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PETITIONER: DR. H. S. RIKHY AND OTHERS

       Vs.

RESPONDENT: THE NEW DELHI MUNICIPAL COMMITTEE

DATE OF JUDGMENT: 13/09/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. DAYAL, RAGHUBAR

CITATION:  1962 AIR  554            1962 SCR  Supl. (3) 604

ACT: Rent  control--Fixation of standard rent-Maintainability  of application-Relation of land and tenant, if  esseatial-Delhi and  Ajmer  Rent Control Act, 1952 (38 of 1952),  ss.  2(c), 2(g), 2(j), 8, 38-Punjab Municipal Act, 1911 (Punjab III  of 1911), ss.18, 47.

HEADNOTE: The  respondent  Municipal  Committee,  in  pursuance  of  a resolution  passed  by it, called for tenders  and  put  the respondents, who made the highest offers, into possession of certain  shops  and  premises on amounts  varying  from  Rs. 135-8-0  to Rs.520 payable for every month.  After they  had continued  in  possession for some years on payment  of  the said  amounts,  described  as rents  in  the  receipts,  the appellants  applied  under s.8 of the Delhi and  Ajmer  Rent Control Act, 1952, for standardisation of rent.  There  were admittedly  no contracts of transfer in writing  signed  and attested  in  the manner prescribed by S.47 of’  the  Punjab Municipal  Act, 191 1. The respondent took  the  preliminary objection  that  the applications were not  maintainable  as there  was  no relation of landlord and tenant  between  the parties  within  the meaning of the Rent Control  Act.   The trial  court found in favour of the appellants but the  High Court  in  the exercise of its revisional  jurisdiction  set aside the decision of the trial court. Held, that it was evident from the definitions of the  terms landlord’, ’Premises and tenant contained in ss. 2(c),  2(g) and  2(j) that the Delhi and Ajmer Rent Control  Act,  1952, that  the  Act applied only to such letting of  premises  as created an interest in the property, whatever its  duration, and gave rise to the relation of landlord and tenant between the parties. 605 It was not correct to say that the letting’ contemplated  by the Act included not merely a transfer to a tenant but  also to  a  licensee,  or  that the use of  the  word  ’rent’  in receipts precluded the landlord from pleading that there was no relation of landlord and tenant between the parties. Although  s. 18 of the Punjab Municipal Act, 191  1,  vested power  in a Municipal Committee to enter into contracts  for

