Appeal No 18 of 1952
Appeal from the Judgment and Order dated December 12 1949 of the High Court of Judicature at Bombay Weston and Shah JJ in First Appeal No 456 of 1949 arising out of Judg ment and Decree dated January 24 1949 of the 186 Bombay City Civil Court in Civil Suit No 106 of 1948
MC Setalvad Attorney General for India SBJatharwith him for the appellant
N P Engineer E H Bhaba with him for the respondent
November 5
The Judgment of the Court was delivered by DAS J
This is an appeal filed with the special leave of this Court
It is directed against the judgment and decree passed December 2 1949 by a Division Bench Weston and Shah JJ of the Bombay High Court reversing the ground of absence of jurisdiction the judgment and decree for possession passed January 24 1949 by the Bombay City Civil Court and directing the return of the plaint for presentation to the proper Court
There is no dispute as to the facts material for the purposes of this appeal
or about April 15 1908 the Board of Trustees for the Improvement of the City of Bombay put up to auction plots Nos 16 17 and 18 of new survey Nos 8234 8235 and 8244 situate the Princess Street Estate of the Board containing an area of 2235 square yards for being let certain conditions
One Sitaram Luxman was the highest bidder and was declared the tenant at an annual rent per square yard to be calculated at the rate of 412 per cent of Rs 29 per square yard and he signed the memorandum of agreement incorporating the conditions upon which the auction was held and by which he agreed to be bound
He deposited the moneys in terms of clause 3 of the conditions and upon such payment entered into possession of the plots
By clause 7 Sitaram Luxman agreed within the time specified therein to build and complete at a cost of not less than Rs 50000 a building consisting of 5 floors with suitable offices drains etc
according to plans and specifications to be made by an approved architect and approvedby the Board By clause 17 187 he agreed so soon as the main building should be roofed in to insure in the joint names of the Board and of himself and until the granting of the lease thereinafter provided keep insured the buildings and works the plots for the full value thereof
Clause 18 of the conditions was as follows 18
The lease
Immediately after the completion within the time limited by condition 7 of the said buildings and works to the satisfaction of the Trust Engineer testified by his certificate the Trustees will if the contract has not previously been determined grant to the tenant or his approved nominee who shall accept the same a lease of the said plot with buildings thereon for the term of 999 years from the date of the auction at the yearly rent calculated in accordance with the accepted bidding for the plot
 Clause 25 gave power to the Board if the buildings were not completely finished within the stipulated time and certain other contingencies to forfeit the deposit and to enter upon and retain possession of the plots and all buildings and works then standing thereon
Pursuant to this agreement the said Sitaram Luxman erected those plots a building which has since come to be known as the New Sitaram Building
the completion of the building by an Indenture of lease made April 19 1916 between the Trustees for the Improvement of the City of Bombay and one Rustomji Dhunjibhoy Sethna the receiver of the estate of Sitaram Luxman appointed by the High Court in Suit No 720 of 1913 the Trustees pursuant to the said agreement and in consideration of the monies which had been expended in the erection of the buildings and of the rent and the covenants thereinafter reserved and contained demised unto the lessee all that piece of land situate their Princess Street estate together with the buildings erected thereon to hold the same for 999 years from April 15 1908 paying therefor up to January 15 1909 the rent of Re I and during the remainder of 188 the term the yearly rent of Rs 2916 by equal quarterly payments
By the said Indenture the lessee covenanted to pay all rates and taxes not to use or to permit to be used without the lessor s consent the portion of land not built upon except as open space not to pull down add to or alter the buildings without such consent to keep in repair all drains sewers etc to repair pave cleanse and paint and amend all the buildings walls etc to permit the lessors and their employees to enter upon the premises to inspect the conditions thereof 48 hours  notice to use the demised premises for residential purposes or as offices and schools only and not as a public house or liquor shop or for any business or trade throughout the term to keep the buildings insured against fire in the joint names of the lessor and the lessee and to rebuild or reinstate and repair the building if destroyed or damaged by fire or otherwise
There was a proviso for re entry for nonpayment of rent for 30 days or for breach of any of the lessee s covenants
In 1925 all the properties of the Trustees for the Improvement of the City of Bombay vested in the Bombay Municipality under and by virtue of Bombay Act XVI of 1925
By a deed of assignment made April 26 1948 Shri Bhatia Co operative Housing Society Limited a society registered under the Bombay Co operative Societies Act VII of 1921 the appellant before us acquired the lessee s interest in the demised premises
