# The Income T Officer v. Aruind N. Mofatlal

- **Citation:** [1962] Supp. 3 S.C.R. 461
- **Court:** Supreme Court of India
- **Decided:** 1959-09-24
- **Bench:** S. K. Das, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-income-t-officer-v-aruind-n-mofatlal-2392
- **Pages:** 15

## Headnote

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 eviction of
sub-tenant not possib/,e 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),
88. 4, 5( 8), 15.
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 specifications 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
monthly tenancy of the land together with the buildings
standing thereon. It was agreed with them that on the
1962
The Income T
Officer
v.
Aruind N. Mofatlal
Ayyangar J.
19&2
F~bruary 27.
1962
Kanji Monj&
v.
TA, Tf'usluJ oj th1
Pt11t of Bornbo;1
462 SDPRE}fE COURT REPORTS [1962] SUPP.
determination of the tenancy, they , .. ·ould have to remove
such UuiJdings as "'ere standing upon the demised land.
In
1947 Mis. D and 0
assigned rheir right> in the lease to one
R and the appellant K , ... ·hich \.\'as accepted hy tht: trustees.
After due notice in J 9'i6, the Trustees filed a suit for ejectrnent against Rand K, in tl1c Bombay (;ity 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 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
contrar.t to deliver vacant possession
\vas
in1possible of
pcrformanrc and the said irnpos:siliility rendered the clairn of
the plaintiffs incompetent.
field, that once it i!' held that the tenancy \vasjoint a
notice to one of thr joint tenants \vas 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 tlie City Civil Court '"'as co1npetant.
Held, that in view of the definition "premises" in s.5(8) ·
and the events leading to the arncndment of s. 4, the amendment was enacted to cut down by a definition the operation
the word~ "any prendses belonging to the Government or a
local authority" by excluding buildings which \\·ere occupied
ny sub-tenants even though tile 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 >Ub·s. (I) and not sub-s (4) (a) of the
Rent-control Act.
Held,
therefore, if tl1c
Government
or a local
authority
v.:anL<; to evict a person
from the land,
the
provisions of the Bombay Rents, Hotel and Lodging Houses
Rates (Control) Act, 1947, do not come in the way.
For the
same reason, the suit for ejectment docs not have to be filed in
the court of s111all causes, as required l>y a !lent Control 1\ct
but in the City Civil Co"rt.
If the origipa) lessees took on lease not· only the land
but also the building, it is not open to their assignees to
clain1 that the ownership of the Government extended only to
the land and not to the buildings.
If the appellant cannot evict his teilant so as to be able
to remove the building, in exercise of the right conferred on
him, that is _an unfortunate circumstance, 'vhich does not

## Text

3 $.C.R.
SUPREME COURT REPORTS
461
the order of 'tSsessment under s. 34 he had been
saddled with a liability to the extent of his 3/16th
share •in the firm, though this has been partially offset by the credit given to him, obviously wrongly,
of relief under s. 18(5) of the tax deemed to have
been paid by the company on that incomes.
We therefore consider that the appeals must
fail.
They are accordingly dismissed but in the
circumstances of this case there will be no order as
to costs.
Appeals dismissed.
KANJI MANJI
v.
THE TRUSTEES OF THE PORT OF BOMBAY
(S. K. DAS, M. HIDAYATULLAH and J. c. SHAH, JJ.)
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 eviction of
sub-tenant not possib/,e 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),
88. 4, 5( 8), 15.
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 specifications 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
monthly tenancy of the land together with the buildings
standing thereon. It was agreed with them that on the
1962
The Income T
Officer
v.
Aruind N. Mofatlal
Ayyangar J.
19&2
F~bruary 27.
1962
Kanji Monj&
v.
TA, Tf'usluJ oj th1
Pt11t of Bornbo;1
462 SDPRE}fE COURT REPORTS [1962] SUPP.
determination of the tenancy, they , .. ·ould have to remove
such UuiJdings as "'ere standing upon the demised land.
In
1947 Mis. D and 0
assigned rheir right> in the lease to one
R and the appellant K , ... ·hich \.\'as accepted hy tht: trustees.
