# OSMAN FAKIR MOHAMMED DIVECHA v. ALI AKBAR JAVED SADAKYA & ANR

- **Citation:** [1970] 2 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 1969-08-28
- **Bench:** J.M. Shelat, C. A. Vaidialingam, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/osman-fakir-mohammed-divecha-v-ali-akbar-javed-sadakya-anr-4751
- **Pages:** 6

## Headnote

Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (57
of 1947)-Part JI, Sections 6(1), 18(1)-Pre,..,ises let for construction of
"buildings of every description howsoever''-If premises let for purposes
in s. 6(1)-Applicability of s. 18.
Certain non·agricultural lands in Bombay snburban district were let
out to the appellants by their owner. By an indenture of lease the owner
demised ~e lands to the respondents.
The lease deed empowered the
lessees to construct upon the lands "buildings of every description howsoever". It prol)ibited the lessees from mortgaging, assigning or creating
any charge on the lands or on the buildings that they may choose to erect
thereon, but provided that the lessees could take construction loans from
prospective tenants of such buildings. There was a further stipulation that
the lessees should pay the le"sor a certain sum as advance. for the oiJservw
ance and performance of the covenants of the deed and the amount was
to bo deducted from the rent payable. The respondents filed suits under s.
13 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947, for eviction of the appellant and for recovery of possession of the
lands.
The appellant resisted the suits on the ground that part of the
consideration payable under the lea,. was prohibited under s. 18( I) of
the Act, that the lease was, therefore, illegal and void and could not be the
basis for the respondents' right to recov~ possession under s. 13 (1). The
lower courts rejected this contention.
On the question whether the lease attracted section 18(1) of the, Act,
HELD : Section 18(1) had no application. [121 A-BJ
Part II of the Act, which contairis s. 18, applies only to premises "let
for" the purposes mentioned in s. 6(1) namely. "resideilce,
education,
business. trade or storage."
It is the purpose of the lease and not any
future choice of a lessee which determines the application of Part JI. That
is the clear and obvious meaning of the words
"let for" ins. 6(1).
[121 A-B, D; 122 BJ
B
c
D
E
F
In the present case the purpose for which the lands were demised clearly
G
was for constructing: "buiJdings of any descri9tion howsoevef" and not
for constructing buildings for "residence, education, business,
trade or
storage" within the meaning of s. 6(1). Because s. 18(3) permits construction Joans in resoect of residential buildings only and the lease deed
provided for taking of construction loans, it does not follow that the purpose of the lease was for erecting residential bvildings. The provision for
taking construction loans is in the lease deed only as an exception to the
covenant against the lessee mortagaging, charging or assigning the demised
H
land or the buildings which may be, erected thereon and not for laying
d6wn the purp0<e for which the l~nd was demised. Although the expression "buildings of any description· howsoever" may include buildings for
......
A
OSMAN 1'. ALT AKllAR (She/at, J.)
I I 9
rc~idcncc the
!"-:"~1..·ci.; n1ny choose not tll put up any structure for nny of
the purposes 111cntionc<l ins. 6(1). [1:?2 C-Gl
,\/rs. /)o\·,,ihai .T,·cj,•ehhf'Y \'. Khe111cl1n11tl Crir11111tt!, r196:?] 3 S.C.R. 9:?1.
1.•xpl;1i1H:d.
Cil'i/ A/>/i<"llate .fllri.wlicrio11: Civil Appeal No. 16-19.of 1967 ..
B
of 1%7.
c
D
E
F.
G
JI
'
'
Appeal by 'pccial. leave. from the judgment nnd decree dated
Scptcmhcr 22. 23. 1967 I.if the Bombay High Court in Special
( 'ivil Applicaiion No. 2293 of 1966.
'
H. R. (•oklwl<". Janrndra Lal, nnd }3 .• R Agarwa/a, for the·
:ippcll,rnt.
S. T~'Nc•sui. A. G. Pctrikh. and P. C. 11/wrtari, for the respond~nt:-..
-
The Jud~mcnt of the Cowt \vas delivered by
Shel~!. J.
Jn or about J 951. certain portions QJ plots Nos.
254 and 255. situate at Bandra in Greater Bon1oay, were Jet out
to the appellant by their owner, Louis Fernandes.
The appeJ.
lant thereafter constructed on those ROrtions certain structures
wherein he has since been residing and carrying on business. By
an Indenture of Lease dated Dece

## Text

OSMAN FAKIR MOHAMMED DIVECHA
v.