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the transfer of its properties, the mandatory provisions  of s.47  laid down the essential conditions of the exercise  of it.  Those conditions were not in any way inconsistent  with the  provisions  of the Rent Control Act and  did  not  come within the mischief of s.38 of that Act. Crook  v. Corporation of Seaford, (1871) L.R. 6 Ch. 551  and Deo v. Taniere (1848) 116 E.R. 1144, held inapplicable. H.   Young  &  Co.  v. The Mayor and  Corporation  of  Royal Leamington Spa, (1883) L.R. 8 App.  Cas. 517, referred to. Where  a  statute  makes a specific provision  that  a  body corporate  has to act in a particular manner that  provision is  mandatory,  and  not  directory  and  must  be  strictly followed. Consequently, in the instant cases, no relation of  landlord and   tenant  was  created  between  the  parties  and   the applications must fail.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 30 to  32 of 1959. Appeals from the judgment and order dated April 25, 1956, of the’  Punjab High Court in Civil Revision Applications  Nos. 186, 187 and 203 of 1954. M.  C.  Setalvad, Attorney-General for  India,  Anoop  Singh and    R. Gopalakrishnan,      for     the appellants. C.   K. Daphtary, Solicitor-General of India R.   Ganapathi Iyer and G. Gopalakrishnaa, for the respondents. 1961.   September  13.   The  Judgment  of  the  Court   was delivered by SINHA, C. J.--The question for determination in these  three appeals,  on  certificates ’of fitness granted by  the  High Court of Punjab under Art. 133(1)(c) of the Constitution, is whether  the provisions of S. 8 of the Delhi and Ajmer  Rent Control Act (38 of 1952) (which hereinafter will be referred 606 to as the Act) apply to the transactions in question between the  appellants  in each case and the  New  Delhi  Municipal Committee (which for the sake of (tee brevity we shall  call the Committee’ in the course of this judgment). It  is necessary to state, the following facts in  order  to bring  out the nature and scope of the controversy.   It  is not necessary to refer in detail to the ’facts of each  case separately for the purpose of those appeals.  The  Committee built in 1945 what is known as the Central Municipal  Market Lodi  Colony.   This Market has 32 shops,  with  residential flats  on  28  of them.  In April 1945,  the  Committee,  in pursuance of a resolution passed by it, invited tenders from intending bidders for those shops and premises.  On  receipt of tenders, the highest bidders were allotted various  shops on  rents  varying from Es. 135-8-0 to Rs. 520  per  mensem. The  allottees  occupied  the  shops  and  the  premises  in accordance  with  the allotments made by the  Committee  and continued  to  pay  the respective  amounts,  which  may  be characterised as rents, without prejudice to our decision on the question whether it was legally a rent’, because as will presently  appear,  one  of the  controversies  between  the parties  is whether it is ’rent’ within the meaning  of  the Act.   Towards  the end of 1952, 30 of the  occupants  filed applications under s. 8 of the Act praying for the  fixation of  standard  rent  in  respect of  the  premises  in  their respective  occupation.  The Committee raised a  preliminary objection   to   the  maintainability   of   the   aforesaid applications on the ground that there was no relationship of

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landlord   and  tenant  between  the  applicants   and   the Committee,  within the meaning of the Act.  The Trial  Court accordingly framed the following issue for determination  in the first instance :               "Whether   the  relationship  of  tenant   and               landlord    exists   between   the    parties,               therefore,  those applications  are  competent               and the               607               Court  has  jurisdiction to fix  the  standard               rent?" The learned Subordinate Judge, who dealt with these cases in the first instance, came to the conclusion that the  several applicants  were tenants within the meaning of the Act,  and that,  therefore,  the  applications  were  competent.   The committee   moved   the  High  Court   in   its   revisional jurisdiction, and the learned Chief Justice, sitting singly, referred  those  cases to be heard by a Division  Bench,  as they raised questions of general importance.  The matter was thus heard by a Division Bench composed of G. D. Khosla  and Dulat, JJ.  The High Court, by its judgment dated April  25, 1956,  set aside the aforesaid finding of the  Trial  Court, but  made  no  order  as to costs.  The  High  Court  in  an elaborate  judgment,  on  an  examination  of  the  relevant provisions of the Act, came to the conclusion that there was no relationship of landlord and tenant, between the parties, inasmuch  as there was no letting’, there being no  properly executed lease, and the doctrine of part performance was not attracted  to the facts and circumstances of the case.   For coming  to  the  conclusion that there was  no  valid  lease between  the  parties,  the  High  Court  relied  upon   the provisions of s. 47 of the Punjab Municipal Act (Punjab  Act III of 1911).  The High Court also negatived the  contention that the Committee was estopped from questioning the  status of  the applicants as tenants, having all  along  admittedly accepted  rent  from them.  The appellants  moved  the  High Court and obtained the necessary certificates of fitness for Coming up in appeal to this Court.  The certificates of  the High  Court  are dated October 28, 1957.  That  is  how  the matter has come before this Court. It  has  been argued on behalf of the  appellants  that  the Transfer of Property Act does not apply to the  transactions in  question,  and that therefore, the High  Court  was  not justified  in insisting upon a registered lease, or  even  a written lease, executed 608 between the parties.  It was enough that the tenants in each case  had given a written Kabuliyat from which the terms  of the  respective tenancies could lee be ascertained.  It  was also  contended that the High Court was in error in  relying upon  the  provisions of s. 47 of the Punjab  Municipal  Act which,  it was contended, was subject to the  provisions  of the  Act, in view of the overriding provisions of s.  38  of the  Act.  It was further contended that the definitions  of landlord’ [s. 2(c)], of ’premises’[s. 2(g)]. and of  tenant’ [s.  2 (j)] in the Act were comprehensive enough to take  in the  transactions between the appellants and the  Committee. Reference  was also made to s. 3 of the Act to show  that  a public  body  like  the Committee was  not  intended  to  be excluded from the opt-ration of the Act. On the other hand, the learned Solicitor General,  appearing for  the Committee, contended that the essential element  of ’letting’  becomes  apparent from the consideration  of  the provisions  of  the Act, with particular  reference  to  the definitions  of  landlord’, ’Premises’  and  ’tenant’.   His