After due notice in J 9'i6, the Trustees filed a suit for ejectrnent against Rand K, in tl1c Bombay (;ity 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 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
contrar.t to deliver vacant possession
\vas
in1possible of
pcrformanrc and the said irnpos:siliility rendered the clairn of
the plaintiffs incompetent.
field, that once it i!' held that the tenancy \vasjoint a
notice to one of thr joint tenants \vas 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 tlie City Civil Court '"'as co1npetant.
Held, that in view of the definition "premises" in s.5(8) ·
and the events leading to the arncndment of s. 4, the amendment was enacted to cut down by a definition the operation
the word~ "any prendses belonging to the Government or a
local authority" by excluding buildings which \\·ere occupied
ny sub-tenants even though tile 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 >Ub·s. (I) and not sub-s (4) (a) of the
Rent-control Act.
Held,
therefore, if tl1c
Government
or a local
authority
v.:anL<; to evict a person
from the land,
the
provisions of the Bombay Rents, Hotel and Lodging Houses
Rates (Control) Act, 1947, do not come in the way.
For the
same reason, the suit for ejectment docs not have to be filed in
the court of s111all causes, as required l>y a !lent Control 1\ct
but in the City Civil Co"rt.
If the origipa) lessees took on lease not· only the land
but also the building, it is not open to their assignees to
clain1 that the ownership of the Government extended only to
the land and not to the buildings.
If the appellant cannot evict his teilant so as to be able
to remove the building, in exercise of the right conferred on
him, that is _an unfortunate circumstance, 'vhich does not
serve to entitle him to defeat the rights of Pact Authorities.
-
3 S.d.R. SUPREME COURT REPORTS
463
Quero :-The Port Trust Authorities, whether c.an evict
the sub-tenants ?
·
Bhatia Co-operative Housing Society Ltd. v. D. C. Patel,
(1953) S.C.R. 185 and Ram Bhagwandas v. Bombay Corporation, A.I.R. 1956 Born. 364, referred to.
.
CIVIL APPELLArE 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. Se:n and/. N. Shroff, for the appellant.
M. C. Seialvad, Attorney General of India, B.
Parthasarthi, J.B. Dadachanji, 0. 0. Mathur and
Ravinder Narain, for the respondents.
1962. February, 27. The Judgment of the Court
was delivered by
I96B
Kanji Manji
v.
The Trustees o/Thl
Port of Bombay
HrnAYATULLAH, J.-This appeal arises out of a
Hidayatul/oh J.
suit tried in the Bombay CityCivilCourt 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,
Born bay. and for poss~asion of the land. There
was a 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 and to deliver
vacant possession thereof.
An appeal wa.s 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
19~2
Knnji~Manji
••
'Tlte . ·rn1stee r of 1 ht
Porl of Bornhay
idayalul/aA J,
464 StJl>REME COURT REPORTS [1962] SVPP.
were trading in pitrtncrship under the name and
style of :\fancherji Vadilal and Company. This lease
was for a term of l 0 ·'ears commencing from
December I!, HJ23. · 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 Rs. 633-5-4 was payable on
the first day of every month.
The lessees were
also to p&y all rates, taxes, assessments, etc.
Ono
of the covenants of the leaso was that the leBBees
would, at their own expense and during the first six
months period, construct upon the said piece of land
buildings for us as bullock stabhis and offices according to the specification given to them by tho s&id
Trustees and to be approved by them. It was provided, inkr alia, that upon the expiration of the
term, if the lessees had observed and performed all
the co.vonants, they"would ht' 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 peri.od of
throe 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 moriths from the expiration
of the t!lrm and within like peirod 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 bolong to the Trustees, who would be entitled to remove them and to
clear, Jovel 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 l l, 1942, the Trustees of tho Port
of Bombay granted to Moroshwar Narayan Dhotre
and Dinshaw l~ustomji Ogre, carrying on busineBB
under the name and style of Messrs.
Dinshaw
and Company and their respective heirs, executors
a s.c.:R.
SUPREME COURT REPORTS
485
administrators and assigns, a monthly tenancy of
the land together with the buildingo standing thereon and all the rights, easem0nts and a ppurtenances 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
writting, 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 here-
. by· created or in the event of the ;renants
becoming en tit led to remove the buildings ..
standing on the demised land at the expira,
tion
or sooner
determination
of
the .
tenii.ncy
hereby
created
pursuant
to
the proviso in that behalf hereafter con-.
tained to peaceably leave and yield up the
demised laud cleared and levelled to the.
satisfaction in all respects of the Trustees."
