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CASE NO.: Appeal (civil) 1565  of  2001 Special Leave Petition (crl.)   7960     of  2000

PETITIONER: M/S.SHAW WALLACE & CO.  LTD.

       Vs.

RESPONDENT: GOVINDAS PURUSHOTHAMDAS & ANR.

DATE OF JUDGMENT:       27/02/2001

BENCH: S.V.Patil, D.P.Mohapatro

JUDGMENT:

D.P.Mohapatra,J. L.....I.........T.......T.......T.......T.......T.......T..J

     Leave  granted.   Whether the revisional  order  dated 24th  December,  1999 passed by the High Court of Madras  in C.R.P.No.2317  of  1996 suffers from any serious  illegality which  warrants  interference by this Court is the  question for  determination  in  this case.  M/s.Shaw Wallace  &  Co. Ltd.,  the  tenant in occupation of the premises, has  filed this  appeal assailing the aforementioned order of the  High Court.   The  proceeding  was initiated on  the  application filed  by  the landlords  Shri Govindas Purushothamdas  and Shri  Girdhari Govindas, respondents herein, for fixation of fair  rent of the premises under Section 4 of the Tamil Nadu Buildings  (Lease  and Rent Control) Act, 1960  (hereinafter referred  to as the Act).  The controversy in the  present proceeding  relates to inclusion of the area of 1752  sq.ft. (approximately) described as platform and henpen as a part of  the  building.   The Rent Controller and  the  Appellate Authority  excluded the said area and assessed the fair rent on  the  basis of plinth area of 4850 Sq.ft.  The fair  rent was  calculated  as Rs.22403/- per month.  In  the  revision petition  filed by the landlord under Section 25 of the Act, the  High  Court set aside the order of the trial  Court  as confirmed  by the Appellate Authority determined Rs.28,000/- in  place  of Rs.22,403/- per month as fair rent.  The  said order is under challenge in this appeal.  The main thrust of the  submissions  made  by  Dr.A.M.Singhvi,  learned  senior counsel  appearing for the appellant is that the High  Court erred  in  including  the henpen and platform  within  the plinth  area  of  the building.  According  to  the  learned counsel, those structures cannot be said to be a part of the building  and  cannot  be  utilised  as  such.   He  further contended  that  the High Court should not  have  interfered with  the concurrent findings of fact recorded by the  trial Court  and the Appellate Authority that the area covered  by the  henpen  and platform is not a part of  the  building. Per   contra,  Shri  T.L.V.Iyer,   learned  senior   counsel appearing  for the respondents, contended that in this  case

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the  High Court was justified in interfering with the  order of  the  trial  Court which was confirmed by  the  Appellate Court,  since the courts below had overlooked the  admission of the landlord in the pleadings that the plinth area of the structure  in occupation of the tenant is 6602 Sq.ft.   (not 4850  Sq.ft.).  Before proceeding to consider the merits  of the  contentions raised by learned counsel for the  parties, it  will be convenient to notice some provisions of the  Act which  are relevant for the case.  Section 2(2) of the  Act, which defines building reads as follows:

     2(2)  building means any building or hut or part of a  building  or  hut,  let  or  to  be  let  separately  for residential  or  non-residential purposes and includes-  (a) the  garden, grounds and out-houses, if any, appurtenant  to such  building, hut or part of such building or hut and  let or  to  be  let  along with such building or  hut,  (b)  any furniture  supplied by the landlord for use in such building or part of a building or hut, but does not include a room in a hotel or boarding house;.

     Section  4, which deals with the fixation of fair rent reads:   4.   Fixation  of fair rent.- (1)  The  Controller shall on application made by the tenant or the landlord of a building  and  after holding such enquiry as he thinks  fit, fix  the fair rent for such building in accordance with  the principles  set out in the following sub- sections.  (2) The fair  rent  for residential building shall be nine per  cent gross  return per annum on the total cost of such  building. (3)  The fair rent for any non-residential building shall be twelve  per cent gross return per annum on the total cost of such   building.   (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 anyone 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 upto  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.