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contention was that the key word ’letting’ should be equated with the creation of an interest in immovable property by  a valid contract; hence, if there was no valid contract, there was no transfer of property, and, therefore, no letting.  If there  was  no  letting, the relationship  of  landlord  and tenant  was not created between the parties and  the  amount received  by the Committee as rent was legally not  rent  in the  strict  sense  of the term.  Though the  Act  (lid  not prescribe any form of ’letting’, the provisions of s. 47  of the  Municipal  Act applied, and as the provisions  of  that section  are  not  in  direct  conflict  with  any  of   the provisions  of the Act, there was no  inconsistency  between them.   That being so S. 38 of the Act was ’out the  way  of the  Committee.  The Committee, being a corporation, has  no capacity  to  contract  or to transfer  property  except  in accordance with the provisions of s. 47. 609 Admittedly  the provisions of s. 47 have not  been  complied with.  Therefore, the,, Committee is not bound to  recognise the  transactions  in question as creating  an  interest  in immovable  property;  there being no interest  in  immovable property in favour of the appellants, they cannot be  called ’tenants’  within  the meaning of the Act, and’  as  only  a tenant  can invoke the provisions of s. 8, the  applications must be held to be incompetent.  There could be no  question of  estoppel because both parties knew that under  the-  law there had to be’& transfer of property by the Committee  in- accordance  with  the provisions of s. 47 of  the  Municipal Act.   It  is  well  settled law that  there  cannot  be  an estoppel against the provisions of a Statute. The  question  whether the petitions under s. 8 of  the  Act were  competent, it is common ground must depend on  whether or  not there was relation. ship. of. landlord’  and  tenant between  the  parties  The  learned  Attorney  General,  who appeared in. support of these appeals contended in the first place,  that:the  definitions of landlord’,  premises,.  and ,tenant’ in s. 2, cls.(c), (g) and (j) respectively, of  the Act  make  it  clear that the person for,  the  time.  being receiving  rent  is  the landlord and the,  person  who  is; paying  the  rent  is the tenant  of  the  premises.   These definitions are as follows:               "landlord’  means a person who, for  the  time               being is receiving, or is entitled to  receive               the  rent of any premises whether on  his  own               account or on account of, or on behalf of,  or               for the benefit of, any other person or as  a,               trustee,  guardian or receiver for  any  other               person or who would so receive the rent or  be               entitled   to;.  receive  the  rent,  if   the               premises were let to a tenant;...               ’premises’ .’moans any, building or Part of  a               buildings which is., or is intended’ to be let               separately for use as residence or for               610               commercial  use or for any other purpose,  and               includes-                     (i)  the garden grounds and outhouses if               any, appertaining to such building or part  of               a building ;               (ii)  any  furniture supplied by the  landlord               for  use  in  Such  building  or  part  of   a               building;               but  does  not include a room in a,  hotel  or               lodging house...               ’tenant’ means any person by whom or on  whose

