MRS. DOSSIBAI N. B. JEEJEEBHOY versus KHEMCHAND GORUMAL AND OTHERS

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 fJur suits in the City Civil Courts, Bombay, for recovery of arrears of rent in respect of the premises mentioned in the pbint 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 (Born. 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 U30 SlJPREME COURT REPORTS

pp. 929–930

[1962) the contrary that the Hont Act applied and so the City Cid! Court had no juri8diction to try the suits. The first is>uo framed in each of these suits then,forC' was, whether the Court had jurisdiction to entertain the suit.. TJ1e learned Judge held that Part II of the l{cnt Act applied to the premises in each of theso suits and con8e'}tl<'ntly only tho special courts fipccified in s. 28 of Rent Act had jurisdi· ction to eutortain the suits and tho Citv Civil Court had no jurisdiction. Accordingly, he. ordered the plaint in each of the four suits to Le returned to the phintiff for presentation to the proper Court. Tho plaintiff appealed to the High Court ofBomLay but all the four appeals were 8Ummal'ily dismissed. The Let tors Patent appeals preferred by the plaintiff from the decision of the Single .Judge were also dismissed ~ummarily. These appeals have Leen pre· fcrrecl against that decision of the Bombay High Court in Letters Patc11t Appeals on special leave oLtaincd from this Court.

p. 930

l:nder s. 5, sub-s. 8 of tho Hcnt Act unl66B thorn is anything repugnant in the context, "premis· es" mt•ans, among other things, "any land not boing usod for agricultural purposes." It is undisputed in thc8e that the land in rospcd of whieh tho suits were brought was not being used for agricul· turn] purposes and so comc8 within the <lefo1ition of "prcmieos" in s. ii.

p. 930

'I11e provisions of Part II of tho Act du not howe,·er apply to all premises whieh fall within this definition. Section G with which this Part II opens providos in its firnt sub-sectiou that this part shall apply to pr<'mises let for residence, education, Lusiurns, trade or storage in areas sp<,cificd in Sch. I. It is rnbjcct to a proviso that tho State Government may direct that in any of the ;aid nreas, this Part shall cease to apply to premists let for any of the said purposes, with a further proviso that the State Govornment may again direct that in any of tho said nroas this Part shall re-apply to premisos lot 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. l(A) under whioh 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 I of the Act. In each of these caHes we have therefore to examine the purpose of the lease and to decide whether it was let for residence or for education, busineAs, trade or storage. The lease mentions that. the leasee will construct buildings suitable for residential, business, industrinl or office purposes. The plnintiff'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 Jo 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.

pp. 930–931

The extreme propisition which Mr. Bhatt raised first of all on behalf of the appellant is that open land can never be let for residence and so whens. 6 speaks of premises being let for residence, land as defined in sub-s. 8 (a) of s. o is outside tho word "premises". There is, in our opinion, no substance in this contention.

p. 931

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 s. 6 speaks of premisee being let for residence.

p. 931

The more substantial quoation 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 reason'!.bly be called to be letting for residence. Mr. Bhatteontends that as, what is to be ronsidered 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 constrnetcd on the open land is to be used for residence. In such~ case, says l\fr. Bhatt, the land is let for construction of a. building and not for residence. We arc unable to accept this argument. Land can be used fur many purposes. It may be used for agriculture; for residence of human beings; fur keeping cattle or other animals; for holding meetings; for carrying on busineBS or trade; for storage of goods; for supply of water by excavating tanks, and many other purposes. )fony of these purposes can be achieved on tho open land without tho construction of any buildings. But many of thorn can be better achieved if some kind of structure is created on tlte open land. It scorns reasonable to us to think that when tho Bombay Legislature took particular care to include open land not being used for agricultural purposes within the word "premises" and then wont on in tho very next section to speak of premises being let for several specified purposC3, it was thinking of the purposes to which the land will be uaed irrespective of whether the purpose was intended to be arhioved with or without oonstructbn of a structure. Tho intention in mentioning only some purposes, viz., rosidPnce, edu · cation, business, trade or storago in s. 6 was to exclude land let for purposes like, keeping of cattle, (except in the way of business or trade), and numerous othor purposes to 1vhich the land may be put from the benefit of part II of the Act.

p. 932

It seems to us that when people speak ordinarily of land being let for busin•lBB, they a.re only · thinking that the ultimate purpose behind the lettinir 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 tha.t by taking lease of the Ja.nd he will achieve the object of storing goodR, 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 ha.s 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 ~aravans.

pp. 932–933

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.

p. 933

But, says Mr. Bhatt, look at sub-s. (i) of s. 15 of tbe Rent Act which is in this very part II and that will show that the Legislature _ could not have intended !<ind which is let for the construction of buildings for residence to be 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 he mentioned that as the section originally stood the words "but subject to any contract to the contrary" were not there. When the amending Act of I 959 introduced thes~ words the amendment further provided that these words shall be deemed always to have been there. Even nJter tho amendment, it remains unlawful, where there is no contract to the contrary, for any tenant of premises to sublet the whofo or any part thereof. Mr. Bhatt's an;ument is that in every case where therois nosueh contract to the contrary the difficulty that will rosult if land let for construction of residential buildings be h" Id to ho premises lot for rcsi<lonee within tlrn meaning of s. 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 w hero the real purpose of taking the land is for the construction of building for letting out the snmP, that purpoRe will be defeated. This argument

pp. 933–934

regards the difficulty in the matt-0r of letting out the building eonstructcd on the land on which leas<> has been taken was more plausible when tho saving phrase "bul subject to any contract to the contrary" did not form part of the section. Now, however, the eases in which such difficulty will arise. if at all, would be few and far between; for, it. is rea.sonablo to expect that when taking lease of land for the construction of building intended to be let ont to others for residence, the lessee of the In.nd would take caro to inclutlf." in the contract of Jea~e a term pennitting him to let out the buil<ling. Assuming that tl1oro mn..v be cases where the contract of leaRe does not contain any such term and &SSuminµ- further that it will not be lawful f•>r the leBSeo of the land to let out the building constructed bv him, the prob~bility of such difficultv in some. oases, can bo no reason to cut down the 'ordinary and reasonable connotation of the worcls "let for residence" in s. 6.

p. 934

It is unneces.~ary for us to decide whether if there is no contract to the contrary, s. lo will really stand in tho way of a lcsReo. of tho land letting out buildings constructed by !~1~ on such !a~d. ~Ve may 11ay howcvN that there ism our opm10n much force in the argument which found favour with the Bombay High Court in Vinayak Gopal, v. Laxman Kashinath ( where the very question, which is now before us arose for deoision, that the bar of s. 15 will operate only in the way of letting out the land of which lea1e has been taken, but will not stand in the way of letting the building constructed on the land:

pp. 934–935

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 persmtde 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, aR 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 Vinavak Gopal's Case(') is, in our opinion, correct.

p. 935

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 l~ase 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".

p. 935

Turning now to tho facts of the present case we find that in eaoh of these cases the lease w!ls taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premi~es let are therefore "promises" to which under s. 6 (1) of tho Rent Act the provision of part II of the Act, apply.

pp. 935–936

The Trial Court nnd the High Court wer• therefore right in holding that the City Civil Court, Bombay, had 'no jurisdiction to try the suitll.

p. 936

Tho a ppeale arc accordin~ly dismil!&'cl with costs. Thero will be one 1et of hearing fee for th• four appeals.

p. 936

Ap~nl di.<miased.

p. 936

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