Maneklal
and Sons Vs. Trustees of Port of Bombay & Ors [1987] INSC 283 (14 October
1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
CITATION:
1988 AIR 832 1988 SCR (1) 483 1987 SCC (4) 733 JT 1987 (4) 199 1987 SCALE
(2)916
CITATOR
INFO : RF 1988 SC1313 (12)
ACT:
Bombay
Rent, Hotel and Lodging Houses Rates (Control) Act, 1947: Section 4(1)(a) and
4(4)(a)-Land belonging to local authority taken on lease-Lessee constructing
building and letting out the same-Sub lessee-Whether entitled to protection.
HEADNOTE:
In
1945 the first respondent-Trustees of Port of Bombay, granted lease of plot
owned by them for the purpose of erecting a godown for carrying on commercial
activities at a monthly rent of Rs. 925. In 1946 the lessee erected a permanent
godown. In 1958, he granted lease of the said godown to the petitioners. The
first respondent filed a suit against the heirs of the original lessee for
eviction on the ground of termination of tenancy, and obtained a decree.
When
warrant of possession was sought to be executed, the petitioners obstructed the
execution of the decree.
The
first respondent thereupon took out a Chamber Summons for removal of
obstruction under order 21 Rule 97- 101 C.P.C. The petitioners contended that
as they were lessees under the original lessee they were entitled to protection
of the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947-the
Bombay Rent Act-which applied to the building erected by a lessee from the
local authority. The trial court rejected the petitioners' objection and
allowed the Chamber Summons.
The
appeal of the petitioners was dismissed by the Single Judge of the High Court
holding that they were not entitled to the benefit of the Bombay Rent Act. The
contentions arising out of the Easement Act and alleged acquiescence of the
first respondent were negatived. The Letters Patent Appeal was also dismissed
by the Division Bench.
On
the question whether the petitioners were entitled to protection under section
4(1)(a) of the Bombay Rent Act.
484
dismissing the Special Leave Petition, ^
HELD:
Where a building was erected by the lessee not pursuant to or not under any
agreement with the lessor then the case did not fall under section 4(1)(a) of
the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947.
[486G]
Section 4(1) gives immunity to the local authority in respect of the land which
it has let out to the lessee and that immunity cannot be taken away merely
because the lessor on his own volition and without being in obligation under
any agreement choses to put up structures on that land.
Therefore,
if the premises belonged to the Government or a local authority then the Act
would not apply. [486H; 487A, D] In the instant case, The lands belong to the
local authority but the structures were put on by the lessees of the first
respondent not under any building lease, and such protection cannot be claimed
in respect of these premises.
In
view of the fact that the original lease was only a monthly tenancy and not a
building lease, the High Court was right in dismissing the objections on behalf
of the petitioners. Since the petitioners have been in possession of the
premises for some time, the petitioners are allowed to continue to remain in
the premises upto 15th September, 1988. [489F, H] Kanji Manji v. The Trustees
of the Port of Bombay, [1962] Suppl. 3 S.C.R. 461 applied.
Civil
Appellate Jurisdiction: Special Leave Petition (Civil) No.9887 of1987.
From
the Judgment and order dated 20.8. 1987 of the Bombay High Court in L.P.A. No.
77 of 1987.
K.K.
Venugopal, A.K. Sen, M.K. Nesari, P.H. Parekh and R.K. Dhillon for the
petitioners. F.S. Nariman, U.J.Maskeja, B.S. Basaniaum, J. Peres, A.K. Verma
and D.N. MiShra for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition is
for leave to appeal against the judgment and order of the Division Bench of the
485 Bombay High Court dismissing Letters Patent Appeal from the order of the
learned Single Judge. The 1st respondents being the trustees for the Port of
Bombay are the owners of plot of land bearing Plot No. 62 admeasuring 576 sq.
yards Lying and situate in Pooria Street, Elphinstone Estate, Bombay-3.
In
or about 1945 the trustees of the Port of Bombay granted lease of the said plot
of land to one Mustafa Husein for the purpose of erecting a godown for carrying
on commercial activities at a monthly rent of Rs. 925 which later on was
increased to Rs.1,465. In or about 1946 Mustafa Husein being the lessee of the
1st Respondent erected a permanent godown of brick, mortar and cement. The said
Mustafa Husein in 1958 granted lease of the said godown to the petitioners; the
area of the godown is about 3,000 sq. ft. It is alleged that petitioners have
since been carrying on their business in the said godown The Trustees of the
Port of Bombay filed suit against the heirs of Mustafa Husein for eviction from
the lease granted to Mustafa Husein for termination of the tenancy. The ground
for eviction was termination of tenancy.