ALI AKBAR JAVED SADAKYA & ANR.
August 28, 1969
[J.M. SHELAT, C. A. VAIDIALINGAM AND I. D. DUA, JJ.]
Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (57
of 1947)-Part JI, Sections 6(1), 18(1)-Pre,..,ises let for construction of
"buildings of every description howsoever''-If premises let for purposes
in s. 6(1)-Applicability of s. 18.
Certain non·agricultural lands in Bombay snburban district were let
out to the appellants by their owner. By an indenture of lease the owner
demised ~e lands to the respondents.
The lease deed empowered the
lessees to construct upon the lands "buildings of every description howsoever". It prol)ibited the lessees from mortgaging, assigning or creating
any charge on the lands or on the buildings that they may choose to erect
thereon, but provided that the lessees could take construction loans from
prospective tenants of such buildings. There was a further stipulation that
the lessees should pay the le"sor a certain sum as advance. for the oiJservw
ance and performance of the covenants of the deed and the amount was
to bo deducted from the rent payable. The respondents filed suits under s.
13 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947, for eviction of the appellant and for recovery of possession of the
lands.
The appellant resisted the suits on the ground that part of the
consideration payable under the lea,. was prohibited under s. 18( I) of
the Act, that the lease was, therefore, illegal and void and could not be the
basis for the respondents' right to recov~ possession under s. 13 (1). The
lower courts rejected this contention.
On the question whether the lease attracted section 18(1) of the, Act,
HELD : Section 18(1) had no application. [121 A-BJ
Part II of the Act, which contairis s. 18, applies only to premises "let
for" the purposes mentioned in s. 6(1) namely. "resideilce,
education,
business. trade or storage."
It is the purpose of the lease and not any
future choice of a lessee which determines the application of Part JI. That
is the clear and obvious meaning of the words
"let for" ins. 6(1).
[121 A-B, D; 122 BJ
B
c
D
E
F
In the present case the purpose for which the lands were demised clearly
G
was for constructing: "buiJdings of any descri9tion howsoevef" and not
for constructing buildings for "residence, education, business,
trade or
storage" within the meaning of s. 6(1). Because s. 18(3) permits construction Joans in resoect of residential buildings only and the lease deed
provided for taking of construction loans, it does not follow that the purpose of the lease was for erecting residential bvildings. The provision for
taking construction loans is in the lease deed only as an exception to the
covenant against the lessee mortagaging, charging or assigning the demised
H
land or the buildings which may be, erected thereon and not for laying
d6wn the purp0<e for which the l~nd was demised. Although the expression "buildings of any description· howsoever" may include buildings for
......
A
OSMAN 1'. ALT AKllAR (She/at, J.)
I I 9
rc~idcncc the
!"-:"~1..·ci.; n1ny choose not tll put up any structure for nny of
the purposes 111cntionc<l ins. 6(1). [1:?2 C-Gl
,\/rs. /)o\·,,ihai .T,·cj,•ehhf'Y \'. Khe111cl1n11tl Crir11111tt!, r196:?] 3 S.C.R. 9:?1.
1.•xpl;1i1H:d.
Cil'i/ A/>/i<"llate .fllri.wlicrio11: Civil Appeal No. 16-19.of 1967 ..
B
of 1%7.
c
D
E
F.
G
JI
'
'
Appeal by 'pccial. leave. from the judgment nnd decree dated
Scptcmhcr 22. 23. 1967 I.if the Bombay High Court in Special
( 'ivil Applicaiion No. 2293 of 1966.
'
H. R. (•oklwl<". Janrndra Lal, nnd }3 .• R Agarwa/a, for the·
:ippcll,rnt.
S. T~'Nc•sui. A. G. Pctrikh. and P. C. 11/wrtari, for the respond~nt:-..
-
The Jud~mcnt of the Cowt \vas delivered by
Shel~!. J.
Jn or about J 951. certain portions QJ plots Nos.
254 and 255. situate at Bandra in Greater Bon1oay, were Jet out
to the appellant by their owner, Louis Fernandes.
The appeJ.
lant thereafter constructed on those ROrtions certain structures
wherein he has since been residing and carrying on business. By
an Indenture of Lease dated December 5. 1958 the said Louis
Fernandes demised the whole of the said plots in favour of the
respondents for a period of 99 years commencing from December
I, 195.8 on a mqnthly rent of Rs. 40 l and on the terms and
conditions contained in the said Ti.denture.
