Full Judgment Text
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PETITIONER:
KANJI MANJI
Vs.
RESPONDENT:
THE TRUSTEES OF THE PORT OF BOMBAY
DATE OF JUDGMENT:
27/02/1962
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
DAS, S.K.
SHAH, J.C.
CITATION:
1963 AIR 468 1962 SCR Supl. (3) 461
CITATOR INFO :
R 1988 SC 832 (8)
D 1988 SC1313 (11)
D 1990 SC2053 (4)
ACT:
Ejectment--Suit by Government or local Authority against
assignees of leased land and building--Applicability of Rent
Act--Jurisdiction of City Civil Court--joint tenancy--Notice
on one tenant, if sufficient--Suit if bad for non-joinder of
legal representative of the deceased joint tenant--Assignee
of tenancy if bound by the terms of the original
lease--Where enviction of sub-tenant not Possible under
statute, whether a ground to defeat the rights of the Local
Authorities--Bombay Rents. Hotel and Lodging Houses Rates
(Control) Act, 1947 (Bom. 57 of 1947), ss. 4, 5(8), 15.
HEADNOTE:
In 1924, the Trustees of Port of Bombay granted a lease of
land for ten years to a partnership firm, with the covenant
that the lessee would, at their own expense construct upon
the said land, certain buildings to the specification. of
the trustees. It was provided inter alia that the lessee
would be at liberty to remove the buildings, erected by
them, within three months after the expiration of the term.
It is not clear what happened actually after the expiration
of the term of ten years. In 1942, the Trustees granted to
M/s. D and 0 their respective heirs, executors,
administrators and assigns, a mnthly tenancy of the and
together with the buildings standing thereon. It was agreed
with them that on the
462
determination of the tenancy, they would have to remove such
buildings as were standing upon the demised land. In 1947 M
Is. D and 0 assigned then rights in the lease to one R and
the appellant K which was accepted by the trustees. After
due notice in 1956, the Trustees filed a suit for ejectment
against R ard K, in the Bombay City Civil Court. R had died
before the filing of the suit and the plaint was amended by
striking out the name of R. The appellant as defendant took
a number of pleas; (a) notice was invalid as ’it had been
served only upon one of the lessees, (b) suit was bad for
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non-joinder of the heirs and the legal representatives of R,
(c) jurisdiction of City Civil Court was challenged as the
suit was governed by Rent Act, (d) and lastly, that the
contract to deliver vacant possession was impossible of
performance and the said impossibility rendered the’ claim
of the plaintiffs incompetent.
Held, that once it is held that the tenancy was joint a
notice to one of the joint tenants was sufficient, and the
suit for the same reason was good.
Held, further, that the suit as laid for vacant possession
of the site and in the City Civil Court was competent.
Held, that in view of the definition "premises" in s.5.(8)
and the events leading to the amendment of s. 4, the amend-
ment was enacted to cut down by a definition the operation
the words "any premises belonging to the Government or a
local authority" by excluding buildings which were occupied
by sub-tenants even though the building belonged to the
Government or continued to belong to it and any action of
the Government or local authority in respect of the land
falls to be governed by usb-s. (1) and not sub-s (4.) (a) of
the Rent-control Act.
Held, therefore, if the Government or a local authority
wants to evict a person from the land, the provisions of the
Bombay Rents, Hotel and Lodging Houses Rates (Control) Act,
1947, (lo not come in the way. For the same reason, the
suit for ejectment does not have to be filed in the court of
small causes, as requirtd by a Rent Control Act but in the
City- Civil Court.
If the ’original lessees took on lease not only the land but
also the building, it is not open to their assignees to
claim that the ownership of the Government extended only to
the land and not to the buildings.
If the appellant cannot evict his tenant so as to be able to
remove the building, in exercise of the right conferred on
him, that is an unfortunate circumstance, which does not
serve to entitle him to defeat the rights of Port
Authorities.
463
Quere :-The Port Trust Authorities, whether can evict the
sub-tenants ?
Bhatia Co-operative Housing society Ltd. v. D.C. Patel,
(1953) S.C.R. 185 and Bara Bhaywandas v. Bombay Corporation,
A.I.R. 1956 Bom. 364, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 302 of
1961.