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             account  rent is payable for any premises  and               includes such sub-tenants and other persons as               have  derived title under a tenant  under  the               provisions of any law before the  commencement               of this Act...". The  argument is that the Act has been enacted ,to  provide; for  the control of rents and evictions’ and that in  making these  provisions for safeguarding the interests of  tenants under the Act the provisions of other enactments relating to the creation of the, relationship of landlord and tenant and regulating the incidence of tenancy and grounds of eviction, the  Act has provided for a simple rule that without  paying any  regard to formalities, the fact of receiving rent by  a person  Constitutes  him the landlord and the payer  of  the rent  the  tenant, within the meaning of the Act.   The  Act does  not stop to consider whether there is a lease, and  if so, what are the terms contained in the lease regulating the relationship  of landlord and tenant, and that if  there  is any inconsistency between the provisions of the Act and  any other  law  for the time being in force,  the  former  shall prevail, as laid down in s.   38 of the Act.  The  section reads as follows:               "The provisions of this act and the rules made               thereunder  shall have effect  notwithstanding               anything  inconsistent therewith contained  in               any, other law for the ; time being               611               in force or in any instrument having effect by               virtue of any such law." With reference to the terms of the section, just quoted,  it has  been contended, that the provisions of the Transfer  of Property Act regulating the grounds of eviction, or even the provisions  of the, Municipal Act, particularly s. 47,  have no legal effect in so far as they are inconsistent with  the provisions  of the Act.  In this connection it is,  asserted that the formalities required by s. 47 of the Municipal Act, in order to invest binding force to the transfer of property or  the  contract made by. the Committee,  are  inconsistent with  the provisions of the Act, namely, the definitions  of landlord’ ’tenant’ and ’Premises’.  With reference to s.  47 of  the  Municipal Act, it is further  contended  that  the, section does not confer capacity to contract or to  transfer property but only prescribes the mode for-., entering into a contract  or  for  making  a transfer  of  property  by  the Committee, and that therefore s 47 cannot have the effect of rendering  null  and void what was done  by  the  Committee, namely,  advertising the premises for being allotted to  the highest bidders on terms and conditions as contained in  the Kabuliyat  given  by  the,  tenants. In  this   connection reliance was placed upon Crook v. Corporation of Seaford (1) and  Deo  v. Taniere(2).  It has also been  urged  that  the letting’  contemplated  by  the  Act  does  not  necessarily connote  a transfer of property, but simply  permitting  the tenant to occupy the premises for a sum of money.  In  other words,  even  a licensee, as distinguished  from  a  lessee, would  come  within the purview of the Act.   In  this  con- nection reference was made to the Shorter Oxford Dictionary, which  contains the following words, inter alia,  under  the ’word let’:               "to grant the temporary possession and use  of               in consideration of rent or hire".               (1)  (1871) L.R 6 Ch, 551.  (2) (1848) 116  E.               R. 11.44 612 If  this  contention is correct, then there cannot  be  the,

