JUDGMENT

G. N. RAY, J.:—The question for our consideration in this appeal is whether the expression "Building" in Section 3(i) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act) means only the superstructure or it includes the land underneath it also.

2. It is not necessary to go into the history of litigation between the parties, suffice it to say that the building in dispute was let out to the Sales Tax Department of the Government of Uttar Pradesh by one Devender Singh. His application under proviso to Section 21(8) of the Act for enhancement of rent was allowed by the Rent Control and Eviction Officer and he enhanced the rent of the building from Rs. 300/- to Rs. 5,622.87 per month. The appeal filed by the State of Uttar Pradesh before the Additional District and Sessions Judge, Saharanpur was dismissed. The State of Uttar Pradesh challenged the order of the courts below before the High Court by way of a writ petition under Article 226 of the Constitution of India which was dismissed by the High Court by its Order dated February 7,1991. This appeal by way of special leave is against the judgment of the High Court.

3. Section 3(i) and the proviso to Sec.21(8) of the Act are reproduced hereunder:

Sec. 3(i) "building" means a residential or non-residential roofed structure and includes

(i) any land (including any garden), garages and out-houses, appurtenant to such building;

(ii) any furniture supplied by the landlord for use in such building;

(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.

Sec. 21(8) ............... provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application. Provided further that a similar application. for further enhancement may be made after the expiration of five years from the date of the last of enhancement.

4. The Rent Control and Eviction Officer and the Appellate Authority under the Act determined the value of the superstructure and also of the land separately and thereafter adding both the values, the monthly rent payable by the appellant was determined. The High Court upheld the reasoning and findings of the courts below.

5. Learned Counsel for the appellant has contended that the plain meaning of the expression "building" under Section 3(i) of the Act shows that it only means the superstructure constructed on the land and does not include the land underneath the building. According to him the inclusive definition of "building" is indicative of the fact that the expression "building" does not include the land underneath it.

6. Mr. R. K. Jain, learned Counsel appearing for the respondent-landlord has contended that the definition of "building" under Section 3(i) of the Act on the face of it is clear and according to him an inclusive part of the definition is only pertaining to the land appurtenant to the building and not the land underneath the building. He plausibly contended that the land under the superstructure apparently comes within the expression building itself. Even otherwise there can be no justification for excluding the land underneath the building while construing the definition under Section 3(i) of the Act as there cannot be any superstructure without the land underneath it. Mr. Jain has, therefore, contended that within the definition of the building comprising roofed structure, the land on which the building stands automatically comes in and no valuation of such roofed structure can be completed without reference to the value of the land on which the roofed structure stands. Mr. Jain has relied on the judgment of this Court in Dr. Kishore Chand Kapoor v. Dharam Pal Kapoor, AIR 1987 SC 6