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PETITIONER: MRS.  DOSSIBAI N. B. JEEJEEBHOY

       Vs.

RESPONDENT: KHEMCHAND GORUMAL AND OTHERS

DATE OF JUDGMENT: 29/09/1961

BENCH:

ACT: Lease-Open land for construction of residential and business building-Letting,  if for residence  or  business-Subsequent letting of building in absence of a contract permiting  sub- letting--Effect-Bombay Rents, Hotel  and Lodging House Rates Control, Act, 1947 (Bom. 57 of 1947), ss. 6, 15, 25, 28-Part II, Sch. 1.

HEADNOTE: The appellant took lease of an open land for construction of buildings suitable for residential, business, industrial  or office  purposes.  The appellant brought suits in  the  City Civil court, Bombay, for the recovery of arrears of rent  in respect of premises built on the said open land, all  within the city of Bombay thus in the area specified in Schedule  I of  the Bombay Rents, Hotel and Lodging House Rates  Control Act,  1947.  The appellant stated in the Plaint itself  that the  Bombay  Rent Control Act, 1947, did not  apply  to  the dcmiscd premises.  The defendants pleaded that the Rent  Act applied and the City Civil Court had no jurisdiction to  try the suit.  The trial judge held that part II of the Rent Act applied  to the premises and consequently only  the  special courts  specified in s. 28 of the Rent Act had  jurisdiction to  entertain the suit and ordered the plaints in the  suits to  be  returned to the plaintiff, for presentation  to  the proper court.  The Bombay High Court summarily dismissed the appeals  from  the  said orders.  The  point  at  issue  for decision was whether "when a lessee takes lease of open land for the purpose of constructing on it buildings intended  to be  used  for  residence or for business,  this  amounts  to "Letting for residence" or "letting for business". The  appellants’  contention  was  that  as  open  land  not intended to be used, as it is, for residence or business but for construction of buildings for residence or business  was taken  on lease the land was not being let for residence  or business. Held, that the words "let for residence, education, business or  storage" in s.6 of the Bombay Rents, Hotel  and  Lodging House Rates Control Act, 1947, are wide enough to include  a letting for the achievment of these purposes by construction of buildings as also without construction of buildings. Held,  further,  that on the facts of the present  case,  in each  of  these cages, the lease was taken with  a  view  to construct,  buildings  thereon  for  residential,  business, industrial or office purposes and the land let was therefore ’premises’ to                             929 which  under s. 6(1) of the Bombay Rent Act, the  provisions of Part II of the Act applied.

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Vinayak  Gopal v Laxman Kashinath I. L. R. (1956) Bom.  827, approved.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeals Nos. 503 to 506 of 1958. Appeals by special leave from the judgment and orders  dated August  4, 1957, of the Bombay High Court in Letters  patent Appeals Nos. 29 to 32, of 1957. J.   C.   Bhatt,  R.  P.  Bhatt,  R.  A.   Gagrat   and   G. Gopalakrishnan, for the appellants. N.   C.  Chatterjee,  Madhowdas  C. Bhagat  and  Radhey  Lal Agarwal, for the respondents in C. A. No. 503 of 58. Madhowdas  C.  Bhagat  and  Radhey  Lal  Agarwal,  for   the respondents in C. As.  Nos. 504 to 506 of 1958. 1961.   September  29.   The  Judgment  of  the  Court   was delivered by DAS GUPTA, J.-When a lessee takes lease of open land for the purpose of constructing on it buildings intended to be  used for   residence  or  for  business  is  this  "letting   for residence,",  or "letting for business"?  That is the  short question  which arises for decision in these  four  appeals. The  appellant  brought these four suits in the  City  Civil Courts,  Bombay, for recovery of arrears of rent in  respect of  the  premises mentioned in the plaint of  these  several suits.  It is clear under the law that the City Civil Court, Bombay, would have no jurisdiction to try these suits if the provisions of Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. 57 of 1947), which later in  this  judgment  we shall refer to  as  the  "Rent  Act", applied  to  the  permises in suits.  For  this  reason  the plaintiff stated in the plaint itself that this Rent Act did not  apply to the demised premises.  The defendant  in  each case pleaded on 930 the contrary that the Rent Act applied and so the City Civil Court had no jurisdiction to try the suits.  The first issue framed  in  each of these suits therefore was,  whether  the Court  had jurisdiction to entertain the suit.  The  learned Judge  held  that  Part II of the Rent Act  applied  to  the premises  in each of these suits and consequently  only  the special  court,%  specified  in s. 28 of the  Rent  Act  had jurisdiction to entertain the suits and the City Civil Court had no jurisdiction.  Accordingly, he ordered the plaint  in each  of the four suits to be returned to the plaintiff  for presentation to the proper Court.  The plaintiff appealed to the  High  Court  of Bombay but all the  four  appeals  were summarily  dismissed.  The Letters Patent appeals  preferred by the plaintiff from the decision of the Single Judge  were also dismissed summarily.  These appeals have been preferred against  that decision of the Bombay High Court  in  Letters Patent Appeals on special leave obtained from this Court. Under  a.  5,  sub-s.  8 of the Rent  Act  unless  there  is anything  repugnant in the context, "premises" means,  among other  things,  "any land not being  used  for  agricultural purposes." It is’undisputed in these cases that the land  in respect  of which the suits were brought was not being  used for agricultural purposes and so comes within the definition of "’Premises" in s. 5. The provisions of Part If of the Act do not however apply to all  premises which fall within this definition.  Section  6 with  which  this Part II opens provides in its  first  sub- section  that  this  part shall apply to  premises  let  for