Cl. 2(e) of the said
Indenture provided that the le~sees thereby covenanted with the
lessor "not to assign. mortgage or charge the demised premises
or the building or buildings or any structures to be hereafter
crec!J!d without first obtaining the consent of the lessor and such
consent shall not be refused by the lessor if it is bona fide."
The
said sub-clause. however, permitted the lessee to take construction loans from prospective tenants of a building he may erect on
the said demised land and to execute i1. favour of such tenant or
tenants agreement or agreements in form prescribed by the ·Rent
Control Act.
No such form. we were inf.)l'mcd, has been provided by the Act. Cl. 4 provided that on or before the execution
of the said Indenture the lessee should advance to the lessor a sum
nf Rs. I O.OOO/-"fo1: the ·.ibservance and performance of the covc11an1' and stipulations on the pan of the lessees hereinbcfore
contained and which .amount shall be a charge on the said land
and premises hereunder mentioned and the lc~scir shall alloll' the
lessees to deduct every month a stun of Rs. JOO/- (Rupees one
hundred 1 out of the rent payable by the lessees to the lessor and
•
120
SUPREME COURT REPORTS
( 1970]2 S.C.R.
credit the same towards the liquidation of this deposit amount till
the whole of this deposit amount is fully paid of".
Cl. 8 empowered the lessees "at all times and from time to time hcreatter
to construct and .erect upon any part of the land hereby demised
buildings of every description howsoever but subject to the rules
and regulations of the Municipality and Government. ..... ".
The respondents thereafter filed two suits in the Small Cause>
Court at Bombay for eviction of the appellant and '.or possession
of the said portions of the said two plots relying on s. 13 of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
57 of 1947 (hereinafter referred to as the Act) which entitles a
landlord to recover possession of the premi,es let out to a tenant
where the premises are land and such land is reasonably and
bona ffrle required by the landlord for the erection of a new building.
The appellant resisted the suits inter a/ia on the ground
I.which is the only ground which now survives in this appeal) that
part of the consideration payable under the said lease was prohibited under s. 18 of the Act, that the lease was, therefore, illegal
and void and could not be the basis for the respondents' right to
recover possession under s. 13(1).
The Trial Court, as also the Appellate Bench of the Small
Causes Court, negatived tt,;s contention on 3 grounds; (1) that
the said lease did not fall within the scope of Part II of th.e Act
which contains s. 18, (2) that assuming that it did, the advance
payment of Rs.10,000 did not fall within the mischief of s. 18(1),
and (3) that even assuming that the lease fell within Part II of
the Act and further assuming that the said Rs. 10,000/- were
within the mischief of s. 18 (1) the provisions of s. 18 ( 1) affected
the lessor but did not make the lease invalid. Aggrieved by this
decision the appellant went to the High Court by way of a
writ petition under
Art. 227 of the Constitution.
The High
Court dismissed the writ petition agreeing with the Appel!ate
Bench on the first and·the second grounds, but leaving the third
ground undetermined as in its opinion it was unnecessary to decide
it in the view it took on the first and the 8econd grounds.
Hence
this appeal by special leave.
Mr. Gokhale raised the very same contention which the appellant raised unsuccessfully in th.e Small Causes Court and the Hi~h
Court. The question, therefore, for determination is, whether the
said lease falls within the scope of Part II of the Act, for, if it does
not, obviously it would not attract the provisions of s. 18 ( 1) which
is contained in that Part.
The leased premises being land, admittedly not used for agricultural purposes and being situated in the Bombay Suburban
District, are clearly premises under s. 5 (8) of the Act.
But so far
as Part II is concerned, s. 6 (1) provides that this Part shall apply
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OSMAN v. ALI AKBAR (She/at, J.)
121
only to premises "let for residence, education, business, trade or
storage". As the lease was not for any of the purposes set out in
s. 6(1), Part II of the Act, and thereiore, J. 18(1) would obviously
have no operation.
In Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal &
Ors. ( 1 ) the appellant had taken on lease, as in the present case,
an open land and the question was whether, when such land is
being leased not to be used for the purpose of residence in its
condition of open land but to be used for the purpose of residence
after putting up structures thereon, the letting of land can be said
to be letting for residence. The leases there mentioned that the
lessee will construct buildings suitable for residential, business,
industrial or office purposes.