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least doubt that a licensee would also come within the ambit of  the Act.  But we are not prepared to hold that the  Act, by its terms, intended to be so comprehensive as to  include within  its sweep not only tenants properly so  called,  but also  licensees.   It is true that  the  dictionary  meaning applies  the, term letting’ to inducting a tenant and  deli- vering  possession  to him as such, of the  premises  for  a consideration  which  can be characterized as "rent’,  or  a licensee who has been permitted to occupy the premises for a consideration which may be called ’hire’, If the argument is correct,  then  a  person  hiring a room in  a  hotel  as  a licensee  would  also come -within the purview of  the  Act. But  the  Act, in terms, has excluded a room in a  hotel  or lodging house from the definition of ’premises’. It was also contended that it was admitted by the respondent that rent *as received and receipts for rent were granted by its  agents.  The use of the word "rent’ is, not  conclusive of  the  matter.   It  may be used in  the  legal  sense  of recompense  paid  by  the tenant to  the  landlord  for  the exclusive  possession of premises occupied by him.   It  may also  be used in the generic, sense, without  importing  the legal  significance aforesaid, of compensation for  use  and occupation.  ’Rent’ in the legal sense can only be  reserved on a demise of immovable property.  Reference may be made in this connection to paragraphs II 93 and 11 94 of  Halsbury’s Laws  of England (Third Edition, Vol. 23) at pages  536-537. Hence,  the  use  of the term -,rent’  cannot  preclude  the landlord  from pleading that, there was no  relationship  of landlord and tenant.  The -question must, therefore,  depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant. In  our  opinion, the Act applies only to  that  species  of ’letting’ by which there relationship of land-                             613 lord  and  tenant is created, that is to say,  by  which  an interest  in the property-, however limited in duration,  is created. Having held that the Act applies to ’letting’ which  creates an interest in immovable’ property we have to determine  the question  whether  in  these  cases  there  was  a  contract creating  such  a  relation. ship.  Now,  under  the  Punjab Municipal Act-, s. 18, a Committee is a corporate body  with perpetual  succession  and  a common  seal,  with  power  to acquire and hold property and to transfer any property  held by it "subject to the provision of this Act, or of any rules thereunder".    Section   18,   therefore,   contains    the authorisation  in  favour  of the committee  to  enter  into contracts  and to transfer property belonging to  it.   This power is subject to the other provisions of the Act.   Thus, in so far as the Committee’s power to enter into a  contract or  to  transfer a property is concerned the  power  may  be delegated  in accordance with the provisions of s. 46.   The contract to transfer property has to satisfy the  conditions laid down in s. 46 (2) of the Municipal Act if the value  or amount  thereof  exceeds Rs. 500.  No such contract  can  be made  until  it  has been sanctioned at  a  meeting  of  the Committee.   That  condition  has been  satisfied  in  these cases.  But we have to consider he provisions of s. 47 which have  been  very  strongly  relied upon  on  behalf  of  the Committee.  The section is in these terms : "47.  (1)  Every  contract  made by  or  on  behalf  of  the Committee of any municipality of the first class whereof the value or amount exceeds one hundred rupees,, and made by  or on behalf of the Committee of any municipality of the second

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and  third class whereof the value or amount  exceeds  fifty rupees  shall  be  in writing, and must  be  signed  by  two members,  of whom the president or a vice president shall be               one, and countersigned by the secretary:               614               Provided that, when the power of entering into               any  contract on behalf of the  committee  has               been   delegated  under  the  last   foregoing               section,  the signature or signatures  of  the               member  or members to whom the power has  been               delegated shall be sufficient.               (2)   Every  transfer  of  immovable  property               belonging  to any committee, must be made,  by               an  instrument  in writing,  executed  by  the               president  or vice-president, and by at  least               two   other   members   of   committee   whose               executions  thereof shall be attested  by  the               secretary.               (3)   No  contract  or transfer  of  the  des-               cription  mentioned in this  section  executed               otherwise  than  in conformity with  the  pro-               visions  of this section shall be  binding  on               the committee." Now in order that the transfer of the property in ,question should be binding on the Committee, it was essential that it should  have been made by an instrument in writing  executed by  the  President or the Vice-President and  at  least  two other  members of the Committee, and the execution  by  them should  have  been  attested by  the  Secretary.   If  these conditions are not fulfilled, the contract of transfer shall not be binding on the Committee.  But it has been  contended on behalf of the appellants that the noncompliance with  the provisions  aforesaid  of  s. 47, quoted  above,  would  not render  the contract of transfer of property void  but  only voidable.  In  other words, where the actings of the parties have  given  effect to the transactions, as in  the  instant cases  by delivery of possession of the pro.  Perty  by  the Committee  and payment of the rent ’by" the appellants,  the absence of formalities would not render the transactions  of no  legal  effect  But it has to be noted that  it  was  not contended  on  behalf of appellants that the  provisions  of s.47(3) of the Municipal Act, are not mandatory and 615 are  merely directory.. Such an argument was not ’and  could not have been advanced, because it is settled Law. that. the provisions of a Statute in those peremptory terms could  not but be construed as mandatory. But  the learned  counsel for the appellants placed a  great deal of  reliance on the decisions: in the cases of Crook v. Corporation  of Seaford (1) and Deo v. Taniere (2).  In  the first  case,  the suit was for specific  performance  of’  a contract  by  the-  Corporation which  was  evidenced  by  a resolution  of  the Corporation, to let to the  plaintiff  a piece  of  land the boundaries of which had not  been  fully determined.  though there was no contract under seal,  Crook pursuance of the contract built a wall and terrace on  parts of the land in question.  The Corporation brought a suit for ejectment,  and  the  plaintiff thereupon filed  a  bill  in Chancery for specific performance.  It was held by the  Lord Chancellor,  Lord Hatherley, confirming the decision of  the Vice-Chancellor,  that  though the agreement was  not  under seal,  the corporation, was bound by acquiescence  and  must perform  the  agreement  to grant the  lease.   It  must  be remembered  that  was  a suit to obtain  a  lease  from  the grantor,  the Corporation, that is to say, it was an  action