The provisos, inter <ilia,
include the following
covenants binding the lessees :
"(2) Either party to \chese 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
created in accordance with proviso No. 2 herein before conta.ined 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
1962
Kanji Manji
; v4
·,
The Truiiees·oJ The
f:or:t of BomPdy
HidayatullahJ.
1161
Ir, nji M OJ!ji
••
n, r,..,,,,. ofT/i,
p.,, of Bamb9
Hicia,otuJ/aA I.
466 .SUPREME cOURT REPORTR (1962] SUPP.
of this tenancy and shall have performed and
observed all the covenantH on the part o(
the Tenants and the conditions herein contained or referred to."
On February 28, 1947, Morcshwar Narayan
Dhotre and Dinshaw Rustomji Ogra assigned their
rights in the lease to Ruμji Jeraj and Kanji Manji
who, according to the deed of assignment (Ex.D)
paid Rs. 22,250/· to the assignor~. and this assignment appears to have been accepted by the lessors.
On January 25, I 956, the Trustees of the port of
Bombay sent a notice to Rupji Jcraj and Kanji
Manji requiring them to vacate the prumiscs and
deliver vacant and peaceful JlOfHession of tho
land on :February 29, 1956.
This notice was not
oomplied with, and tho suit was filed for their eject·
ment, as stated already. In the plaint, tho first
relief claimed was that "tho defondant be ordered
and decreed to forthwith deliver vacant and pea.ccful possession of tho 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, Muzagaon Sewri Hoclama.tion
Estate, Bombay, admcasuring 5066 6/9 square
yards or thereabouts bearing Cadastra.l
Survey No. 272/145 of PareJ.Sewreo Division.'
The suit, as stat<,d was filed against Loth Rupji Jeraj and Kanji Manji, but lator, the plaint was
a.mended 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, 195'3 was invalid, inasmuch as
it had heen served only upon one of the lessees
(Kanji M~nji) and not upon the heirs and legal representatives of Rupji J eraj.
He also contended
___..
3 S.C.R. SUPREME cOURT REPORTS
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 s. 4, sub-s. 4 (a) of this
Act which, he said, applied to him and not subs. (1) of the same section. He contended tha.t, in
view of the prohibition contained in the Act, he
could not evict his sub.tenants and that the contract that he must deliver vacant possession was
impossible of performance, and the said impossibility rendered the claim of the plaintiffs incompetent.
All. these pleas were found against the appellant. It was held that the tenancy was a
joint
tenancy that a notice io 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 t1·ial Judge held that the present
agreement was enforceable, inasmuch as this case
was governed by sub·s. ( l) and not sub·s. 4 (a) of
s. 4 of the Act.
For the 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 pretniees as joint
tenants. ·The exact words of the assignment were
that " ...... the Assignors do and each of them doth
hereby assign and assure with the Assignees as
Joint Tenants ...... ". The deed of assignment was
approved and accepted by the Tmstees of the l' ort
of Bombay, and Rupji Jeraj and the appellant
must be regarded as joint tenants. The trial Judge
I96S
Kanji Manji
V,
The Tntslets nj Thi
Port of Bombay
Bidoyotulhh J.
1962
K01iji M anji
y.
The Truslus of I he
Porl oJ Bombay
-
llUl•.JGIUll•h J.
468 SUPREME COURT REPoRTS [1962) SUPP.
therefore, rightly held
t.h~m 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 rcaso11
was also good.
Mr. R. 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 t.his case centres
round the applicability of the Bombay Rents, Hotel
and Lodging Houses Rates (Control) Act, 194 i (shortly called the Hent Control Act in the judgment)
to tho present suit, and from that also arises tho
quostiou 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. Vnder the Rent
Control Act, the word 'prcmisos" is defined by s.5(8)
inter alia, as follows:
''Premises" means-
(a)
any land not being used for agricultural
purposes.
The Act, prior to its amendment in l 953
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 a;; 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 premiaes let to the Government or a local authority ...•.. "
This sub-section
was considered by the Born bay
....
!) ,
3's.c.R.
