1. This is an application under Article 226 of the Constitution for the issue of a writ of certorari to set aside the order of the Board of Revenue, dated 30th April, 1955, negativing the claims of the petitioners, preferred under Section 18(4) of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948) (hereinafter referred to as the Act).
2. The first petitioner was the landholder of the Uthumalai Zamindari, an impartible estate, which vested in the Government with effect from the notified date, 3rd January, 1951, under the provisions of the Act. He was the owner of the private market in Surandai, one of the villages included in the Zamindari estate. On the notified date the second petitioner was in possession of the market as a lessee under the first petitioner.
3. The market was located in the bazaar, a busy business centre of Surandai, and occupied an extent of about 1.33 acres. The whole area was enclosed by a substantially built masonry compound wall ranging from 7 to 8 ft. in height. Access to that enclosure was regulated by two gates. There were two masonry buildings adjacent to these gates, described as ticket offices, admittedly used for the management of the market. There were two masonry latrines without roofs for the use of those who came to the market. The petitioners claimed that there were 92 stalls in the market prior to 3rd January, 1951. The stalls themselves were not walled enclosures. One set of stalls had roofs of corrugated iron sheets resting on masonry pillars on platforms. Trie other sets of stalls had only thatched roof, resting on wooden posts. A photograph of the market was before the Board, and it was also produced before me when this petition was heard. In addition there were one or two tea stalls with tnatched roofs. There were 22 trees within the enclosure to afford shade to those who used the market.
4. After the notified date the Estate Manager took the view, that the first petitioner was entitled only to the superstructures and the land on which they stood measuring about 32 cents, and that the rest of the land vested in the Government and was outside the scope of Section 18 of the Act. The petitioners applied to the Collector to recover possession of the land, the claim to which was disallowed by the Estate Manager. Eventually, in exercise of the statutory powers under Section 18(6) delegated to it by the Government, the Board decided that the petitioners were not entitled to any portion of the market. The Board held that the private market in Surandai had been part of the impartible estate of Uthumalai, and that the market also vested in the Government along with the rest of the estate. With reference to the superstructures on the land the Board recorded:
Of the structures on this land only the two ticket sheds can be regarded as buildings in any reasonable sense of that word. The other structures have either no roof or no walls coming up to the roof and they cannot be said to be buildings within the meaning of Section 18 of the Abolition Act. The administration of this market was part of the administration of this estate before the notified date and the two ticket sheds were the offices used for selling tickets to the users of the market and were exclusively used for that purpose. They therefore vest in the Government under Section 18(1) of the Abolition Act from the notified date free of all encumbrance.
The first petitioner purported to assign some sites in the market to others after 3rd January, 1951. These assignees undertook structural alterations of the superstructures on the sites so assigned to them. The Board held that none of the assignees could claim any rights against the Government in whom the whole property had vested on 3rd January, 1951, itself. None of the assignees is a party to those proceedings, and I am not concerned with the rights of any of these assignees vis-a-vis the petitioners.
5. The claim of the petitioners was that the right to the entire market as a building vested in the first petitioner under Section 18(4) of the Act.
6. The relevant provisions of Section 18 of the Act are:
18 (1). Every building situated within the limits of an estate, which immediately before the notified date, belonged to any landholder thereof and was then being used by him as an office in connection with its administration and for no other purpose, shall vest in the Government, free of all encumbrances, with effect on and from the notified date....
(4) Every building other than a building referred to in Sub-sections (1), (2) and (3) shall, with effect on and from the notified date, vest in the person who owned it immediately before that date; but the Government shall be entitled for each fasli year commencing with the fasli year in which the estate is notified
(i) in every case, to levy the appropriate assessment thereon; and
(ii) in the case of a building which vests in a person other than a landholder, also to the payments which such person was liable immediately before the notified date to make to any landholder in respect thereof, whether periodically or not and whether by way of rent or otherwise, in so far as such payments, may accrue due on or after the notified date.
7. Section 18(5), which was meant to be explanatory, stated:
In this section ' building ' includes the site on which it stands and any adjacent premises occupied as appurtenance thereto.