Appeal by special leave from the judgment and order dated
September 24, 1959, of the Bombay High Court in F.A. No. 731
of 1959.
B. Sen and I. N. Shroff, for the appellant.
M. C. Setalvad, Attorney General of India, B.
Parthasarthi, J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the respondents.
1962. February, 27. The Judgment of the Court was.
delivered by
HIDAYATULLAH, J.-This appeal arises out of a suit tried in
the Bombay City Civil Court at Bombay:. filed by the
respondents, the Trustees of the Port of Bombay, for the
ejectment of the appellant, Kanji Manji, and one Rupji
Jeraji who had ’died even before the suit was filed, from a
plot situated at Haji Bunder Mazgaon, Sewri Reclamation
Estate, Bombay. and for possession of the land. There was a
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claim for Rs. 10,871-14-0 being the arrears of water charges
and property taxes, with which we are not concerned. The
suit was decreed by the Bombay City Civil Court and the
appellant was ordered to, vacate the suit premises add to
deliver vacant possession thereof. An appeal was filed
against the decree in the High Court of Judicature at
Bombay, but it was dismissed summarily on September 24,
1959. The High Court also refused an application for a
certificate, but the appellant applied for special leave,
and having obtained it, filed the present appeal.
In 1924, the Trustees of the Port of Bombay granted a lease
of the said land to five persons, who
464
were trading in partnership under the name and style of
Mancherji Vadilal and Company. This lease was for a term of
10 Commencing from December 14, 1923. For the first six
months, the conventional rent of pepper corn, if demanded,
was payable, and thereafter for the remainder of the term, a
monthly rent of Re. 633-5-4 was payable on the first day of
every month. The lessees were also to pay all rates, taxes,
assessments, etc. One of the covenants of the lease was
that the lessees would, at their own expense and during the
first six months period, construct upon the said piece of
land buildings for us as bullock stables and offices
according to the specification given to them by the said
Trustees and to be approved by them. It was provided, inter
alia, that upon the expiration of the term, if the lessees
had observed and performed all the covenants, they would be
at liberty, at their own expense, to remove the buildings
erected by them upon the demises on condition that the
removal would be completed within three months after the
expiration of the term. During this period of three months,
the lessees were to pay the monthly rent and also to pay all
rates and taxes etc. and if they failed to remove the
buildings within the period of three Calendar months from
the expiration of the term and within like period to fill up
all excavations and to level up and restore the land, the
right to remove the buildings would stand determined, and
the buildings would belong to the Trustees, who would be
entitled to remove them and to clear, level and restore the
land and recover the costs from the lessees.
It is not clear from the record as to what happened actually
after the expiry of the term. But on August 11, 1942, the
Trustees of the Port of Bombay granted to Moreshwar Narayan
Dhotre and Dinshaw Rustomji Ogre, carrying on business under
the name and style of Messrs. Dinshaw and Company and their
respective heirs, executors
465
administrators and assigns, a monthly tenancy of the land
together with the buildings standing thereon and all the
rights, easements and appurtenances belonging to the
premises on payment of monthly rent of Rs. 300/ , clear of
all deductions on the first day of each Calender month and
payment of all rates, taxes etc. The lessees covenanted not
to add to, or alter the said buildings and conveniences
etc., without previous consent, in writing, of the Trustees
and to maintain the property in good repair at their own
cost. They further agreed :
"to peacefully leave and, yield up the demised
premises together with all buildings thereon
as prepared and kept at the expiration or
sooner determination of the tenancy hereby
created or in the event of the Tenants
becoming entitled to remove the buildings
standing on the demised land at the expiration
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or sooner determination of the tenancy hereby
created pursuant to the proviso in that behalf
hereafter contained to peaceably leave and
yield up the demised land cleared and leveled
to the satisfaction in all respects of the
Trustees."
The provisos, inter alia, include the following covenants
binding the lessees :
"(2) Either party to these presents may
terminate the tenancy hereby created by giving
to the other of them one, calendar month’s
notice in writing to expire on the 1st day of
any calendar month.
(4) The Tenants may during the period of
notice for determination of tenancy hereby in
accordance with proviso No. 2 herein before
contained remove such buildings as have been
standing upon the demised land provided that
the Tenants shall have paid all rent hereby
reserved up to the determination
466
of this tenancy and shall have performed and
observed all the covenants on the part of the
Tenants and the conditions herein contained or
referred to."