SUPRE~fE COURT REPORTS
469
'
JI
'
' 'I
'
H;igh Gourt in a case, which
was brought up in
appeal to this Qourt by special leave. 'rhe judgment
of, this Court 1 is reported in Bhatia Go-operative
Housing Society, Ltd. v. D. G. Patel('). In that case,
building sites were auctioned in 1908 by the City
Improvement Trust, Bombay.
One of the· conditions of the sate was that tbe bidder sh"Ju!J
construct a building, on the site, of a certain- .\faluo and
according to a plan approved by the City Imp~pve
ment Trust.
One Sit·aram Laxmf\n was the highest
bidder' and he constructed a building, as ag-reed.
Hp w:;is then gra,.nted a lease of the land together
w1~li phe building for 999
years.
Subsequently
in lp~5, the Bomoay Municipality succeedtd the
City Improvement Trust, and the Bha.tia Co-opfrative Housing
Society Ltd. acquired the less'ee's
interest,
A suit was filed by the Co-operative Society against· its own tenants in the Bombay City
Civil'Court. Tlie plea was that the suit ought to
.have been filed in the Court of Small Cm1ses, as
required by the Rent Control Act.
Tho
plaintiff
reFeC! upon sub-s. (l) of s. 4 to show that tho Act
!iid not apply 'to suoh a suit.
This con tcntion of
the plaintiff was accepted by the Trial· Jnclge, who
decreed the claim. The
Bombay
High, Conrt,
however,. on appeal, held that sob-s.(l) of s. 4 did
not apply, and that as between the Co-:iper11tive
Society and its sub-tenants, the suit was governed
'by the· Rent Control Act an\} ought to go before
the 'court of Small
Causes.
The
High
Court,
therefore ordered that tbe plaint be returned for
pres~ntation to the proper Court.
,
.This •Court, on appeal
by special
leave,
reversed the decision of the High Court, n,nd
restored that of the Trial J uclge.
This Court
poihted otit that sub's. ( 1) of's. 4 had three parts, viz.
"( l)
this Act i;hall not. apply to _premi~e~ belonging to-the Government or a local
. ·autlroi'ity;
\I) [19.53j,8. C. R .• 1q~.
19fil
Kanji Manji
l
t.l
lty,t\
•
T"1'#TfriStelB"d1 Tit 1
Po1t--of B ombc.y
H iJl'l.fa!ulfob .1.
1962
Kanji lltm;i
v.
'Fht T1usltts of Tiu
I'o1t of Bom•ts)
lliria~Yt1ful/ah J,
4iO SUPREME C0URT REPORTS (1962] SUPP.
( 2) this Act shall not apply as against th<J
Governme11t
to any tenancy or other like
relationship created hy grant from the Government in reHpcct of premiseo taken on lease or
rcquiaitioned by the Government; and
(3) thi8 Act shall apply in respect of pre·
mises let out to the Government or a locrd
authority."
This court further held that• the first part of the
sub-section mentioned as part No.( I) a hove had
no reforence to anv l-l·nanc\' or other like relationship as in the
l~tter pa;t, 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. Reason;; were given by this Court
why it thought th1tt this exemption was general
and the immunity
ab~olute. Into thesn reason8
we arc not now required to go.
As between the
Bombay llfunicipnlity and the lessee, it. was held
that tho land 1md the
buil<lin~? bPlongcd to the
former as owners an~l nol to the lessee. This Court,
therefore, observed at p. l ll6:
"The trut-h is that the lessor after tho
building was el't'Clcd b,-,cn,me the owner of it
and all the time thereafter the demised premises which include the
building
have
belonged to him subject to the right. of enjoyment of tho lessee in terms of tho lease."
The Act \\'RS thus held not to apply to such suits,
and
the ord"r of the High Court was reversed.
At first, an Orrlinance and
later, an Act
were passed to nullify the effect of this ruling by
the addition of sub-s.4(a).
Th11t sub-section now
reads as follows :
"(4)(a).