8. The learned Advocate-General contended that the right which the first petitioner as the landholder had to the property used as a private market should be considered independent of Section 18 of the Act. The learned Advocate-General submitted that the right to conduct a private market was analogous to a franchise in English or American Law, and that it was incidental to the ownership of the estate to which the landholder was entitled, and which passed with the estate to the Government under Section 3 (b) of the Aci. The further submission of the learned Advocate-General was that when, on the abolition of the estate, the landnolder lost that right, he could not retain any right in the property with reference to which that right was exercised; the property in this case was the market but it was part of the estate.
9. Even in Ramunni Kurup v. Panchayat Board, Badagara (1954) 2 M.L.J. 101 : I.L.R. (1954) Mad. 513 to which the learned Advocate-General referred, Venkatarama Ayyar, J., pointed out that the concept of franchise as understood in the English law was never part of the law in India, and the learned Judge emphasised that the right to hold the market has been considered under the Indian law as an incident of the ownership of the land over which the market is held. Earlier in C.S.S. Motor Service v. State of Madras : AIR1953Mad96 Venkatarama Ayyar, J., had occasion to point out that the American concept of franchise was a development peculiar to that jurisprudence, and that has not been adopted in the Indian Constitution.
10. When the private market was commenced in Surandai is not clear, but it was common ground that it has been in existence from before 1889. Whether the private market was made part of the impartible estate of Uthumalai by any process of incorporation is not clear, I shall, however, assume for the present that there was such incorporation, and that the right to own and conduct a private market was incidental to the ownership of the impartible estate of Uthumalai. Even so, the question that remains to be considered is, whether that private market constitutes a building to which the provisions of Section 18 of the Act would apply. It should be remembered that it was only on the application of the provisions of Section 18 that the Board decided that the first petitioner was not entitled to any portion of the property which constituted the market. I am not called upon to decide whether, if the first petitioner was entitled to the market as a building under Section 18(4) of the Act, the first petitioner is further entitled to conduct a private market in those buildings. As pointed out in Ramunni Kurup v. Panchayat Board, Badagara (1954) 2 M.L.J. 101 : I.L.R. (1954) Mad. 513 the right to hold a market could be leased or assigned without alienating the land itself on which that private market is to be conducted. Thus the right to conduct the private market is one severable from the right to own and possess the site on which that right was exercised. The right to hold a private market is only one of the bundle of rignts that flow from the full ownership of the land on which the owner is entitled to conduct tae private market. Section i8of the Act, it should be remembered, is a specific statutory provision creating rights in buildings in an estate whicn is vested in tne Government under Section 3 (b) of the Act. That the right to hold a market should be viewed as incidental to the ownership of the impartible estate is really no answer to the question, does the property, in which the private market was conducted, constitute a building within the scope of Section 18 of the Act? The Board referred to the Kadathur case dealt which by a Division Bench of this Court in its unreported judgment in W.P. No. 381 of 1951. In that case the land-holders claimed a patta for the land on which they had been holding a private market under Section 12 of the Act. No question of applying the provisisions of Section 18 arose for consideration then. The learned Judges pointed out that the land along with the estate vested in the Government, and the right to hold the private market passed to the Government along with the land, the right to hold the market being one of the incidents of ownership of that piece of land.
11. The learned Advocate-General contended that the market franchise and the property itself in relation to which that franchise was exercised were annexed to the impartible estate of Uthumalai, and that both fell outside the scope of Section 18 and fell only within the scope of Section 3 (b) of the Act, even if the market contained buildings or the market constituted a building. The further submission was that no portion of the market could be viewed as a buidling within the scope of Section 18. With reference to the landholder, the learned Advocate-General submitted, that the scheme of the Act provided for buidlings which the landholder used for his purposes, and buildings which he reserved for the use of the administration of the estate, and the learned Advocate-General contended that the market fulfilled neither of these tests. I am unable to accept this contention. While the purpose for which a given piece of property was used would not conclude the question whether that property constituted a building, the purpose will certainly determine under which of the clauses, Clauses (1) to (4), the claim to that building should be considered. If, for example, the landholder had owned a building substantially built in which a a number of shops were permanently located, that would be a building, and the fact that it was not used either for residential or administrative purposes would not make it anytheless a building. I fail to see any difference between such a building and a set of buildings used as a private market.
12. As I said, I am unable to accept the contention of the learned Advocate-General, that the right to hold a market should be viewed as a franchise incidental to the ownership'of the impartible estate, and that when that right was lost, the right to the property in which that right had been exercised was also lost, even if that property constituted a building.