It was held that the leases fell
under s. 6(1), and therefore, were within the ambit of Part II
of the Act, and consequently, the Small Causes Court at Bombay, as the Rent Court under the Act, and not the ordinary civil
court, had jurisdiction to try a suit for possession.
Thus, the
question whether Part II of the Act applies to particular premises
or not depends on the purpose for which such premises are leased.
In the present case no difficulty arises, for, cl. 8 of the lease
in clear terms provides that the lessees were to be at liberty at
all times arid from time to time to construct and erect upon any
part of the demised land buildings of every description howsoever.
Though the lease was in respect of open land except to the extent
thereof on which the appellant had built structures, the purpose
for which it was demised clearly was for constructing buildings
of any d'e!!cription howsoever and not for constructing buildings
for residence, education,. business, trade or storage.
The land
thus demised, though premises within the meaning of s. 5(8),
was not premises "let for residence, education, business, trade
or storage" within the meaning of s. 6(1), and therefore, s. 18(1)
would not apply as was the case i~ Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal & Ors. (1 ) where the open land
was let out for the purpose of putting up structures for residence.
Mr. Gokhale's contention, however, was that s. 6(1) would
apply because .the expression "building of every description
howsoever" would include buildings for residence, and therefore,
the lessees were at liberty under cl. (8) of the lease to construct
residential buildings also. That may be so, but then the lessees
may choose not to put up any structure for any of the purposes set
out in s. 6(1) in which case' if Mr. Gokhale were to re right Part II
would still apply. That cannot possibly be the meaning of s. 6(1).
Properly construed, s. 6(1) must mean that in order that Part II
(I) (1962] 3 S.C.R. 921.
L 1 Sup, C f/70-9.
122
SUPREME COURT REPORTS
[1970] 2 S.C.R.
may apply the premises in question must .be let out for the purposes of residence etc. and then only the leased premises would
be subject to and governed by the provisions of Part II.
The
application of that part cannot have been intended to depend upon
what a lessee may do or may not do. It is the purpose of the
lease and not only future choice of a lessee which determines the
application of Part II. That is the clear and obvious meaning of
1he words "let for" ins. 6(1).
The next argument of Mr. Gokhale was that even though cl.
8 uses the expression "buildinl! of every description howsoever",
the real purpose for which the lease was taken by the lessees was
to construct structures for residence. In support of his argument
he relied on cl. 2 ( c) of the lease which permits the Jessee< to
take construction loans from prospective tenants of the buildings
to be erected by the lessees and urged that since under s. 18 ( 3) the
only construction loans permitted are for financing the construction of residential buildings, the purpose of the lease must necessarily be for erecting residential building or buildings only.
This argument also cannot be upheld, firstly, because the operation of cl. 2(c) relied on by Mr. Gokhale does not deal with nor
is concerned with the purpose for which the land was leased, and
secondly, because the question of taking construction loans can
~rise only if the lessees were to decide to put up building or
buildings for residential purposes and not otherwise, as s. 18(3)
of the Act permits advances from tenants for constructing such
buildings only.
Cl. 2 ( c) in the lease was put in the Indenture to
provide for such a contingency and as an exception to the covem: ;t against the lessees mortgagi~g. charging or assigning the demised land and/or the buildings which may be erected thereon,
and not for laying down the purpose for which the land was
demised.
It is, therefore, neither right nor proper to construe
the purpose of a lease by depending upon such an exception to a
covenant restricting the lessees from mortgaging,
charging
or
assigning the land or the buildings which might be put up thereon.
There is, therefore, no reason to hold that because s. 18(3) permits construction loans in respect of residential buildings only, it
must follow that the purpose of the lease must be held to be one
for erecting residential buildings.
In the view that we take that the leased premises are not premises contemplated by s. 6(1). and therefore, Part II of the Act
cannot apply, the second question decided by the High Court,
namely. that the advance amount of Rs. 10.000/- was not a payment falling under s. 18(1) would not arise.
For that reason,
the third quest'on also which was in the further "1ternative need
not be gone into.
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OSMAN \', .~Li A"RAR (Shela:, J. I
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1°1 ti1e result, the app.:al is dismissed with costs.
The appelB
h1: will not be dispossessed of th~ premises in appeal till November 28. 1969 when he shall hand over to the respomlent quiet and
\'ac<.:nt possession.
Y.P.