Civil Appeal No 4248 of 1986
From the Judgment and Order dated 22986 of the High Court of Bombay in LPA No6686
Dr YS Chitale Kailash Vasudev and AJ Dholakia for the Appellants
SA Dave E Maqbool and Mrs M Karanjawala for the Respondents
The Judgment of the Court was delivered by KANIA J
This Appeal by Special Leave granted under Article 136 of the Constitution raises a short but interesting question as to the interpretation of sub section 4a of Section 4 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Bombay Rent Act
As the only point canvassed before us is a point of law the relevant facts can be shortly stated
The Appellants are the sub tenants of Respondent No 1 Firm in respect of Gala No 4 or Bay No 4 in a godown situated at the Grain Market at Dana Bunder in Bombay
Respondent No 1 Firm were the tenants of the said premises namely the said godown in which the said Gala is situated having taken a lease of the building in which it is situated along with the land on which the building stands from the Bombay Port Trust under a written agreement
The Appellants were in occupation of the said Gala under written agreements executed from time to time for a period of one year each
The last such agreement was executed on 7th November 1970 and was to expire on 19th October 1971 that is at the end of Samvat year 2827
Respondent No 1 Frim served a notice through their advocate on the Appellants on 13th January 1972 to hand over the possession of the said premises namely the said Gala referred to hereinafter as the said premises 910 inter alia on the ground that the period of the lease had expired
In their reply dated 14th January 1972 the Appellants contended that they were lawful sub tenants of Respondent No 1 Firm in respect of the said premises and were entitled to the protection of the Bombay Rent Act
Respondent No 1 Firm in their reply denied that the Appellants were entitled to protection under the said Act
Respondent No 1 terminated the tenancy of the Appellants by their notice dated February 3 1972
In the correspondence ensued thereafter between the parties they repeated their respective stands
Respondent No 1 filed a suit in the Bombay City Civil Court to recover possession of the said premises
The Appellants in their written statement took up the contention that they were not liable to be evicted as they were entitled protection under the provisions of the Bombay Rent Act
The Bombay City Civil Court decreed the suit of Respondent No 1
On an appeal by the Appellants a learned Single Judge of the Bombay High Court remanded the suit to the Bombay City Civil Court for recording findings on two questions namely 1 as to who were lessors of the defendants whose monthly tenancy commenced in the year 1957 and 2 whether that tenancy was legally and validly terminated
On remand the Bombay City Civil Court held that the lessors of the Appellants in 1957 were one Maghji and Kanji and that the tenancy of the Appellants was not validly terminated
Thereafter the Appeal of the Appellants came up for hearing before a learned Single Judge of the Bombay High Court
He held that the notice of termination of tenancy dated 3rd February 1972 was a valid notice terminating the Appellants  tenancy and that the provisions of the Bombay Rent Act did not apply to the premises in question
The learned Single Judge upheld the decree of eviction originally passed by the Bombay City Civil Court
A Letters Patent Appeal was preferred against this judgment to a Division Bench of the Bombay High Court but the same was dismissed by a short order
This Appeal is directed against the judgment and order of the Division Bench of the Bombay High Court
The only submission made before us by Dr Chitale learned Counsel for the Appellants was that the impugned judgment was erroneous and liable to be set aside as the said premises namely the said Gala No 4 were entitled to the protection of the provisions of the Bombay Rent Act and Respondent No 1 Firm was not entitled to a decree for eviction as none of the grounds for eviction under that Act had been made out
It may be mentioned here that for the purpose of this Appeal we intend to proceed on the assumption that Respondent No 1 Firm has 911 not made out any ground which would entitle him to a decree for eviction under Section 13 of the Bombay Rent Act
Section 12 of the Bombay Rent Act provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases if any and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Bombay Rent Act
Section 13 provides that notwithstanding anything contained in the Bombay Rent Act but subject to the provisions of Section 15 and 15A a landlord shall be entitled to recover possession of any premises if the court is satisfied with any of the grounds set out in that section is made out
Sub section 1 of Section 4 of the Act which deals with the Exemptions reads as follows 4
Exemptions 1 This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy licence or other like relationship created by a grant from or a licence given by the Government in respect of the premises requisitioned or taken on lease or on licence by the Government including any premises taken on behalf of the Government on the basis of tenancy or of licence or other like relationship by or in the name of any officer subordinate to the Government authorised in this behalf but it shall apply in respect of premises let or given on licence to the Government or a local authority or taken on behalf of the Government on such basis by or in the name of such officer
