UNION OF INDIA Vs. EVEREST ADVERTISING (PVT.) LTD

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against an order directing that the plaint be returned for presentation to the proper Court and raises a question of interpretation of Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The short facts are that one Ratanjee Jainshetjee Tata took on lease on March 16, 1909, from the City of Bombay Improvement Trust an open piece of laud. Before this date there was an agreement between the parties for the said purpose on April 4, 1905. In pursuance to the agreement, the lessee erected a building on the land known as Rafia Manzil. By the terms of the lease it is said he became the lessee of the entire land and the building, though he himself had built the building. There haw been successive assignments of the building and the land and before the plaintiff became the assignee, one Jahangir Jamshedji Mahudawala became an assignee of all the rights. All the rights of Mahudawala were assigned to the present plaintiff, the Union of India, on August 20, 1954. Since prior to the date of this assignment the defendant -respondent, a private limited company, was a tenant of Flat No. 7 on the third floor of the building at a monthly rental of Rs. 453.45 nP. The plaintiff terminated the tenancy of the defendant by a notice dated January 23, 1958, and followed it up with the suit on March 20, 1958, in the City Civil Court for eviction. The learned Judge held that the Act was applicable to these premises and, therefore, the City Civil Court had no jurisdiction, since it was a dispute between a landlord and a tenant, and it was the Small Cause Court alone, which had jurisdiction. He, therefore, directed the plaint to be returned for presentation to the proper Court. The present appeal is directed against this order.

(2.) THE lease between the parties is a very stringent one. Though the tenant. himself had built the building, it proceeded to provide that the Board (Trustees for the Improvement of the City of Bombay) devised to the lessee all the piece of land together with the buildings and premises then erected and built thereon together with all rights, easements and appurtenances belonging to the premises subject to certain conditions. The tenant was to hold and enjoy the premises for 999 years on payment of certain yearly rent calculated on certain basis. The tenant covenanted with the Board, for the payment of rents reserved as agreed between the parties and by Clause 2 not to erect or permit to be erected en any part of the land any additional structure except such as was in strict, accordance with the provisions of the agreement and was according to the specifications approved by the Board and by Clause 5 not to use the open laud demised for any purpose other than as garden or open space nor to erect any structure whatever over the same. By Clause 6 he agreed to screen certain portions of the house as approved by the Board. By Clause 7 he agreed not to make any additions or alterations to the building without the previous consent in writing of the Board or the Engineer. It also further provided that the specifications regarding alterations, etc., shall be strictly adhered to except as sanctioned by the Board or the Engineer. It also provided for certain quality of the material for the erection of such constructions. In the event any material was found to be unfit or unsound, the lessee undertook to remove the same and replace it with proper material. By Clause 8 the lessee agreed to lay certain drains, etc. By Clause 9 he agreed to cut down, alter or remove any projection over any part of the premises erected in contravention of any of the provisions. He undertook not to make any excavation on any part of the land. By Clause 12 he agreed at his own expense, whether requested by the Board or not, to keep the property in substantial repair and undertook to support, pave, cleanse and keep in good and substantial repair including all usual and necessary internal and external painting and white -washing. Clause 13 provided for the inspection of the premises by the Board or an Engineer or any other officer authorised by the Board. By Clause 15 he undertook not to cut or maim any of the principal walls of the buildings. By Clause 16 he undertook not to use or permit the said premises or any part thereof to be used for any business, trade or occupation or for any purpose whatsoever other than a dwelling house. By el. 17 ho undertook not to create any nuisance or disturbance. Clause 18 provided for insurance of the. building against damage by fire in the joint names of the Board and himself. Clause 19 provided for delivery of possession to the Board of the premises and the erections which shall have been built during the term with all the drains, etc. There' is one term, which I will refer to a little later, It is to these rights and liabilities that, the plaintiff has succeeded by assignment. Section 4 of the present Act so far as is relevant may be conveniently divided into three parts: (i) this Act shall not apply to premises belonging to Government or a local authority, or (ii) apply as against 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 Government; (iii) but it shall apply in respect of premises let to the Government or a local authority. Section 4(4)(a) provides: The expression 'premises belonging to the Government or a local authority' in Sub -section (1) shall, notwithstanding anything contained in the said sub -section 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 whether before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959.

(3.) IN view of the intervention of the Legislature by enacting, Sub -section (4), it is clear that the intention as expressed in Section 4 originally and found upon by the Supreme Court was not the real intention of the Legislature. It appears that the Legislature really intended that the provisions of the Rent Act should not apply to those premises where either the Government or the local authority was the landlord in reference to the particular premises which form the subject -matter of suit. It is no doubt true that the section is not happily worded and the patch work by amendment has not made the task of the Court easier in construing the section.