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in equity, and the Court of Equity held, in the words of the Lord  Chancellor,  that "at all events, a Court,  of  Equity could not allow the ejectment to proceed after the plaintiff had  spent so much money on ’the wall".  The  decision  was, therefore,  explicitly based on. the doctrine  of  ’Standing by’.   In that case there is no reference to  any  statute., the  terms of which could said to have been infringed.   In the  second  case [Deo V. Taniere (2)] again  there  was  no question of the infringement of any. mandatory provision  of a  Parliamentary  statute.  That is the case of a  grant  of lease for 99 years, omitting   a covenant to build.  It  was held, that whether (1) (1871) L.R. 6 Ch. 551.  (2) (1848) 116 E.R. 1144. 616 the  lease  was  only voidable, or  void,  receipt  of  rent without   proof  of any instrument under seal could raise  a presumption of a demise from seal to year.  It is thus clear that neither of those    cases, strongly relied upon by  the counsel for the     appellant   is  an  authority  for   the provisions that     where  the  statue makes  it  obligatory that there  should be a contract under seal, the absence  of such a contract could be cured by mere receipt of rent.   We have  here to  determine whether the provisions of a. 47  of the Municipal Act prevent the committee from entering into a ’contract or making a transfer of property without complying with the conditions laid down in that section.  That the two cases referred to above are no authority on the question now arising for determination in the instant cases is clear from the  decision of the House of Lords in Young & Co.  v.,  The Mayor and Corporation of Royal Leamington Spa (1).  In  that case, their Lordships had to consider the effect of  s. 174 of  the  Public Heath Act, 1875 (38 & 39 Act  c.  55)  which required  that every contract made by an urban authority  of the  value or amount exceeding pound 50 shall be in  writing and  sealed with the common seal of the authority.   It  was hold  that the provisions of s. 174 were obligatory and  not merely  directory  and applied to an  executed  contract  of which  the  urban authority had taken full benefit  and  had been  in  enjoyment  thereof.  That was a  case  which  came before   the  Queen’s Bench Division on  a  reference.   The question referred was whether the absence of the common seal of  the Corporation required by a. 174 of the Public  Health Act aforesaid WA* fatal to the plaintiff’s claim to  recover from  the Corporation the costs of the works constructed  by the,  plaintiff  at the instance of  the  Corporation.   The decision  of the Court of Appeal, composed of Brett,  Cotton and Lindley, L. JJ. (1)  (1888) L.R. 8 App.  Cas. 517.  617 confirming  the  judgment of the Queens  Bench  Division  is reported  in.   8 Q.B.D. 579.  In the House of  Lords,  Lord Blackburn  made an extensive quotation from the judgment  of Lindley, L.J., from which the following passage may be read.               "The  cases on this subject are very  numerous               and  conflicting, and they require review  and               authoritative exposition by a Court of  appeal               but,  in my opinion, the question thus  raised               does not require decision in the present case.               We  have here to construe and apply an Act  of               Parliament.   The  Act draws  a  line  between               contracts for more than pound 50 and contracts               for  pound  50 and under.  Contracts  for  not               more than pound 50 need not be sealed and  can               be  enforced  whether  executed  or  not   and               without reference to the question whether they