The
oxpresaion
"premises
•
•
-
3 S.C.R. SUPREME COURT REPORTS
471
b,Jonging to the Government or a local authority" in sub-section ( 1)
~hall, notwithstanding anything contained in the said subsection or in any judgment, decree or order
of a Court, not include a building erected on
any land held by any person
from the
Government or a local authority under an
agreement, lease or other grant, although
having
regard to the provisions of such
agreement, lease or grant the building so
erected may belong or continue to belong to
the Government
or the local authority, as
the case may be; and
( b) notwithstanding anything contained
in section 15, such person shall be entitled to
create a tenancy in respect of such building
or a part thereof."
The amendment achieved two different things. It
enabled t,ha lessee of the particular kind of building
described in cl. (a) to create sub-tenancies in spite
of the ban against sub-tenancies contained in s.15.
It also exuluded from the operation of sub-s.( l)
the buildingR specified in cl. (a) of the sub-section.
The amendment said nothing about the relationship of the Government or the local authority, on
the one hand, and the lessee, on the other, in
respect of the land. The word "premises" in subs.( I) could mean the land or the buildings or both.
Sub-section (4)(a) dealt only with the buildings,
and dirl not deal with the land, because it used
the word "buildings" and not the more general
word "premises". The import of sub-s.(4)(a) of s.4
was thus limited to buildings, and did not extent
to land.
The sub-section, however, was drafted
somowhat inartistically, and the obscurity of the
]ang.rnge presents some difficulty. The Trial Judge
fol1011·ed a decision of the Bombay High Court
rep 1rted in Ram Bhagwandas v. Bombay Oorparation( I).
fn that case, one Khudabaksh Irani had
(l) AJ.R; 1956. Bom. 364;
•
11162
Kllffjt M 1nji
••
TIN T ru.s lees of Tb,
Purl of Bamhay
Hid•yaMlah J.
K.J1ji ,,f 411ji
• v._
Tiu Tru,.ieei of Th~
Putt uf BitJ//bay
!l iJ.1.Yat:dia11 J.
472 SUPREME COURT REPORTS [1962] SUPP.
taken lease of certain plot,s some 30 yoars back,
and con.structed some structures upon the open
plot, and renter! them out as tenem,Jnts. In 1947,
Iraini said them t'l one l'ya.balli. In l9al, the
llfonicip11l Corporation filed~ suit to eject Tyaballi
. from the plots, and by a 1•onsont decree, Tyaballi
agrred to deliver up vacant awl peaceful posaession of the plots clear of 1dl structurns.
Tyaballi
failed to romovp, the structures, 1tnd the ~unicipal
Corporntion sought to execute t.he decree.
The
tenants thereupon filed a suit under 0. 21, r.103 of
the Civil Procedure Code against Municipal Corporation, but the suit was
dismissed. In the
1tppoal which was filed iu the High Court, it was
con'Jeded that the :\funicipal Corporation was the
own~rs of the plots in question, but protection was
ela.imed
on the basis of sub-s.(4)(a) of s.4 of the
Rent Control Act.
Chagla, C. J. in dealing with
th<.< history of the <tmending A1;t., pDinted out that
tho legisl1iture was seeking to protect by that subsection tenants ·•·ho oecupie<l buildings put upon
land belonging to a local authority, if the buildings
oceupied hy them were construcl{•d under an agreemout under whirh the les;"" was under an obligation
to construct buildiugs.
He pointed out that the
protect.ion of sub-s.(4)(a) wa8 to buildings and not
to land, and thllt the phrase "under an agreement,
lease or other grant" ID'Jrlified not only "held by
any person from Go\'ornm0nt or local authority"
but also "erected 011 any land".
He, therefore,
held that the wordH "erected on any land held by
any porson from a local authority" wero descriptive
of th" building and did 1101 emphasirle the point of
time when the building was erected.
By that
phrase, what was emphasised was "th1tt tho na.turo
of the building must be such as to sati8fy the test
that it was erected 1m ln.nd held by a person from a
local authority and tho kst must be 1tppliod at the
time when the protection is sought.''
•
•
..
·a·s.c.R.
SUPREME COURT REPORTS
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-s.(4)(a) of s. 4 would be available, no matter
how many hands th~ property might have chitnged.
This argument was considered by the learned Chief
Justice, and was rejected.