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residence,  education, business, trade or storage  in  areas specified  in  Sch. 1. It is subject to a proviso  that  the State  Government may direct that in any of the said  areas, this  Part shall cease to apply to premises let for  any  of the  said  purposes, with a further proviso that  the  State Government  may again direct that in any of the  said  areas this Part shall re-apply to premises let 931 for  such of the, aforesaid purposes.  As there has been  no notification under these provisos affecting the premises  in suit,  we are not concerned with them; nor are we  concerned with sub-S. 1(A) under Which the State Government may direct that  this Part shall, apply to premises let for  any  other purposes.   The four premises in respect of which  the  four suits  were  brought are all within the city of  Bombay  and thus in the area specified in Schedule  of the Act.  In each of these cases we have therefore to examine the, purpose  of the lease and to decide whether it was let for residence  or for  education, business, trade or storage.  The lease  men- tions that the leasee will construct buildings suitable  for residential,  business, industrial or office purposes.   The plaintiff’s case is that as open land is not intended to  be used as it is for residence or business but for construction of buildings for residence or business the land is not being let  for residence or business.  The defendant in each  case contends  that the letting was for residence or business  as that  was  the ultimate purpose of taking  the  lease.   Mr. Bhatt  addressed his arguments to the question  whether  the letting  could  be  said to be for  residence  and  did  not separately  address  us  on  the  question  of  letting  for business  as obviously if the land could not be said  to  be let  for residence it could not also be said to be  let  for business. The  extreme proportion which Mr. Bhatt raised first of  all on  behalf of the appellant is that open land can  never  be let for residence and so. when a. 6 speaks of premises being let  for residence, land as defined in sub-s. 8 (a) of s.  5 is outside the word "premises".  There is, in our  opinion,, no substance in this contention. It  is quite clear that open land as it is can be  used  for residence and so there is no reason to think that open  land was  not  intended to be included in ,premises"  when  a.  6 speaks of premises being let for residence. 932 The  more substantial question for consideration is  whether when open land is being leased not to be used for  residence in its condition of open land but to be used for the purpose of  residence  after  constructing  buildings  thereon,  the letting  of  the open land can reasonably be  called  to  be letting for residence.  Mr. Bhatt contends that as, what  is to be considered is whether the letting of the open land is, for residence the land cannot be said to be for residence if not  the open land, but, something constructed on  the  open land is to be used for residence.  In such a case, says  Mr. Bhatt,  the land is let for construction of a  building  and not  for residence.  We are unable to accept this  argument. Land  can  be  used for many purposes.  It  maybe  used  for agriculture;  for  residence of human  beings;  for  keeping cattle or other animals; for holding meetings; :-or carrying on  business or trade; for storage of goods; for  supply  of water by excavating tanks, and many other purposes.  Many of these purposes can be achieved on the open land without  the construction  of  any buildings.  But many of  them  can  be better achieved if some kind of structure is created on  the open land.  It seems reasonable to us to think that when the