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             could  be enforced at common Law by reason  of               their trivial nature.  But contracts for  more               than  pound 50 are positively required  to  be               under seal; and in a case like that before us,               if  we were to hold the defendants  liable  to               pay for what has been done under the contract.               we  should in effect be repealing the  Act  of               Parliament  and  depriving the  ratepayers  of               that  protection which Parliament intended  to               secure for them." It  a pears that in England there is a  distinction  between contracts   made   under  the  Common   Law   by   Municipal Corporations which may not be under seal, and contracts made by  them in pursuance, of a statute like the one  now  under consideration.   The following except from the  Judgment  of Brett,  L. J., quoted in the judgment of Lord Blackburn,  is instructive from this point of view:               "I should wish to say that I have come to  the               same conclusion after weeks spent               618               in attempting  to Come to another.  However, I               come  to the same conclusion as  Lord  Justice               Lindley and Lord Justice Cotton in this  case,               upon  the  ground that, although  this  was  a               municipal corporation, yet in the  transaction               in  question,  it  was acting as  a  board  of               ’health,  and that therefore it was  bound  by               the  statute, and that as to the  construction               of  that  statute  we are bound  by  a  former               decision  of  this Court which held  that  the               enactment  as to the necessity for a  seal  is               mandatory and not merely directory". The  same  distinction  is  very we I  brought  out  in  the following observations of Lord Bramwell at page 528 :               "As I think-the case turns on the construction               of   the  statute,  I  have  not  thought   it               necessary   to  go  into  the   doubtful   and               conflicting cases governed by the Common Law." It  is  noteworthy that neither of the two  cases  discussed above was even referred to at the bar or by their  Lordships in the course of their judgment, though many cases appear to have  been  cited at the bar.  That was apparently  for  the reason  that  these earlier cases, rather ancient,  did  not turn  upon the construction of any statute like the  one  we are now considering. Thus, the provisions of s,47 being mandatory and not  merely directory  the  question which now has to be  determined  is whether  those provisions are inconsistent with any  of  the provisions  of the         Act, as contemplated by s. 38  of the Act.  It has not been contended before us that there  is anything in the Act which in terms is inconsistent with  the provisions  of s. 47 of the Municipal Act.  But it has  been contended  that  such an inconsistency is implicit   in  the terms  of  the Act as they appear from  the  definitions  of landlord’,  ’premises’ and ’tenant’.  In our opinion,  there is no substance 619 in this contention.  We have already pointed’ out that those definitions  postulate  the’ relationship  of  landlord  and tenant which can come into existence only by a’ transfer  of interest in immovable property, in pursuance of a  contract. These  definitions  are entirely silent as to  the  mode  of creating   the   relationship  of   landlord   and   tenant. Therefore, the question is whether the. complete silence  as to  the mode of creating the relationship  between  landlord