The
Trustees of the Port of Bombay in July, 1977 obtained a decree on admission
against the heirs of Mustafa Husein in the said suit. In or about May, 1985
warrant of possession in execution of decree dated 20th of July, 1977 was
sought to be executed against the petitioners. The petitioners obstructed the
execution of the decree. Thereupon in or about June, 1985, the Trustees of the
Port of Bombay took out a Chamber Summons in the High Court of Bombay for
removal of obstruction under order 21 Rules 97 to 101 of the Code of Civil Procedure.
Petitioners contended that they were lessees under the said Mustafa Husein and
as such they were entitled to the protection of the Bombay Rent, Hotel and
Lodging Houses Rates (Control) Act, 1947, hereinafter called the Bombay Rent
Act, as the Bombay Rent Act applied to the building erected by a lessee from
the local authority and as such the petitioners right of possession was
protected under the provisions of the Bombay Rent Act. The Trial Court allowed
the Chamber Summons and rejected the petitioner's contentions. He observed that
it was not necessary to record evidence in this case. The petitioners being
aggrieved preferred a first appeal. The learned single judge of the High Court
dismissed the first appeal holding that the petitioners were not entitled to
the benefit of the Bombay Rent Act and negative the contentions arising out of
the Easement Act and also arising out of the alleged acquiescence of the
Trustees of the Port of Bombay. The petitioners preferred Letters Patent Appeal
which was also dismissed by the Division Bench of the Bombay High Court.
The
High Court observed that if the contentions of the petitioners were accepted
then the provisions of Section 4(1)(a) of the Bombay Rent Act would become
nugatory. Being aggrieved 486 there from the petitioners seek leave to appeal
to this Court under A Article 136 of the Constitution.
The
question, is, whether the petitioners are entitled to protection under section
4(1)(a) of the Bombay Rent Act.
The
answer will depend upon the question whether there was any building lease
granted to the original tenant Mustafa Husein. There was none, at least no such
evidence was adduced before the learned Trial Judge or before the Division
Bench of the High Court. When the matter came before this Court for admission
by our order dated 17th of September, 1987 as the question involved was whether
there was any agreement or lease with the lessor that they will have to
construct building on the land demised to them, but as no such lease had been
produced so far, time was granted for production of such evidence.
Pursuant
to the same today we have been shown two letters, one dated 16th of April, 1951
written by the Architect of the lessor forwarding the plants in triplicate to
the Bombay Port Trust for approval, and the other letter dated 14th of June,
1951 written by the Manager, Land and Bunders to the architect of the lessor on
the following subject:
"Elphin
Stone state Reconstruction of a Shed on Monthly Tenancy Plot at Poona
Street." The petitioners were informed that the plan was approved subject
to the compliance of the Municipal Regulations.
This
question arose in the Bombay High Court in Ram Bhagwandas v. Municipal
Corporation of the City of Bombay, A.I.R. 1956 Bombay 364. There interpreting
the Bombay Rent Act and section 4(1) and 4(a) thereof Chief Justice Chagla
speaking for the Division Bench held that the proper interpretation to put upon
section 4(4)(a) was that "under an agreement, lease or grant" must
qualify both "building erected" and "land held". In other
words, the building must be erected by the lessee pursuant to the agreement,
lease or grant given to the person who held the land under that agreement,
lease or grant. Therefore, where a building was erected by the lessee not
pursuant to any agreement with the lessor or not under any agreement with the
lessor then the case did not fall under section 4( l)(a).
What
section 4(1) does is to give immunity to the local authority in respect of the
land which it has let out to the lessee and that immunity cannot be taken away
merely because the lessee on his own volition and without being under any
obligation under any agreement choses to put up structures on that land.
Section
4 deals with exemptions and sub-section (1) provides as follows:
"This
Act shall not apply to any premises belonging to the Government or a local
authority or apply as against the Government to any tenancy or other like
relationship created by a grant from the Government in respect of premises
taken on lease or requisitioned by the Government: but it shall apply in
respect of premises let to the Government or a local authority".
Therefore,
if we have premises which belong to Government or a local authority, then the
Act would not apply. The land here belongs to the local authority but the
structures were put on by the lessees of the Port not under any building lease,
and such protection can not be claimed in respect of these premises.
Sub-section (4)(a) of section 4 is also relevant. It was held "The
expression 'premises belonging to the Government or local authority' in sub-
section (1) shall, notwithstanding anything contained in the said sub-section
or in any judgment decree or order of a Court not include a building erected on
any land held by any person from the Government or a local authority under an
agreement, lease or other grant, although having regard to the provisions of
such agreement, lease or grant the building so erected may belong or continue
to belong to the Government or the local authority, as the case may be".