On February 28, 1947, Moreshwar Narayan Dhotre and Dinshaw
Rustomji Ogra assigned their rights in the lease to Rupji
Jeraj and Kanji Manji who, according to the deed of
assignment (Ex.D) paid Rs. 22,250/- to the assignors, and
this assignment appears to have been accepted by the
lessors. On January 25, 1956, the Trustees of the port of
Bombay sent a notice to Rupji Jeraj and Kanji Manji
requiring them to vacate the premises and deliver. vacant
and peaceful possession of the land on February 29, 1956.
This notice was not complied with, and the suit was filed
for their ejectment, as stated already. In the plaint, the
first relief claimed was that "the defendant be ordered and
decreed to forthwith deliver vacant and peaceful possession
of the demised premises situate at Mazagaon Sewri
Reclamation Estate and more particularly described in Ex. A
hereto." Exhibit A mentioned the following:
"All that piece or parcel of land situate at
Haji Bunder, Mazagaon Sewri Reclamation
Estate, Bombay, admeasuring 5066 619 square
yards or thereabouts bearing Cadastral Survey
No. 272/145 of Parel-Sewree Division.’
The suit, as stated was filed against both Rupji Jeraj and
Kanji Manji, but later, the plaint was amended by striking
out the name of Rupji Jeraj, who had died much earlier.
The appellant, as defendant, raised a number of pleas. His
main contention was that the notice dated January 25, 1956
was invalid, inasmuch as it had been served only upon one of
the lessees (Kanji Manji) and not upon the heirs and legal
representatives of Rupji Jeraj. He also contended
467
that the suit was bad for non-joinder of the heirs and legal
representatives of Rupji Jeraj, who were necessary parties.
He raised a plea #of jurisdiction alleging that the suit had
to be filed in the Court of Small Causes, Bombay, inasmuch
as it was governed by the Bombay Rents, Hotel and Lodging
Houses Rates (Control) Act, 1947. He further claimed the
protection of a. 4, sub-a. 4 (a) of this Act which, he said,
applied to him and not subs. (1) of the same section. He
contended that, in view of the prohibition contained in the
Act the could not evict his sub-tenants and that the con-
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tract that he must deliver vacant possession was impossible
of performance, and the said impossibility rendered the
claim of the plaintiffs incompetent.
All those pleas were found against the appellant. It was
held that the tenancy was a joint tenancy that a notice to
one of the joint tenants was sufficient, and that the
suit,also was not bad for non-joinder of the legal
representatives of Rupji Jeraj. The trial Judger held that
the present agreement was enforceable, inasmuch as this case
was governed by sub-s. the(1) and not sub- s. 4 (a) of s. 4
of the Act. For same reason, the trial Judge also held that
the suit was properly laid in the Bombay City Civil Court at
Bombay, The same contentions were raised before us, and we
shall deal with them in the same order.
The argument about notice need not detain us long. By the
deed of assignment dated February 28, 1947, the tenants took
the premises as joint tenants. The exact words of-the
assignment were that........ the Assignors do and each of
them both hereby assign and assure with the Assignees as
Joint Tenants......... The deed of assignment was approved
and accepted by the Trustees of the Port of Bombay, and
Rupji Jeraj and the appellant must be regarded as joint
tenants. The trial Judge
468
therefore, rightly held them to be so. Once it is held that
the tenancy was joint, a notice to one of the joint tenants
was sufficient, and the suit for the same reason was also
good. Mr. B. Sen, in arguing the ’case of the appellant,
did not seek to urge the opposite. In our opinion, the
notice and the frame of the suit were, therefore, proper,
and this argument has no merit.
The real controversy in this case centers round the
applicability of the Bombay Rents, Hotel and Lodging Houses
Rates (Control) Act, 1947 (shortly called the Rent Control
Act in the judgment) to the present suit., and from that
also arises the question of the jurisdiction of the Bombay
City Civil Court. The latter argument about the juris-
diction of the Court can only arise, if the Rent Control Act
applies to the present facts. We shall, therefore, consider
these two points together.