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and  tenant  can  be construed as making  a  "provision,  by implication,  inconsistent, with the terms of s. 47  of  the Municipal  Act.   In our opinion, the mere absence  of  such provisions  does  not  create  any  inconsistency  as  would attract  the application of S. 38 of the Act.  It  is  note- worthy  that  the provisions of s. 38 of the  Act  were  not relied  upon  either in the High Court or in  the  Court  of first  instance.   In those Courts great reliance  had  been placed  on  the doctrine of part performance which  has  now been  crystalised in s. 53A of the Transfer of Property  Act (IV  of  1882) and which in terms  cannot  apply.   Rightly, therefore,   no  reliance  was  placed  on  behalf  of   the appellants  on the provisions of s. 53A of the  Transfer  of Property Act. On  the  question  of the validity of the  transfer,  it  is necessary to consider the further argument raised on  behalf of the appellants, namely,, that the power of the  Committee is contained in s. 18 and not in s. 47 of the Municipal Act, which  only  lays down the mode of executing  contracts  and transfer  of property, as appears from the marginal note  to the section i. e., the words "Mode of Executing Contract and Transfer  of Property".  It is true that s. 18 contains  the power to enter into a contract and to transfer any  property held  by the Committee, but s. 47. lays down-the’  essential conditions  of  the exercise of the Power and  unless  those conditions are fulfilled there could be no contract ’and  no transfer  of property.  In this connection, it  was  further argued that sub s. (3) of s. 47 only 620 says  that a, contract or transfer of Property  contemplated in  the section executed otherwise than in  accordance  with the  provisions of the section shall not be binding  on  the Committee.   Therefore,  the argument further  is  that  the contract  may not be binding of it the Committee but  it  is not  void.   Now,  what is the  legal  significance  of  the expression  shall  ’not be binding on  the  Committee"?   It against the Committee, and it is clear beyond doubt that  an agreement   not  enforceable  in  law  is  void.  It   must, therefore,  be held that.the provisions of s.  47  aforesaid are essential ingredients of the power contained in s. 18 of the Act. The  same argument was advanced in another Act  form,  viz., that  the  effect of s. 47 of the Municipal Act  is  not  to render  the  transactions in question  between  the  parties entirely void but it was only declared to be not binding  an the  Committee.   In  other words, the argument  is  that  a distinction  has  to be made between acts  which  are  ultra vire’s   and  those  for  the  validity  of  which   certain formalities  are. necessary and have not been gone  through. This  distinction assumes an importance where the rights  of third  parties  have come into existence and  those  parties tire  not  expected  to  know  the  true  facts  as  to  the fulfilment  of  those formalities.  That it  is  so  becomes clear from the following statement of the law in  Halsbury’s Laws of England (3rd edition, Vol. 15) paragraph 428 at page 227:               "Distinction between ultra vires and irregular               acts.  A distinction must be made between acts               which  are  ultra  vires  and  those  for  the               validity  of  which  certain  formalities  are               necessary.    In  the  latter  case,   persons               dealing Without notice of any informality  ate               entitled  to  presume omnia  rite  esse  acta.               Accordingly  a company which,  possessing  the               requisite  powers,  so  conducts  it  self  in

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             issuing  debentures  as to  represent  to  the               public that               621               they  are legally transferable, cannot set  up               any  irregularity  in their issue  against  an               equitable  transferee  for value  who  has  no               reason to suspect it." In  this connection, it is, also convenient here  to  notice the argument, that the Committee is estopped  by its conduct from  challenging the ’enforceability of the contract.   The answer  lo  the  argument is that where a  statute  makes  a specific  provision  that a body corporate has to act  in  a particular  manner, and in no other, that provision  of  law being  mandatory  and  not directory,  has  to  be  strictly followed.  The statement of the law in paragraph 427 of  the same Volume of Halsbury’s Laws of England to the’  following effect settles the controversy against the appellants:                "Result  must  not  be  ultra  vires-A  party               cannot  by representation, I any more than  by               other means, raise against himself an estoppel               so as to create a state of things which he  is               legally disabled from creating.  Thus, a  cor-               porate  or statutory body cannot  be  estopped               from  denying  that  it has  ’entered  into  a               contract  which it was ultra vires for  it  to               make.   No  corporate  body can  be  bound  by               estoppel to do something beyond its powers, or               to refrain from doing what it is its duty  to               do...... In  view of these considerations it must be held that  there was  no  relationship  of landlord and  tenant  between  the parties and that, therefore, the applications under s. 8  of the Act made by the appellants had been rightly dismissed by the High Court as incompetent.  The appeals are  accordingly dismissed with costs, one set of hearing fees. Appeals dismissed. 622