     Provided  further  that  the   cost  of  provision  of amenities  specified in Schedule I shall not exceed  (i) in the case of any residential building, fifteen per cent;  and (ii)   in   the  case  of  any   non-residential   building, twenty-five  per  cent  of  the cost of site  in  which  the building is constructed, and the cost of construction of the building as determined under this section.

     (5)(a)  the  cost  of  construction  of  the  building including  cost  of  internal   water-supply,  sanitary  and electrical installations shall be determined with due regard to  the  rates adopted for the purpose of estimation by  the Public  Works  Department  of the Government  for  the  area concerned.   The Controller may, in appropriate cases, allow or  disallow  an  amount not exceeding thirty per  cent,  of construction  having regard to the nature of construction of the building.

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     (b)  The  Controller  shall deduct from  the  cost  of construction  determined  in the manner specified in  clause (a),  depreciation,  calculated  at the rates  specified  in Schedule II. [Emphasis supplied]

     The  other statutory provisions, which is relevant, is Section  25(1)  which  provides for a revision to  the  High Court.  The provision is quoted hereunder:

     25.   Revision.-  (1)  The  High Court  may,  on  the application  of  any  person aggrieved by an  order  of  the Appellate  Authority, call for and examine the record of the Appellate  Authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should  be  modified,  annulled, reversed  or  remitted  for reconsideration,  it may pass orders accordingly.ú [Emphasis supplied]

     Schedule  I in the Act enumerates the amenities within the  meaning of Section 4 of the Act.  From a plain  reading of  the statutory provisions quoted above, it is clear  that the  expression  building includes any building  with  the garden, grounds and out-houses appurtenant to such building, or  part  of such building let or to be let along with  such building.   In view of the expansive definition of the term, any structure which is part of the premises let out or to be let  out  comes  within  the purview  of  building.   This position becomes further clear on reading sub-section (4) of Section  4  wherein  it  is provided  that  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 anyone or more of the amenities  specified  in  Schedule  I  as  on  the  date  of application for fixation of fair rent.  In the first proviso to  the  sub- section (4) it is laid down 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 upto fifty per cent thereof the vacant  land,  if  any, appurtenant to  such  building,  the excess portion of the vacant land, being treated as amenity.

     Reading the two provisions together, it is clear to us that for the purpose of assessment of fair rent not only the area on which the building is constructed, but also the land appurtenant  to  it subject to the limit prescribed  in  the Statute and other structure appurtenant to the main building and  also  the amenities described in Schedule I of the  Act are all to be taken into account.  Therefore, the contention raised  by Dr.Singhvi that the platform and the henpen are not  to be included in calculating the area for the  purpose of  assessment  of fair rent, since it cannot be used  as  a building,  cannot  be  accepted having regard to  the  facts found  in the case.  The High Court, in our considered view, did  not  commit  any  illegality   in  including  the  said structures  within  the  plinth  area  for  the  purpose  of fixation of fair rent.

     Coming  to the question of revisional jurisdiction  of

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the  High Court under Section 25 of the Act, the  contention raised by Dr.Singhvi is that the limited jurisdiction vested in the said Sectin does not permit the High Court to disturb concurrent findings of fact recorded by the courts below.

     From  the  judgment/order  of  the High  Court  it  is manifest that the High Court felt inclined to interfere with the  orders passed by the Courts below mainly for the reason that the Courts below had ignored the specific averment made by  the  landlords in their pleadings that the total  plinth area  is 6602 Sq.ft.  which was admitted by the tenant to be true  in  para 12 of its counter affidavit.   The  question, therefore,  is the High Court not have the power to  disturb the  findings  of fact concurrently recorded by  the  Courts below in such circumstance?