13. I shall next deal with the question, whether the private market at Surandai was a building within the scope of Section 18 of the Act.
14. What is a building has not been defined by the Act. It shoud be taken as well settled now that the expression building in Section 18 includes the land on which the building stands and also the land which could be legitimately viewed as appurtenant thereto. On the question, what constitutes a building, the case-law both Indian and English was elaborately reviewed in Irani v. Chidambaram Chettiar (1952) 2 M.L.J. 221. As pointed out by Raghava Rao, J., at page 234:. a word like building....must be understood in differensenses in different statutes and texts according to the purpose and object of the statute and the com text.
15. After pointing out that the word ' building' is a term of wide significance, the learned Judge said:
In the Concise Oxford Dictionary the word 'building' is annotated at page 144 of the Third Edition as equivalent to ' house, edifice' And 'edifice ' is, at page 363 annotated as equivalent to 'building' (especially a large one); In Baldwin's Edition (1928) of Bouvier's Law Dictionary at page 141 'building' is annotated as meaning ' an edifice erected by art and fixed upon or over the soil composed of stone, brick, marble or wood or other proper substance connected together and designed for use in the position in which it is so fixed.' This, it will be seen, is a very coinprchcnsive annotation which does not insist on a roof for the structure or on brick or stone, in its composition.
16. After stating that ' building ' is a more generic word than 'house', the learned Judge proceeded to observe at page 235:
Building in the etymological sense means ' anything built' and there is no reason why if that is the intendment of the legislature in connection with a particular enactment, compound walls with the space inside may not be regarded as a building.
17. In view of what has been stated above that the expression ' building ', in the absence of a statutory definition, has t o be construed with reference to the context of the particular enactment, I do not consider it necessary to embark again upon an examination of the case law considered in Irani v. Chidambaram Chettiar (1952) 2 M.L.J. 221 or upon an examination of the cases referred to at pages 204-205 in Volume III of Halsbury's Laws of England, Second Edition (Hailsham's).
18. In Volume I of Burrow's Words and Phrases judicially defined, at page 346, is a passage from the judgment of Byles, J., in Stevans v. Gourlay (1859) 7 C.B.N.S. 99:
What is a 'building' Now, the verb 'to build ' is often used in a wider sense than the subs-stantive 'building'. Thus, a ship or a barge-builder is said to build a ship or a barge, a coach-builder to build a carriage; so, birds are said to build nests; but neither of these when constructed can be called a ' building '....The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word ' building ' with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it. Without, therefore, presuming to do what others have failed to do, I may venture to suggest, that, by a 'building' is usually understood a structure of considerable size and intended to be permanent, or at least to endure for a considerable time....It seems to me that the structure in question, which was erected for a shop, and is of considerable dimensions, and intended for the use of human creatures, is clearly a ' building ' in the common and ordinary understanding of the word.
19. Thus what constitutes a building for purposes of Section 18 of the Act has to be gathered primarily from the scheme of that Act. Obviously Section 18 is not confined to residential buildings as Clauses (1) to (3) themselves of Section 18 make clear. Even with reference to a residential building, a hut, whether in a rural or urban area, with a thatched roof, would be a building, even if the walls of that hut had not come up to the roof. Glauses (4) and (5) of Section 18 secure for the owners rights in a building other than those that fall within the scope of Clauses (1) to (3). Clauses (4) and (5), it should be noticed, are not confined to dispossessed landholders but extend to others also who owned buildings in an estate before the notified date. The scheme of the Act was to substitute ryotwari tenure for zarqindari tenure for the cultivable lands. Special provision has to be made for land with superstructures thereon in view of the otherwise comprehensive provisions of Section 3, vesting everything in the estate in the Government with effect from the notified date. In deciding whethe a superstructure constituted a building, the purpose for which that superstructure was put up would be a relevant consideration, though, as I pointed out earlier, it may not be decisive. The land in this case with the superstructure thereon was used as a market. That the market contained only stalls, and that the stalls themselves were not walled enclosures with substantial roofs, will not make the stalls anytheless buildings. A market consisting only of stalls would be a building. That some of the stalls were in sheds with thatched roofs resting on wooden posts will not make them anytheless buildings. We have the familiar example of sheds being put up with thatched roof as part of school premises, the sheds themselves being used for classes. The Board was of the view, that the stalls with thatched roof were temporary. Apparently what the Board had in view was that these sheds were katcha constructions as opposed to pucca constructions like the ticket sheds. There were, it should be remembered, stalls with roof of corrugated iron sheets resting on stone pillars. They could not be viewed as temporary by any means. Nor, in the circumstances of this case, could the stalls under the thatched roofs be viewed as temporary. Both sets of stalls were there for use, all the time and in that sense they were not temporary. They were not for example temporary in the sense that they were put up for a few days in a year as in a fair or a festival and then dismantled. The stalls were there more or less as a permanent measure. Only they were not all of pucca construction. Where a greater degree of endurability was desired by the owner, as in the case of the ticket sheds, the latrines, and of course the compound wall, he went in for pucca masonry structures. If the fact, that the whole property was intended to be used and was in fact used as a market, 1 kept in view, a market situate in the midst of a busy bazaar, it should be clear that the superstructures, within the compound wall constituted buildings, independent of the pucca or katcha nature of the constructions. In my opinion, the whole property should be considered as one unit, and neither each set of stalls, nor each of the stalls in each of the block of buildings, in the market should be viewed as a separate building for the purposes of Section 18(4) of the Act. Itis not therefore a case of Section 18(5) of the Act applying at all to decide whether one building was appurtenant to another.
