Sathiadev, J. on the proviso to Section 4(4) of the Act is correct. We are unable to agree with the construction "" placed on the said Sub-section

by Ratnam, J. We therefore hold that the computation of the market value of the site under the proviso to Sub-section (4) of Section 4 of the Act

should be as follows-- The value of the site shall be the sum of tO the actual area on which the building is constructed, (2) 50 per cent of the

vacant land. The other 50 per cent of the vacant land will be treated as an amenity. We therefore uphold the decision of Sathiadev, J. in P.M.

Shams Unnissa Begum Vs. C.K. Nanjiah, and overrule the decision of Ratnam, J. in Chelladurai alias V.N. Veeman Pillai and Another Vs.

Paramanand Jindal, .

We propse to go by the primary rule that the plain language of the provision must provide the first and the foremost guidance. The first and most

elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation arc used in their technical meaning, if

they have acquired one and otherwise in their ordinary meaning and the second is that the phrases and sentences are to be construed according to

the rules of grammer. It must also be remembered that statutory language is not to be read in isolation but always in its context. Though dictionary

meanings may provide assistance, to find out the ordinary sense of the words, individual words are not to be considered in isolation, but their

meaning to be ascertained in the context in which they occur. On going through the proviso, extracted above, we find that after setting forth that the

market value of that portion of the site on which the building is constructed, shall be taken into account, it has been further provided that the market

value of a portion up to fifty per cent thereof of the vacant land if any appurtenant to such building should be taken into account for calculating the

market value of the site, the excess portion of the vacant and being treated as amenity. The set of expressions ''and of a portion up to fifty per cent

thereof cannot be read disjointedly and has got to be read conjointly along with the set of expressions preceding it. The expressions and of a

portion of fifty percent thereof would have reference only to that portion of the site on which the building is constructed. The formula to be applied,

which is plain to our mind, is that an extent up to fifty per cent of the site on which the building, is constructed,, has got to be carved out of the

vacant land, if any, appurtenant to such building and the market value of that fifty per cent must be added on to the market value of that portion of

the site on which the building is constructed, and the rest of the portion of the vacant land has got to be treated as amenity. Reading the proviso as

a whole, it is not possible to loose sight of the context in which the expression ''up to fifty per cent thereof occur and ''up to fifty per cent thereof

could have reference only to ''that portion of the site on which the building is constructed. The language of the proviso being plain, we cannot read

it in any other manner, which, if done, in our view, would be a stilted one. The expressions have got to-be read in the context in which they occur

and conjointly with the preceding expressions. The expressions form a measure, applying which the vacant land if any, appurtenant to such building

has got to be carved out and added on to the built up extent. The Division Bench in K. Kaliammal and Others Vs. Athi V. Ramachandran and

Others, apprehends a resultant anomaly, if the construction which we have now approved, is to be adopted. The Division Bench has lost sight of

the significance of the expressions ''up to fifty per cent'' and ''of the vacant land, if any, appurtenant to'' occurring in the proviso. An area ''up to fifty

per cent'' of the extent or portion of the site on which the building is constructed, has to be carved out of the vacant land if any appurtenant to such

building. Only if there is any vacant land, appurtenant to such building, the application of this formula would arise. If there is no, vacant land

appurtenant to such building, the contingency to apply this formula would not arise at all. If there is any vacant land appurtenant to such building but

its extent is equal to or less than the built up extent, the same will have to be annexed to the built up extent, to form the aggregate basis for arriving

at the market value of the site. If there is any vacant land, appurtenant to such building, and its extent is in excess of the built up extent, carving out

of it fifty per cent of the built up extent, to be added to the built up extent, for calculating the market value of the site, the residue of I the vacant

land has to be treated as amenity.

The Division Bench in Kaliammal v. Athi V. Ramachandran (1983) 2 Mad U 252 also speaks about construction favourable for the tenant. Fair

rent is fixed for the building, as defined in the Act, rent, fair, either to the landlord or to the tenant is not being fixed. Fair rent has got to be

ascertained as per the formula and procedure; specified and prescribed in the Act, and no element of fairness either to the landlord or to the tenant,

need be imported to form an obsession in the mind of the forums determining the fair rent. Hence, our Construction of the proviso to Sub-section

(4) of Section 4 of the Act is in tune with the construction put up by Ratnam, J. in Chelladurai v. Paramanand Jindal (1982) 2 MLJ 441 and we

approve the same, and we cannot lend our support to the view taken by the Division Bench in Kaliammal v. Athi V. Ramachandran (1983) 2 Mad

252 which has approved the view of Sathiadev, J. in P.M. Shams Unnissa Begum Vs. C.K. Nanjiah, . Hence, we answer this question as above.

7-8. The other question, which has found warrant for reference to a Full Bench by the Division Bench in the order of reference relates to a case of

an apportionment, where the building is occupied by different tenants floorwise. The definition of ''building'' found in Sub-section (2) of Section 2

of the Act is an inclusive one. Clause (a) speaks about garden. grounds and out houses, if any, appurtenant to such building and let or to be let

along with such building. If any land appurtenant to such building is let or to be let along with the building, one has to find out the scope of the terms

and conditions of such building. The real test would be how one party intended to give and how the other party intended to take the demise and

the subject-matter of the demise. If there is a demise, of any land appurtenant to building, certainly the test, as countenanced by us, while

answering the first question, will have to be applied. If there is no demise of any land, appurtenant to building, then there is no question of applying

the test. We do not want to visualise all the contingencies that would arise, where the building is occupied by different tenants floorwise or

otherwise. How the demise took place in respect of the tenants or each of the tenants and what are the terms and conditions of such demise will be

the guiding factor for application of the test. Balasubrahmanyan, J. in Kores India Limited Public Limited Company Vs. Dinesh Mothilal, opined

that for each for the floors the same construction will have to be applied and it could not be further sub-divided on the basis that the occupation

was by different tenants of different floors of the building. This is a rigid rule and there is no warrant to apply the same irrespective of the intention

of the parties while the demise has been effected with regard to the land, appurtenant to building and the terms and conditions governing the same.

The facts of each case will have to he taken note of for applying the test laid down by us. We answer the second question as we have done above.

The factual aspects of the cases have not yet been thrashed out and resolved before the learned single Judges, who heard the revisions, and the

revisions require disposal on merits.

Now we have answered the question referred to us, the revisions will have to go before a learned single Judge for being dealt with by him on

the merits of each case. Reference is answered accordingly. We make no order as to costs, Expedite the revisions.