     On  a  plain reading of Section 25 of the Act,  it  is clear  that  the revisional jurisdiction vested in the  High Court  under  that Section is wider than Section 115 of  the Code  of  Civil  Procedure.  The High Court is  entitled  to satisfy itself as to the regularity of the proceeding of the correctness,  legality or propriety of any decision or order passed  therein  and if, on examination, it appears  to  the High  Court  that  any  such decision  or  order  should  be modified,    annulled,    reversed     or    remitted    for reconsideration, it may pass such orders accordingly.

     In  the case of M.S.Zahed vs.  K.Raghavan reported  in [1999] 1 SCC 439, this Court, interpreting Section 50 of the Karnataka  Rent  Control Act, 1961 which is pari materia  to Section  25  of  the Tamil Nadu Buildings  (Lease  and  Rent Control)  Act,  1960,  held that it is within the  scope  of revisional  jurisdiction of the High Court to interfere with the findings of fact, illegally or incorrectly arrived at.

     In the present case, the trial Court and the Appellate Court  had not only ignored the admission of the landlord in the   pleadings  but  also   misread  and  misconstrued  the provisions of the Act.  In the circumstances, the High Court cannot   be   faulted  for   having  interfered   with   the judgments/orders  of the Courts below and modifying the fair rent   as  assessed  therein.    The  contention  raised  by Dr.Singhvi  questioning  the jurisdiction of the High  Court has also to be negatived.

     In  the  result, the appeal being devoid of merit,  is dismissed   with   costs.   Hearing   fee  is  assessed   at Rs.10,000/-.

     On  the prayer made by Dr.A.M.Singhvi, learned  senior counsel,  the appellant is granted one month time to pay the arrear  rent  due in compliance of the order passed  by  the High Court.                         IN THE SUPREME COURT OF INDIA

                       CIVIL   APPELLATE   JURSIDICTION

                       CIVIL  APPEAL  NO.  1874  OF  1992

District Magistrate, Allahabad & Anr.                   Appellants

                                           Versus

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Harminder Pal Singh & Anr.                                      Respondents

                               J  U  D  G  M  E  N  T

RAJENDRA BABU,  J. :

       A lease was granted for a piece of Nazul land bearing plot No. 8, Nashibpur, Baskhtiara, Allahabad to one Begum Mehdi Husain for a period of 30 years from August 21, 1940 with the provision of two further renewals of 30 years. In 1983 the Vice- Chairman, Allahabad Development Authority (ADA) sanctioned a plan subject to countersigning by the District Magistrate.  The lease was renewed on December 4, 1987 in the names of Smt. Jagjit Kaur Gulati, Shri Harminder Pal Singh, Shri Jitendra Singh, Smt. Bhulari Devi, Shri Rajendra Singh, Shri Pramod Kumar Agarwal and Nazir Faiyaz Khan.  By a letter dated January 22, 1987 all the District Magistrates in Uttar Pradesh were informed regarding construction of multi storey buildings on Nazul Land to the effect that the Government has no objection for building up multi storey building in the Nazul land as per the procedure prescribed by the Government in the order dated October 16, 1986 provided the balance lease period is more than 15 years and that as per the building construction laws, the construction of the proposed building is permissible.  It was also made clear therein that in case of sale of such flats, the real rent should be realised after proportionately distributing the rent between the flat owners.  Based on this Government order it is stated that the plan had been sanctioned by the Vice-Chairman, ADA.  When the District Magistrate did not countersign the said sanctioned plan, a writ petition was filed before the High Court.  The High Court directed the Vice-Chairman, ADA to release the sanctioned plan dated May 20, 1989 in favour of the respondents. This petition was contested both by the State and by the Vice-Chairman, ADA.  The stand of the appellants is that the respondents filed an application for a plan on March 10, 1989 for the construction of the multi storey residential complex which was sanctioned by the Vice-Chairman, ADA as communicated to them on May 24, 1989. It was stated that the plan could be released after countersignature was obtained from the District Magistrate. The District Magistrate did not countersign the sanctioned plan and when the matter was pending before him, another order dated November 10, 1989 had been issued which provided that before allowing residential construction of the group housing the premium and rent should be realised on commercial rates from the lessee and thus the respondents had to pay certain sum towards premium and annual rent at  certain rate. The High Court felt that the only objection raised on behalf of the District Magistrate is the payment of the premium and the rent as provided in the order dated November 10, 1989. The High Court examined the provisions of the lease deed and is of the opinion that the sanction of both the Collector and the Board was not essential and it was sufficient if the Board gave its approval and, in the present case, the Vice-Chairman, ADA had given such sanction. After analysing the relevant enactments,  it took the view that the powers of the Board stood transferred to different authorities and ultimately vested in the Development Authority and, therefore, the Vice-Chairman, ADA could grant sanction to the plan.   The High Court, therefore, rejected the contention raised on behalf of the appellants thereby allowing the writ petition.   Hence this appeal by special leave.