It must not be overlooked that the suit was for eviction
from the land only Under the Rent Control Act, the word
"premises " is defined by s.5 (8) inter alia, as follows:
"Premises" means-
(&) any land-not being used for agricultural
purposes.
The Act, prior to its amendment in 1953 by the Bombay Act
IV of 1953, provided by s.4(1) 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........
This sub-section was considered by the Bombay
469
High Court in a case, which was brought up in appeal to this
Court by special leave. The judgment of this Court is
reported in Bhatia Co-operative Housing Society Ltd. v. D.
C. Patel (1). In that case, building sites were auctioned
in 1908 by the City’ Improvement Trust, Bombay. One of the
conditions of the sale was that the bidder should construct
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a building, on the site, of a certain value and according to
a plan approved by the City Improvement Trust. One Sitaram
Laxman was the highest bidder, and he constructed a
building. as agreed. He was then granted a lease of the
land together with the building for 999 years. Subsequently
in 1925, the Bombay Municipality succeeded the City
Improvement Trust, and the Bhatia Co-operative Housing
Society Ltd. acquired the lessee’s interest. A suit was
filed by the Co-operative Society against its own tenants in
the Bombay City Civil Court. The plea was that the suit
ought to have been filed in the Court of Small Causes, as
required by the Rent Control Act. The plaintiff relied upon
sub-s. (1) of s. 4 to show that the Act did not apply to
such a suit. This contention of the plaintiff was accepted
by the Trial Judge, who decreed the claim. The Bombay High
Court, however, on appeal, held that sub-s.(1) of s. 4 did
not apply, and that as between the Co-operative Society and
its sub-tenants, the suit was governed by the Rent Control
Act and ought, to go before the Court of Small Causes. The
High Court, therefore ordered that the plaint be returned
for presentation to the proper Court.
This Court, on appeal by special leave, reversed the
decision of the ’High Court, and restored that of the Trial
Judge. This Court pointed out that sub-s. (1) of s. 4 had
three parts viz.
"(1) this Act shall not apply to premises
belonging to the Government or a local
authority;
(1) [1953] S. C. R. 185,
470
(2) this Act shall not apply as against the
Government to any tenancy or other like
relationship created by grant from the
Government in respect of premises taken or
lease or requisitioned by the Government; and
(3) this Act shall apply in respect of pre-
mises let out to the Government or a local
authority."
This court further held that the first part of the sub-
section mentioned as part No.(1) above had no reference to
any tenancy or other like relationship as in the latter
part, and was general in character. In framing it in that
way, the intention was obviously different, and it was to
exempt premises of a particular type from the operation of
the Act altogether, and the exemption attached to the
premises. Reasons were given by this Court why it thought
that this exemption was general and the immunity absolute.
Into these reasons we are not now required to go. As
between the Bombay Municipality and the lessee, it was held
that the land and the buildings belonged to the former as
owners and not to the lessee. This Court, therefore,
observed at p. 196:
"The truth is that the lessor after the
building was erected became the owner of it
and all the time thereafter the demised pre-
mises which include the building have belonged
to him subject to the right of enjoyment of
the lessee in terms of the lease."
The Act was thus held not to apply to such suits, and the
order of the High Court was reversed.
At first, an Ordinance and later, an Act were passed to
nullify the effect of this ruling by the addition of sub-
s.4(a). That sub-section now
reads as follows ;.
"(4)(a). The expression "premises
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471
belonging to the Government or a local au-
thority" in sub-section (1) shall, notwith-
standing 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, a,-, the case may be; and
(b) notwithstanding anything contained in
section 15, such person shall be en led to
,tit create a tenancy in respect of such
building or a part thereof."
The amendment achieved two different things. It enabled the
lessee of the particular kind of building described in el.
(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-s.(1) the buildings specified in cl. (a) of
the subsection. 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 subs.(2) 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 extend to land.
The sub-section, however, was drafted somewhat
inartistically, and the obscurity of the language presents
some difficulty. The Trial Judge following a decision of
the Bombay High Court reported in Ram Bhagwandas v. Bombay
Corporation(1). In that case, one Khudabaksh Irani had
A.I.R, 1956. Bow. 364.
472
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 clear 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, 103 of the Civil Procedure Code against
Municipal Corporation, but the suit was dismissed. In the
appeal which was filed in the 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 from a local
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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 hold by a person from a local authority and
the test must be applied at the time when the protection is
sought."