In 0ur opinion, th0ugh 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 authf,rity was seeking to evict his sub-tenantR,
it was held by the Bombay High Court that the
matter was governed by the Rent Control Act. This
Court held that suh-s.(l) applied and the suit was
not governed by the Rent Control Act. The amendment was enacted to cut down by a. definition th~
operation of the words "any premises belonging t'>
the Government or a local authority", by e:x:cluding
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) c:x:cluded also s. 15, which prohibited subletting by a tenant.
That, however, was limited to
the cas9 of buildings only, and did not apply to the
case of land. In this situation, any action by tho
Government or tho local authority in respect of land
falls to be governed by sub-s.(1) and notsub-s.(4)(a),
and sub-s.( l) prrts the case in relation to land entirely
out of the Rent Control Act. Tim net result, there.
fore, is that if Government or a local anthoritv
wants to evict a person from the land, the provision's
of the Rent Contrul Act do not come in the way.
For the same reason, the suit for ejectment docs uot
have to be filed in the Court, of Small C1msc•s, as
required by the Rent Control Act but in the City
Qivil Court, as has been done in this oase.
1961
. Kanji MtJnji
v.
Th. Truslu• ofTJ,.
Porl of Bo;nbnJ
Hidoyalu/lah ' .
1962
Konji Ma1iji
v.
Tht Tru.stus of The
~ PMt of Bo1nba_;·
..
' l/idayalullah .1.
474 SUPREME OOURT REPORTS (1962] SUPP.
There is one more reason in this case for
reaching the same conclusion, because at. the time of
the lease in l!M'.!, the lessee8, from whom the appe].
]ant claims a.%ignment, wen• given a h·ase not only
of the land but of the buiklings. The wholo tenor
of thu agrecml'nt shows that tho title of the lesse<>s
wa~ precarious. Tt was a monthly tDn:incy liable to
be terminated with a notice umh•r the ·rransfer of
Property Act, and tiwrc wa.s only a grace that the
lessees, when evi«tecl, might rcmr.,·n buildings within
one month of their eviction.
This precarious
interest was obtained by the assignee by an aRsign·
mPnt, :tnd the o;amc thing appli('S to them. If the
original lessees took on k11s' not onl.v the land but
also the lmilding~. it is not. open to th<!ir nssignees to
claim that the ownership of the Oovcrnmf'l1t. extend.
ed only to the 1.111rl ancl not to the buildings.
By
the admissions in the tle"d of lease am! thP 1'arious
elauS<'S, it is quite cloitr that t hcsc buildingR cannot
now he described a~ buildings constructed uncl('r an
agreement with thc Oov<'rrurn,11t..
hut rnther as
buildings belonging to GovPrnm,.nt which wero
leased out with the land but in resp•~ct of which by
a concession, the l"sHoes were ••ntitl.,rl to remnve the
lmildingA within 0110 month after cvietion.
Tn our
opinion, the snit a,; laid for vaeant po:isessinn of the
site :ind in the Cit.v Ci1·il Cuurt wnH romp..tent.
It was contender! tlmt the ~ontrart wns incap·
able of being pmformt·cl, becau8c at l1·ast between
the pres•,nt appellant and hi• suh tenants tlw provi.
sions of the' !tent Control Act would apply, awl
he would not be able to <'Viet tlwm in hi8 turn. It
was, therefore, argll"d that. this impossibility on the
part oft.he appellant to fulfil his nbligationa to
deliver vacant posH.,HAion rendcr~d that portion of
the lease deed um•nforceah1" nnd void. lt is to be
noticed that the appellant docs not claim th1tt by
reason of the imp088ihility the whole of the lease
-
3 3.0 .R.
SUPREME COURT REPORTS
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
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 R(/,m Bhagwandas
v. Bombay Oorporation (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 rigM conferred on him, that is an
unfortunate circum>tance, which does not serve to
entitle him to defeat the rights of the Port Trust
authorities. They are only claiming vacant possession of the site, and under the agreement, if the
appellant does not remove the b11ildings within one
month, then they wmild be entitled to t.ake possession of tl1e land with the buildings, whatever might
be the rights of the sub-tenants, and as to which,
[1,S we have pointed out already, we say nothing.
In our opinion, the appeal must fail, and is
rlismissed; but in the circumstances of the case, we
do not make any order about costs.
Appeal dismissed.
J96B
Kor.di Mpnji
••
Tiu Trust"' of The
Port of Bombay
Hiday1Jtufla~ J,