       The lease deed has been made available to us which has been executed on behalf of the Governor of the United Provinces on the one part and Begum Mehdi Husain on the other part to be effective for a period of 30 years from August 21, 1940 which has been renewed from time to time on certain terms of agreed rent.  The lease deed also provides as follows :-

AND ALSO will within twenty four calendar months next after the date of these presents at his expense and to the satisfaction of the Collector   for   the  time   being of                                           Board of Allahabad in a good substantial and workmanlike manner erect and complete on such parts of the said premises as are marked out on the plan hereto annexed a dwelling-house and out-buildings according to a plan and   elevation  to  be  approved by  such  Collector      which

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dwelling-house                                             Board and out-buildings shall be of the value of Rs. 5,000/- at least AND ALSO that no part of the external elevation or plan of such dwelling-house and out-buildings shall at any time be altered or varied from the original elevation or plan thereof without the written consent of such Collector and no other building  shall  be erected on                     Board the said premises without the like consent.

This lease deed had been granted for and on behalf of the Government is clear in terms of Article 299 of the Constitution and it is also clear by the communication No. 278/9- Nazul-87/485N/86  the Government had instructed all the District Magistrates as to the manner of construction of multi storey buildings also to be made on Nazul land, to which we have adverted to.  By letter dated  January 22, 1987 when that procedure had been prescribed and the lease itself is under the Nazul Rules framed pursuant to the executive orders of the Government, we fail to understand as to how any other procedure is required in matters of this nature.  The argument that the permission of the Collector or the Board is required in spite of orders made by the Government dated January 22, 1987 is untenable.  Under the terms of the orders of the Government all the District Magistrates are bound to act and permit the construction on such land.  Such buildings can be constructed under the Building Construction Laws.  Under the Uttar Pradesh Urban Planning and Development Act, 1973, the development can take place in terms of Section 14 of the Urban Planning and Development Act, 1973 and whenever any development takes place, sanction of the Development Authority is required. Thus the construction had to be made only under the Building Construction Laws as stated in the Government order and there is no other requirement to be complied with.  Therefore, it is unnecessary to engage our attention to the argument advanced on behalf of the appellants that the sanction of the Collector as well as the Board is required in a matter of this nature.   Apa rt from the ambiguity arising on account of non-striking off of irrelevant portions in the lease deed, the Government order makes it clear the manner of construction of multi storey buildings on Nazul Land, the same can be complied with.  If that is so, the District Magistrates or the Collectors permission though required, it will have to be in terms of the Government order dated January 22, 1987. Thus the later order issued on November 10, 1989 had no application to the case since sanction had been given to the plan by the Vice-Chairman, ADA on May 24, 1989.  Thus the view taken by the High Court is unexceptionable and calls for no interference.

       Therefore, we dismiss this appeal.

                                               ..J.                                                 [ S. RAJENDRA BABU ]

                                               ..J.                                                 [ SHIVARAJ V. PATIL ] NEW DELHI, MARCH 2, 2001. 1

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