20. The next question is, whether the market or any portion thereof falls within the scope of Section 18(1), because, if it does, that would exclude the application of Section 18(4). The Board, it should be remembered, held that the two ticket sheds were buildings, and that they fell within the scope of Section 18(1). I have pointed out earlier that all the superstructures standing on the land enclosed by the compound wall should be viewed as one unit, constituting one building though they are in different blocks. Obviously it cannot be said that the whole of it was used for purposes of administration of the estate. No doubt, I have proceeded on the basis that the market belonged to the landholder and was an integral part of the estate. But it does not follow that a building used for conducting a market is a building used solely for the administration of the estate of which the market was a part. No doubt the ticket sheds were used for purposes of administering the affairs of the market. But that again is not enough to show that the ticket sheds were used for the administration of the estate as such. That would be the position, even if the two ticket sheds are viewed as separate buildings. But, as I have already pointed out, all the superstructures whether the constructions were pucca or katcha, should be viewed as a unit constituting a building within the meaning of Section 18(4) of the Act. The private market as such was not a building that fell within the scope of Section 18(1) and no portion of it either fell within the scope of Section 18(1). That the private market as a building belonged to the landholder before the notified date was never in issue. It fell within the ambit of Section 18(4), and it continued to vest in the landholder even after the notified date.
21. The learned Advocate-General next submitted that, even if Section 18(4) applied, this was not a case for the issue of a writ of certlorari, because the decision of the Board should at the worst be viewed as an erroneous decision : it would not constitute an error of law apparent on the face of the record, to justify the issue of a writ of certiorari. I am unable to accept this contention. When what is really a building factually and in law is treated as non est on what, in my opinion, was an erroneous interpretation of Section 18(4), it is an error of law, and that error is apparent on the face of the record, that is, the order of the Board. Once again I have to emphasise that the right to the building secured by Section 18(4) has to be viewed independent of the use to which that building had been put in the past, that is, it should be viewed independent of the right to conduct a private market in that building on and after the notified date. I have already pointed out that the decision in W.P. No. 381 of 1951 does not apply to the facts of this case. There was no occasion to consider the scope of Section 18 in that decision. The learned Counsel for the petitioners referred me to the decision of Jaganmohan Reddy, J., in Chandramani v. Collector of Visakapatnam A.I.R. 1957 A.P. 867 where the learned Judge upheld the claim of a landholder to a private market under Section 18(4) of the Act. I respectfully agree with the final conclusion reached by the learned Judge in that case. The topographical details of the market which the learned Judge had to consider in that case are very similar to those of the private market in Surandai.
22. On behalf of the Government it was further submitted that whatever might have been the position on the notified date, there are the rights of the alienees from the first petitioner also to be considered. But that is outside the purview of these proceedings.
23. The order of the Board will be set aside, and that in effect means the claim of the landholder, the first petitioner, to the market will have to be determined afresh by the Board in the light of the observations in this judgment. If necessity arises to examine again the position of the alienees from the first petitioner, the Board will have to take up that question also.
24. The rule nisi is made absolute, and the petition is allowed. No order as to costs.