Chief
Justice Chagla considered the historical background under which Section 4(a)
was enacted by the Bombay Act of 1953. This decision was approved by this Court
in Kanji Manji v. The Trustees of the Port of Bombay [1962] Suppl. 3 S.C.R.
461. Sub-section (4)(a) and (b) read as follows:
"(4)(a).
The expression "premises belonging to the Government or a local
authority" in sub-section (1) shall, notwithstanding anything contained in
the said sub-section or in any judgment, decree or order of a Court, not
include a building erected on any land held by any person from the Government
or a local authority under an agreement, lease or other grant, although having
regard to the provisions of 488 such agreement, lease or grant the building so
erected may belong or continue to belong to the Government or the local
authority, as the case may be; and (b) notwithstanding anything contained in
section 15, such person shall be entitled to create a tenancy in respect of
such building or a part thereof." This Court observed at page 471 of the
report that this was introduced by amendment and the purpose of the amendment
was as follows:
"The
amendment achieved two different things. It enabled the lessee of the
particular kind of building described in cl.(a) to create sub- tenancies in
spite of the ban against sub- tenancies contained in s. 15. It also excluded
from the operation of sub-section (1) the buildings specified in cl. (a) of the
sub-section.
The
amendment said nothing about the relationship of the Government or the local
authority, on the one hand, and the lessee, on the other, in respect of the
land. The word "premises" in sub-section (1) could mean the land or
the buildings or both.
Sub-section
(4)(a) dealt only with the buildings, and did not deal with the land, because
it used the word "buildings" and not the more general word
"premises". The import of sub-s. (4)(a) of s. 4 was thus limited to
buildings, and did not extent to land. The sub-section, however, was drafted
somewhat in artistically, and the obscurity of the language presents some
difficulty. The Trial Judge followed a decision of the Bombay High Court
reported in Ram Bhagwandas v. Bombay Corporation A.I.R. 1956 Bombay 364. In
that case, one Khudabaksh Irani had taken lease of certain plots some 30 years
back, and constructed some structures upon the open plot, and rented them out
as tenements. In 1947, Irani sold them to one Tyaballi. In 1951, the Municipal
Corporation filed a suit to eject Tyaballi from the plots, and by a consent
decree, Tyaballi agreed to deliver up vacant and peaceful possession of the
plots clears of all structures. Tyaballi failed to remove the structures, and
the Municipal Corporation sought to execute the decree. The tenants thereupon
filed a suit under 0.21, r. 103 of the Civil Procedure Code against Municipal
Corporation, but the h suit was dismissed. In the appeal which was filed in the
489 High Court, it was conceded that the Municipal Corporation was the owners
of the plots in question, but protection was claimed on the basis of sub-s.
(4)(a)
of s. 4 of the Rent Control Act. Chagla, C.J. in dealing with the history of
the amending Act, pointed out that the legislature was seeking to protect by
that sub-section tenants who occupied buildings put upon land belonging to a
local authority, if the buildings occupied by them were constructed under an
agreement under which the lessee was under an obligation to construct
buildings. He pointed out that the protection of sub-s. (4)(a) was to buildings
and not to land, and that the phrase "under an agreement, lease or other
grant" modified not only "held by any person from Government or local
authority" but also "erected on any land". He. therefore, held
that the words "erected on any land held by any person form a local
authority" were descriptive of the building and did not emphasise the
point of time when the building was erected. By that phrase, what was
emphasised was "that the nature of the building must be such as to satisfy
the test that it was erected on land held by a person from a local authority
and the test must be applied at the time when the protection is sought."
In that case, it was contended before this Court, as it was contended in the Bombay
High Court, that so long as a building was erected under an agreement with
Government or a local authority, the benefit of sub-s. (4)(a) of s. 4 would be
available, no matter how many hands the property might have changed. This Court
accepted the interpretation of the High Court in the aforesaid decision.
In
our opinion, in the instant case, in view of the fact that the original lease
was only a monthly tenancy and not a building lease, the High Court was right
in dismissing the objections on behalf of the petitioners. We find no reason,
therefore, to interfere with the order of the High Court. The special leave
petition therefore, fails and is accordingly dismissed without any order as to
costs.
Since,
the petitioners have been in possession of the premises for some time, in the
interest of justice it is desirable, in our opinion, that the petitioners
should have time to vacate the premises in question. In the premises, we allow
the petitioners to continue to remain in the premises upto 15th of September, 1988
provided they file the usual undertaking in this Court within four weeks.
N.P.V.
Petition dismissed.
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