473
In this case, it is contended, 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-a. (4)(a) of s. 4 would be available, no
matter how many hands the property might have changed. this
argument was considered by the learned Chief Justice, and
was rejected.
In our opinion, though the section is far from clear, the
meaning given by the learned Chief Justice is the only
possible meaning, regard being had to the circumstances in
which this sub-section came to be enacted. Those
circumstances were : In a case in which the holder of the
land from a local authority was seeking to evict his sub-
tenants, it was held by the Bombay High Court that the
matter was governed by the Rent Control Act. This Court
held that sub-s.(1) applied and the suit was not governed by
the Rent Control Act. The amendment was enacted to cut down
by a definition the operation of the words "any premises
belonging to the Government or a local authority", by
excluding only buildings which were occupied by sub-tenants
even though the buildings belonged to the Government or
continued to belong to it. Clause (b) of sub-s.(4) excluded
also s. 15, which prohibited subjecting by a tenant. That,
however, was limited to the case of buildings only, and did
not apply to the case of land. In this situation, any
action by the Government or the local authority in respect
of land falls to be governed by sub-s.(1) and not sub-s.(4)
(a), and sub-s.(1) puts the case in relation to land,
entirely out of the Rent Control Act. The net result, there
fore, is that if Government or a local authority wants to
evict a person from the land, the provisions of the Rent
Control Act do not come in the way. For the same reason,
the suit for ejectment does not have to be filed in the
Court, of Small Causes, as required by the Rent Control Act
but in the City Civil Court. as has been done in this case.
474
There is one more reason in this case for reaching the same
conclusion, because at the time of the lease in 1942, the
lessees, from whom the appellant claims assignment, were
given a lease not only of the land but of the buildings.
’The whole tenor of the agreement shows that the title of
the lessees wag precarious. It was a monthly tenancy liable
to be terminated with a notice under the Transfer of
Property Act, and there was only a grace that the lessees,
when evicted, might remove buildings within one month of
their eviction. This precarious interest was obtained by
the assignee by an assignment, and the same thing applies to
them. If the original lessees took on lease not only the
land but also the buildings, it is not open to their
assignees to claim that the ownership of the Government
extended only to the land and not to the buildings By the
admissions in the deed of lease and the. various clauses, it
is quite clear that these buildings cannot now be described
as buildings constructed under an agreement with the
Government, but rather as buildings belonging to Government
which were leased out with the land but in respect of which
by a concession, the lessees were entitled to remove the
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buildings within one month after eviction, In our opinion,
the suit as laid for vacant possession of the site and in
the City Civil Court was competent.
It was contended that the contract was incapable of being
performed, because at least between the present appellant
and his sub-tenants the provisions of the Rent Control Act
would apply, and he would not be able to evict them in his
turn. It was, therefore, argued that this impossible on the
part of the appellant to fulfill his, obligations to deliver
vacant possession rendered that portion of the lease deed
unenforceable and void. It is to be noticed that the
appellant does not claim that by reason of the impossibility
the whole of the lease
475
deed becomes void, because if he did so, the suit of the
Port Trust authorities would be perfectly justified without
any more He only seeks to show that portion of the deed
dealing with delivery of vacant possession has become
impossible of performance. Such a situation had also arisen
in the case of the Bombay High Court in Ram Bhagwandas v.
Bombay Corporation (1), and the assignee of the lessee was
unable ’to deliver vacant possession. Whether or not the
Port Trust authorities would be able hereafter to evict the
sub-tenants of the appellant is a matter, on which we need
not express any opinion. If the appellant cannot evict his
subtenants so as to be able to remove the buildings, in
exercise of the right conferred on him, that is an
unfortunate circumstance , which does nor, serve to entitle
him to defeat the rights of the Port Trust authorities. The
are only claiming vacant possession of the sited, and under
the agreement, if the appellant does not remove the
buildings within one month, then they would be entitled to
take possession of the land with the buildings, whatever
might be the rights of the sub-tenants, and as to which, as
we have pointed out already, we say nothing.
In our opinion, the appeal must fail, and is dismissed ; but
in the circumstances of the case, we do not make any order
about costs.
Appeal dismissed.
(1) A.I R 1996 Bom. 364
476