K.C. Chunder, J.
1. These are two petitions in revision by a landlord against two appellate judgments ofthe Judge of the Sixth Bench of the Court of Small Causes Calcutta, reversing in appeal an order of the First Additional Rent Controller.
2. An application was filed before the Rent Controller by the tenant for fixation of standard rent. The premises in question, it is admitted by both parties, form part of a larger building not yet entirely constructed and those premises and the portion of the building up to now constructed were all constructed after 31-12-1949. The Rent Controller directed fixation of rent under Sections 9 (1) (e) or 9 (1) (g). As I have already pointed out in another decision, two sub-clauses of the same section cannot be applied to the same proceeding In the proceedings it is not clear whether he actually applied Clause (e) or Clause (g) of Section 9 (1).
3. Both the landlord and tenant appealed. There were two appeals. Hence two revisions. In both the appeals the appellate Court directed that the fixation must be under Section 9(1)(f) and remanded the case for the purpose of such fixation.
4. The point now raised by the landlord in both the revision cases is that Section 9(1)(f) does not apply.
5. Section 9(1)(f) has to be applied in the case of fixation of rent of all buildings constructed wholly or substantially after 31-12-1949. The actually completed work of construction may be at the time of either the entire building or of a part of the building. Again the word used in Section 9(1)(f) is 'premises'. Premises has been defined in Section 2(8) as being either the whole building or part of a building or any hut or part of a hut let separately and including certain other things mentioned therein. The main point to be noticed in connection with Section 2(8) is the separate letting. Whatever forms the subject-matter of one tenancy or letting is the premises and this may be the entire building or it may be only a part of it. If it is a separate tenancy or letting of a part of a building, it will still be premises according to the definition.
6. Remembering this definition of the word 'premises' in Section 2(8), we get three different cases of actually completed and letting out under that section. The first case is when the entire building has been completely constructed and is let out wholly to one person. In such a case there can be no question that Section 9(1) (f) will apply and the proviso has no application. Section 9(1)(f) runs thus.
'Where any premises have been wholly or are substantially constructed after 31-12-1949, by fixing the standard rent payable for one year at a rate equal to six per centum of the actual cost of construction as determined by the Controller added to the market price as on 31-12-1949, of the land included in the premises or to the market price of the said land as on the date of completion of the construction, whichever is less:
Provided that where the premises whose standard rent is to be fixed form a part of the construction the standard shall be fixed at a rate which is fairly proportionate to the total standard rent of the entire construction.'
7. It is clear that the main body of the sub-clause will apply, and the proviso cannot apply in the case of letting out of an entire building newly constructed as one tenancy.
8. The second case will be where the construction of the entire building has been completed but it has been let out separately in parts, to separate tenants that is there are separate tenancies, or as it is sometimes called 'several lettings.' Then also it is clear that the whole of Section 9(1)(f)will have to be applied namely the main sub-clause will apply as also the proviso.
9. The third class of cases is like the present case, where proof has been given that the entire construction when completed will be a six storied building, the plinth is constructed for that purpose and the sanctioned Municipal plan is for the same purpose. The construction as yet completed has been only of a part of it and that part ps being let out in separate tenancies or 'several lettings.' In such cases, it is clear that the proviso to Section 9(1)(f) cannot apply, because the cost of the entire construction is not known and cannot be ascertained at that stage. There is nothing in the main body of the Sub-clause (f) which may not be applied to that case.
10. Mr. Binayak Banerjee, appearing on behalf of the petitioner, has raised the following points for our consideration in order to show that application of Section 9(1)(f) may cause insuperable difficulties. The first point he raises is that the section says that in fixing standard rent a percentage of the actual costs of construction, as determined fay the Controller, added to the market price as on 31-12-1946, of the land included in the premises, or the market price of the suit land as on the date of the completion whichever is less, is to form the basis of rent fixation. His contention is that 'costs of construction' and 'completion of construction' are terms which must refer to the construction of the entire building.
It does not appear to be so. The statute subsequently, in the proviso of this very Sub-clause (f) has kept clearly in view the distinction between 'construction and entire construction.' In the proviso, 'the entire construction', proportionate to which the rent has to be fixed, will be the construction of the entire building. The 'construction' referred to in the body of the sub-clause, or 'the completed construction' appears to be the 'construction' or 'completed construction'' of the premises of which the rent is being actually determined. There is nothing to prevent valuation being made of a part of a buildingactually constructed and such is done very often by valuers without finding any insuperable difficulty. Flats in a building may have to be valued by valuers and the value of the land, thesalute of the construction including the plinth may have to be apportioned to these different flats as actual cost of such construction and this is done by valuers not only in this country but in other countries as well. The valuation may be sometimes an intricate process, but intricacy of the process cannot be taken to be insuperable difficulty and therefore require a different construction of the section from what appears from the clearwords of it. But the mode of valuation is a matter which comes up for consideration at the time of actual valuation. It does not offer any insuperable difficulty for considering the interpretation of the words of the sub-clause.
11. Another consideration put before the Court by Mr. Banerjee is that there may have to be two valuations of the same 'premises' at two different times, namely, one after the entire construction is completed and the other when the entire construction is not completed as in the present case. Theoretically also I do not see why this need be so, because 'proportion' referred toin the proviso may be proportion of the costs of construction and if the costs of construction of the 'premises' are previously ascertained by proper method of valuation, there need be no difficulty when the costs of construction of theentire building also are known. The costs of construction of the entire building need not alterthe cost of construction of the portion which was previously valued. On the other hand, that may form the standard with reference to which the cost of construction of rest of the building when completed may be determined for the purpose of the fixation of rent, on the basis of cost of construction of the entire building.
Even if there arise any question of re-fixation, I do not see there is anything to prevent the same from being done in a proper case under the Rent Control Act, for the very simple reason that the decision of a Rent Controller is not res judi-cata. It is not a Court. Secondly if the re-fixation has to take place because a statutory provision, giving a right to a person then first comes into operation i.e., the right arises at that time, there is nothing in law to prevent that fresh right being given effect to. It is not a sound argument to say that before the right has actually arisen something else had been done. None of the considerations urged by Mr. Banerjee show that cases of 'premises' consisting of part of an unfinished building still under construction are not to be a subject-matter of the main body of Section 9(1)(f) for the purpose of fixation of rent. Therefore, in the third class of cases which we have been considering, namely, where the entire construction is not yet completed bat separate portions of such unfinished building are being let out to separate tenants, Section 9(1) (f) will apply, but not the proviso.
12. The learned Small Cause Court Judge was,therefore, right in his decision and the Rules aredischarged with costs.