 Sub section 4a to Section 4 which was introduced into the Bombay Rent Act by the Bombay Act 4 of 1953 runs as follows 184a
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 licence or other grant although having regard to the provisions of such agreement lease licence or grant the building so erected may belong or continue to belong to the Government or the local authority as the case may be
912 It was contended by Dr Chitale that although the building in which the said premises are situated belonged to the Bombay Port Trust which is admittedly a local authority as contemplated in Section 4 of the Bombay Rent Act the said premises were excluded from the scope of the exemption provided by sub section 1 of Section 4 of the Bombay Rent Act as the case fell within the scope of sub section 4a of Section 4 of the Bombay Rent Act
It was urged by him that the said building was erected on land belonging to a local authority namely the Bombay Port Trust and hence the said premises must be considered to be outside the scope of the exemption provided by subsection 1 of Section 4 and covered by the provisions of the Bombay Rent Act although the building might belong to the Bombay Port Trust
We may at this stage notice the legislative history in connection with sub section 4a of Section 4
The exemption granted under Section 41 of the Bombay Rent Act came up for consideration before the Supreme Court in the case of Bhatia Co operative Housing Society Ltd vs D C Patel The facts in that case were that the building site was auctioned to a person by the City Improvement Trust of Bombay with a condition that the bidder was to put up a building thereon of a certain description at a cost of not less than Rs50000 and after the completion of the building the site and the building were to be leased to the bidder for a period of 99 years at a fixed yearly rent
It was held that the building belonged to the Improvement Trust and not to the bidder and a suit by the lessee of the Improvement Trust against his sub lessee was not governed by the Bombay Rent Act as the premises belonged to a local authority within the meaning of Section 41 of that Act
In analysing Section 41 of that Act the Court pointed out that the sub section has three parts namely 1 This Act shall not apply to premises belonging to the Government or a local authority 2 this Act shall not apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government and 3 this Act shall apply in respect of premises let out to the Government or a local authority
The Court observed that the conclusion was therefore irresistible that the Legislature did not by the first part intend to exempt the relationship of the landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act
The contention of the counsel for the sub lessee that the immunity given by the first part should be held to be available only to the Government or a local authority to which the premises belonged was 913 rejected
It was held that if the benefit of the immunity was given only to the Government or a local authority and not to its lessee and the Act applied to the premises as against the lessee it must follow that under Section 15 of that Act it would not be lawful for the lessee to sublet the premises or any part of it and that if such were the consequences nobody would take a building lease from the Government or a local authority and the immunity given to the Government or a local authority would for all practical purposes and in so far as at any rate as the building leases are concerned be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective
As a result of this decision the sub lessees in a building put up by a lessee from the Government or a local authority under a building lease did not get any protection from being evicted at the sweet will of the lessee and were denied the benefit of the provisions of the Bombay Rent Act
In order to obviate this hardship of sub lessees sub section 4a set out earlier was introduced into the provisions of the Bombay Rent Act
The question however is whether the protection of that sub section is available to the sub lessee in a building leased by the lessee from the Government or a local authority or put up by a lessee of the land belonging to the Government or a local authority but not under any building lease or pursuant to any obligation imposed on the lessee to put up a building
We may make it clear in this connection that in the present case the factual position emerging from the record appears to be that the entire building in which the said premises namely Gala No 4 is situated belonged to the Bombay Port Trust
That is clear from the contents of clause ii of Paragraph 2 of the Special Leave Petition preferred by the Appellants as well as the other material on record
It has nowhere been contended at any stage by the Appellants that the building in which the said premises are situated was put up by Respondent No 1 Firm
