VINAYAK GOPAL LIMAYE Vs. LAXMAN KASHINATH ATHAVALE

JUDGEMENT

(1.) THESE two civil revisional applications along with tour others have been ordered to be placed before a Division Bench because it appeared that they raised a common question of law under Section 6 Sub-section (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947 ). In all these cases, one of the questions which arose for decision in the Courts below was whether the lease in question attracted the provisions of the Rent Act, and naturally the decision of this question depended on the construction of Section 6 (1 ). Section 6 Sub-section (1) provides that, in areas specified in Schedule I, Part II of the Act shall apply to premises let for residence, education, business, trade or storage. If the lease in question can be regarded as falling within the purview of Section 6 (1) then the provisions of Part II would apply. If, on the other hand, the lease does not fall within Section 6 (1), the provisions of Part II would be inapplicable. All the leases in these cases can be broadly described as building leases, and the decisions under revision disclose a sharp difference of opinion on the question as to whether a building lease can attract the provisions of Section 6 (1) or not. We were told that in some districts, and even in the Court of Small Causes at Bombay, there has been a divergence of judicial opinion on this point, and so the learned Advocates who appeared In the six civil revision applications before us attempted to argue the matter on general lines and suggested that we should lay down some general principles which would apply to leases which are sometimes described as building leases. In one set of cases it has been held that an open plot can never be let for residence because unless a building is constructed on the open plot the, purpose of residence can never be served, and so a building lease on this preliminary consideration would he excluded from the operation of Section 6 (1) of the Act. On the other hand, some decisions have proceeded on the view that even an open plot can be let for residence if the terms of the lease clearly indicate that the object of the lessor and the lessee was that the plot should be used for a building which should ho let out to tenants for their residence. There does not appear to he uniformity in the view taken in some of the unreported decisions of this Court; but no decision which binds us has been cited before us on this point and the question can, therefore, be decided by us on the" basis that it is res integra.

(2.) IT is, however, necessary to emphasize at the outset that the question as to whether a particular lease falls within section 6 (1) of the Act; or not would always be a question of fact. It would be possible to lay down certain general consideration which would govern the construction of section 6 (1), But it would, be difficult, if not impossible and, we apprehend, it would be unwise to lay down any general principles which would apply to the construction of ail leases which can be described in a general way as building leases. A building lease is a lease by the lessor in respect of an open plot, and the lessee under such a lease is expected to build on the open plot. The building thus constructed by the lessee may be used either for residence or for education, business, trade or storage or any other purpose. In dealing with such leases, it would be necessary to remember the legal position regarding the rights of the lessor and the lessee. Section 108 (h) of the Transfer of Property Act provides that, in the absence of a contract to the contrary, the lessee may, even after the determination of the lease, remove all things which he has attached to-the earth, which of course includes structures or buildings put up by him. In other words this section contemplates a dual ownership in such cases. The lessor is the owner of the open plot and the lessee who builds a structure on the open plot is the owner of the structure. It is because of the two distinct ownerships vesting in two different individuals of the plot and the building standing on the plot that the construction of section 6 (1) of the Rent Act presents some difficulty. . In Narayan Das v. Jatindra Nath 54 Ind App 218: (AIR 1927 PC 135) (A) this dual ownership which is a special feature of the Indian law of property, has been expressly recognised by the Privy Council and this dual ownership in respect of the two constituents of the property must be borne in mind in dealing with the question of construing section 6 (1) of the Act.

(3.) IT is obvious that, before a lease can fall under Section 6 (1) and can attract the provisions of Part II of the Act, it must be shown that the subject matter of the lease is "premises" within the meaning of the Act. Section 5 Sub-section (8) defines "premises" as meaning any land not being used for agricultural purposes and any building or part of a building let separately, including the accompaniments or appurtenances mentioned in Sub-clauses (i), (ii) and' (in) of clause (b ). An open plot not used for agricultural purposes, therefore, clearly falls within the definition of "premises", and since the building lease is a respect of such an open plot it satisfies the first requirement of section 6 (1 ). Section 6 (1) further requires that the premises must have been let for residence, education, business, trade or storage. In other words, the purpose of the lease must be 'one of the five categories indicated in the Sub-section in deciding the question as to what is the purpose of a lease, it would be necessary to consider the lease as a whole and find out the main or dominant purpose for which the lease has been executed. Normally the purpose of the lease can be determined from the terms of the docriment itself. If the instrument of tenancy specifically and clearly declares the purpose of the lease, there can be no difficulty in deciding whether the lease falls under section 6 (1})or not. If the instrument of lease is silent as to the purpose, then it wonldf be permissible to allow evidence aliuade in repaid to the said purpose and the purpose can be determined in the light of such evidence. In such cases, it would be permissible and legitimate for the Court to look at evidence concerning the user of the premises by the tenant in order to determine the purpose of the lease. If the user of the premises by the tenant is otherwise not inconsistent with any of the terms of the lease, an inference about the purpose of the lease may reasonably be drawn from such user. It is, however, necessary that before such an inference -is drawn it must be shown that the user was known to the lessor and had been acquiesced in by him. The en-quity under Section 6 (1) would naturally centre on the question as to the purpose, and once the purpose of the lease is determined, the question as to whether section 6 (1) is attracted by the lease or not would be automatically resolved. This position appears to be well settled by judicial decisions, vide Dakshinamoorthy v. Thulja Bai, AIR 1952 Mad 413 (FB) (B) and Wolfe v. Hogan, (1949) 2 KB 194 (C ).