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Bombay Legislature took particular care to include open land not  being  used for agricultural purposes within  the  word "premises"  and  then went on in the very  next  section  to speak of premises being let for several specified  purposes, it  was thinking of the purposes to which-the land  will  be used irrespective of whether the purpose was intended to  be achieved  with or without construction of a structure.   The intention in mentioning only some purposes, viz., residence, education, business, trade or storage in s. 6 was to exclude land  let for purposes like, keeping of cattle,  (except  in the  way of business or trade), and numerous other  purposes to which the land may be put from the benefit of part II  of the Act. It  seems  to us that when people speak ordinarily  of  land being let for business, they are only                             933 thinking  that  the ultimate purpose behind the  letting  is that  business will be carried on and they are not  thinking whether  the business will be carried on on the land in  its present  state or by the construction of temporary sheds  or by  putting up permanent buildings.  Similarly, when  a  man says  that he will take lease of a plot of land for  storage of his goods, what he has in mind is that by taking lease of the  land  he  will achieve the  object  of  storing  goods, irrespective of whether for such storage he will have to put up  a  structure or not.  In the same way., we  think,  that when  land  has  been let for the  purpose  of  constructing buildings  for residence, people will say that it  is  being let  for residence, just as they will say that the land  has been  let for residence if the lessee intends to use  it  as caravan site so that the people may live on the open land in caravans. In  our opinion, the words ’,’let for residence,  education, business,  trade  or storage" are wide enough to  include  a letting   for  the  achievement  of  these   purposes   with construction  of buildings as also without  construction  of buildings. But, says Mr. Bhatt, look at sub-a. (i) of s. 15 of the Rent Act  which is in this very part II and that will  show  that the  Legislature could not have intended land which  is  let for the construction of buildings for residence to I" within the phrase ,’premises let for residence".  Section 15 of the Act  after  its  amendment by Bombay Act 49  of  1959  reads thus:-  "Notwithstanding anything contained in any law,  but subject  to  any contract to the contrary, it shall  not  be lawful, after the coming into operation of this Act for  any tenant  to sublet the whole or any part of the premises  let to  him  or to assign or transfer in any  other  manner  his interest  therein." It may be mentioned that as the  section originally  stood the words "but subject to any contract  to the contrary" were not there.  When the amending Act 934 of  1959  introduced  these  words  the  amendment   further provided  that  these words shall be deemed always  to  have been there.  Even after the amendment, it remains  unlawful, where  there is no contract to the contrary, for any  tenant of  premises  to sublet the whole or a by part  thereof  Mr. Bhatts argument is that in every case where there is no such contract to the contrary the difficulty that will result  if land  let for construction of residential buildings be  held to be premises let for residence within the meaning of a. 6. is  that after the building is constructed the  lessee  will not be able to sublet the building or any portion of it;  so that in many cases where the real purpose of taking the land is  for  the construction of building for  letting  out  the

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same,  that  purpose  will be defeated.   This  argument  as regards  the  difficulty in the matter of  letting  out  the building  constructed  on the land on which lease  has  been taken was more plausible when the saving phrase "but subject to  any contract to the contrary" did not form part  of  the section.   Now, however, the cases in which such  difficulty will arise, if at all, would be few and far between; for, it is  reasonable to expect that when taking lease of land  for the  construction  of  building intended to be  let  out  to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let  out  the building.  Assuming that there  may  be  cases where  the contract of lease does not contain any such  term and  assuming  further that it will not be  lawful  for  the lessee  of the land to let out the building  constructed  by him,  the probability of such difficulty in some cases,  can be  no  reason  to  out down  the  ordinary  and  reasonable connotation of the words ,-let for residence" in a. 6. It  ’is unnecessary for us to decide whether if there is  no contract to the contrary, s. 15 will really stand in the way of a lessee of the land letting out buildings constructed by him, on such land.  We may say however that there is in  our opinion 935 much  force  in  the argument which found  favour  with  the Bombay High Court in Vinayak Goapl v. Laxman Kashinath  (1), where  the very question, which.is now before us  arose  for decision, that the bar of s. 15 will operate only in the way of  letting out the land of which lease has been taken,  but will   not  stand  in  the  way  of  letting  the   building constructed on the land. In  that case the Bombay High Court held that where land  is leased  for  the purpose of construction  of  buildings  for residence the land is "let for residence" within the meaning of  s. 6 of the Rent Act.  Mr. Bhatt devoted a  considerable part of his argument to persuade us that some of the reasons given  in that judgment do not stand scrutiny.  We think  it unnecessary however to examine whether all the reasons given in the judgment are correct.  For, as already indicated, the words  "’let for residence" on a proper  construction  would cover  the case of open land being let for  construction  of residential  buildings and so the conclusion reached by  the Bombay  High  Court in Vinayak Gopal’s Case(1)  is,  in  our opinion, correct. It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the  sub-lessee if and when on the terms of a particular lease the  building ultimately vests in the owner of the land nor as to what may happen  if and when on the terms of a particular  lease  the lessee  who has constructed the building gets the  right  to remove  the building.  These considerations should  not,  in our  opinion, affect the construction of the words "let  for residence". Turning now to the facts of the present case we find that in each  of  these  cases the lease was taken with  a  view  to construct  buildings  thereon  for  residential,   business, industrial   or  office  purposes.   The  premises  let   am therefore "premises" to which (1)  I. L. R. [1956] Bom. 827. 936 under  s. 6(1) of the Rent Act the provision of part  II  of the Act, apply. The  Trial Court and the High Court were therefore right  in holding   that   the  City  Civil  Court  Bombay,   had   no jurisdiction to try the suits.

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The  appeals  are accordingly dismissed with  costs.   There will be one set of hearing fee for the four appeals. Appeal dismissed.