Intent of the parties will be the test.

NAINAR SUNDARAM, J. :- 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 v. Paramanand Jindal, (1980) 2 Mad LJ 441, and the other of Sathiadev, J. in Shamsunnissa Begum v. C.K. Nanjiah, (1980) 2 Mad LJ 9, taking different views a Division Bench in Kaliammal v. Athi V. Ramachandran, (1983) 2 Mad LJ 252, accepted the view of Sathiadev, J. in Shamsunnissa Begum v. C.K. Nanjiah, (1980) 2 Mad LJ 9, Overruling the view of Ratnam, J. in Chelladurai v. Paramanand Jindal, (1980) 2 Mad LJ 441, and opining that the decision of the said Bench requires reconsideration, referred the matter to a Full Bench. The order of reference dated 10-11-1983, reads as follows :-

"A construction of the proviso to Cl. (4) of S.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-sec. (2) and sub-sec. (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 there of of the vacant land, if any appurtenant to such building' Sathiadev, J. in Shamsunnissa Begum v. Nanjiah,(1980) 2 Mad LJ 9, 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 v. Paramanand Jindal, (1980) 2 Mad LJ 441, 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 Kaliammal v. Athi V. Ramachandran, (1983) 2 Mad. LJ 252, 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.

2. Yet, another ques