We are therefore not concerned with the position of a sub lessee in a building put up by a lessee of the land taken from the Government or a local authority without being under any obligation to do so
It was urged before us by Dr Chitale that if the sub lessee in a building put up by a lessee on land leased from the Government or a local authority under a building lease is entitled to the protection of the Bombay Rent Act under the provision of Section 44a thereof there is no reason why such protection should be denied to a sub lessee in any building belonging to the Government or a local authority and taken on lease by a private party regardless of the question as to who has put up the building
That may or may not be so but what we have to examine is whether the intention to confer such protection can be 914 imputed to the legislature on the language of the said sub section read in the context of the relevant provisions of the Bombay Rent Act
The plain reading of sub section 1 of Section 4 makes it clear that the provisions of the Bombay Rent Act are not applicable to premises belonging to the Government or a local authority
Sub section 4a only takes out from the scope of the exemption conferred by Section 41 a building erected on any land held by any person from the Government or a local authority under an agreement lease licence or other grant although having regard to the provisions of such agreement lease licence or other grant although having regard to the provisions of such agreement lease licence or grant the building so erected may belong or continue to belong to the Government or the local authority as the case may be
If this provision were to be construed as including any building put up or erected on land held by any person from the Government or a local authority the result would be that such protection would be available even against the Government or a local authority and the provisions of sub section 1 of Section 4 may be rendered largely nugatory
It is not disputed by Dr Chitale that the provisions of sub section 4a were never intended to take away the immunity conferred upon the premises belonging to the Government or a local authority and if the provisions of Section 44a were to be construed as urged by Dr Chitale this immunity would be rendered practically nugatory
In fact a plain reading of the provisions of sub section 4a in the context clearly shows that there is no intention therein to take out a building put up by the Government or a local authority from the scope of the exemption conferred by sub section 1 of Section 4
In fact the language of sub section 4a and sub section 1 of Section 4 of the Bombay Rent Act read together suggests that it was only in respect of a building put up by the lessee on the Government land or land belonging to a local authority under a building agreement that the sub lessees were taken out of the exemption contained in sub section 1 of Section 4 and allowed the benefit of the provisions of the Bombay Rent Act
It is significant that the exemption granted under the earlier part of sub section 1 of Section 4 is in respect of the premises and not in respect of the relationship
In order to confer the protection of the provisions of the Bombay Rent Act to the sub lessees occupying the premises in any building erected on Government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the Government or local authorities as contemplated by sub section 1 of Section 4 of the Bombay Rent Act we would have to practically rewrite the provisions of Section 4 and it is not open to us to do that
We are therefore unable to accept the argument of Dr Chitale and we are of the view that the 915 learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act
Before parting with the matter we may take note of some of the other decisions cited before us
In Kanji Manji vs The Trustees of the Port of Bombay 1962 Suppl
3 SCR 461 this Court took the view that if the Government or a local authority wants to evict a person from land belonging to the Government or a local authority the provisions of the Bombay Rent Act do not come in the way
For the same reason the suit for ejectment does not have to be filed in the Court of Small Causes as required by the Rent Control Act but in the City Civil Court
If the original lessees took on lease not only the land but also the building it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings
This decision is of no assistance to the case before us
In Maneklal and Sons vs Trustees of Port of Bombay and Others the facts very briefly stated were that Respondent No 1 being the Trustees for the Port of Bombay were the owners of a plot of land situated in Bombay
In 1945 the trustees granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities
The godown was erected by Mustafa Husein in 1946 and in 1958 he granted a lease of the said godown to the petitioners in that case
The Trustees of the Port of Bombay filed a suit against Mustafa Husein for eviction
The lease granted to Mustafa Husein stood terminated
The ground of eviction was the termination of Tenancy
The Trustees obtained a decree against the heirs of Mustafa Husein
A warrant of possession in execution of decree was sought to be executed against the petitioners
The petitioners obstructed the execution of the decree
Thereupon the Trustees took out a Chamber Summons in the High Court of Bombay for removal of obstruction
The petitioners contended that they were the lessees under the said Mustafa Husein and were entitled to the protection of the Bombay Rent Act
This Court pointed out that the word premises in sub section 1 could mean the land or the buildings or both
Sub section 4a of the Bombay Rent Act dealt only with the buildings and did not deal with the land because it used the word buildings and not the more general word premises
The import of sub section 4a of Section 4 was thus limited to buildings and did not extend to land
The sub section however was drafted 916 somewhat inartistically and the obscurity of the language resulted in some difficulty
After considering the decision of the Bombay High Court in Ram Bhagwandas vs Municipal Corporation of the City of Bombay this Court pointed out that as observed by Chagla CJ in the case of Ram Bhagwandas supra by enacting sub section 4a of Section 4 of the Bombay Rent Act the Legislature was seeking to protect by that sub section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings
The protection of sub section 4a was to buildings and not to lands and the phrase under an agreement lease or other grant modified not only the expression held by any person from the Government or a local authority but also erected on any land
This Court pointed out that this was the view taken by this Court in Kanji Manji Case cited earlier
On the basis of this conclusion this Court dismissed the Special Leave Petition filed by the petitioner
This decision far from supporting the submission of Dr Chitale militates against it
In the result we find that there is no merit in the Appeal and it must fail
The Appeal is therefore dismissed with no order as to costs
However taking into consideration of the facts and circumstances of the case we direct that the Appellants shall not be evicted from the premises in question until December 31 1988
We can only observe that if the intention of the Legislature is that the protection should be given to the sub lessee against the lessee in a building taken on lease by the lessee from the Government or a local authority it is for the Legislature concerned to make appropriate amendments in the Bombay Rent Act and it is not open for us to re write the provisions of sub section 4a of Section 4 of the Bombay Rent Act on the ground of any such intention as suggested by Dr Chitale
SL Appeal dismissed


Summary:
The appellants were facing prosecution for several charges under the Indian Penal Code in different trials
By different notifications the State of Maharashtra appointed some advocates as Assistant Public Prosecutor and Special Public Prosecutors in exercise of powers under section 251 and 248 respectively of the Code of Criminal Procedure 1973 for conducting the prosecution
The notifications were challenged in a group of writ petitions before the High Court
A Division Bench of the High Court by a common judgment negatived the plea advanced by the appellants rejected the writ petitions and upheld the appointments
Hence these appeals by special leave
The appellants contended that the Code confers a special status on the public prosecutor whenever it has been considered necessary law has prescribed the interest to be represented by the public prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source
Allowing the appeals this Court  HELD In most of the States the Remembrancer of Legal Affairs looks after the State litigations
He is a responsible officer and normally 869 with judicial experience
When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor
It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code
There may be cases where a powerful complainant may have begun a proceeding to victimize his opponent
If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be traversity of justice
Without screening on the basis of guidelines prescribed or to be prescribed the services of a Special Public Prosecutor should not be made available to a private complainant
The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted or what the High Court has indicated is adopted
876F H877A B Rule 22 of the Maharashtra Rules is bad and the State Government should properly modify the same keeping our conclusions in view
877H878A The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant
The Remembrancer of Legal Affairs should scrutinise every request keeping a prescribed guideline in view and decide in which cases such request should be accepted keeping the facts of such case in view
Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor s remuneration may be collected from the private source
In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same
877DF H In the instant cases the Rememberancer of Legal Affairs of the Maharashtra Government will now decide as to whether the services of a Special Public Prosecutor a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made he should decide as to whether the State Administration should pay for such Public Prosecutor or the private complainant should bear the same
878A B 870 KC Sood vs SC Gudimani 1981 Crl
LJ Vol
II 1779PG
Narayanankutty vs State of Kerala and Ors 1982 Crl
LJ Vol 88 2085 and Dilipbhai Chhotalal Dave vs State of Gujarat  Ors 1971 Guj
LR Vol
12 999 referred to