June 29 1948 the appellant served a notice the respondent before us who was a monthly tenant in occupation of Block No B2 the ground floor of the New Sitaram Building at a monthly rental of Rs 52 5 9 to quit and vacate the same July 31 1948
By his advocate s reply the respondent maintained that he had been paying the rent regularly and otherwise performing the terms of his tenancy and claimed the protection of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 Act LVII of 1947 189 The respondent not having vacated the block under his occupation the expiry of the notice to quit the appellant filed summary Suit No 106 of 1948 against the respondent in the City Civil Court at Bombay for vacant possession of the said Block No B2 the ground floor of the said New Sitaram Buildings and mesne profits from August 1 1948 until delivery of possession
After stating the material facts the appellant submitted that the Bombay Act LVII of 1947 did not apply to the demised premises
The respondent filed his written statement maintaining that under section 28 of the Bombay Act the CityCivil Court had no jurisdiction to entertain the suit
He averred that he had performed and observed all the conditions of his tenancy and was ready and willing to do so that the New Sitaram Building had been constructed at the expense of the appellant s predecessor in title and that the premises belonged to the appellant and not to the Government or a local authority and that the respondent was entitled to the protection of the Bombay Act LVII of 1947
Leaving out the issue as to whether the appellant was entitled to any compensation there were 4 issues raising in effect two points namely 1 whether the Court had jurisdiction and 2 whether the Bombay Act LVII of 1947 applied to the premises in suit
The learned City Civil Court Judge in a well considered and careful judgment answered the issues in favour of the appellant and decreed the suit
The respondent appealed to the High Court
The High Court reversed the decision of the trial Judge and holding that the Bombay Act LVII of 1947 did apply to the premises and consequently that the City Civil Court by virtue of section 28 of that Act had no jurisdiction to entertain the suit directed that the plaint be returned to the appellant for being filed in the proper Court
The High Court having declined to grant leave to the appellant to appeal to this Court the appellant applied for and obtained special leave 190 of this Court to prefer this appeal and filed this appeal pursuant to such leave
Learned counsel for the respondent took a preli minary objection founded the provisions of section 28 of the Bombay Act that the City Civil Court had no jurisdiction to entertain the suit for that section clearly states that in Greater Bombay the Court of Small Causes alone shall have jurisdiction to entertain and try any suit between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of that Part of the Act applied and to decide any application made under the Act and to deal with any claim or question arising out of the Act and no other Court should have jurisdiction to entertain any suit or proceeding or to deal with such claim or question
If as contended for by the appellant the Act does not apply to the premises then section 28 which is an integral part of the Act and takes away the jurisdiction of all Courts other than the Small Causes Court in Greater Bombay cannot obviously be invoked by the respondent
The crucial point therefore in order to determine the question of the jurisdiction of the City Civil Court to entertain the suit is to ascertain whether in view of section 4 of the Act the Act applies to the premises at all
If it does the City Civil Court has no jurisdiction but if it does not then it has such jurisdiction
The question at once arises as to who is to decide this point in controversy
It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction over the suit
Accordingly we think in agreement with the High Court that this preliminary objection is not well founded in principle or authority and should be rejected
The main controversy between the parties is as to whether the Act applies to the demised premises
The solution of that controversy depends upon a true construction of section 4 1 of the Bombay Act LVII of 1947 Which runs as follows 191 4
1 This Act shall not apply to any promises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premisestaken lease or requisitioned by the Government but it shall apply in respect of premises let to the Government or a local authority
 It is clear that the above 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 lease or requisitioned by the Government 3 This Act shall apply in respect of premises lot out to the Government or a local authority
The contention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the City of Bombay and now belong to the Bombay Municipality both of which bodies are local authorities and therefore the Act does not apply to the demised premises
Learned counsel for the respondent however urges that the object of the Act as recited in the preamble is inter alia to control rent
It follows therefore that the object of the legislation was that the provisions of the Act would be applicable only as between the landlord and tenant
Section 4 1 provides for an exemption from or exception to that general object
The purpose of the first two parts of section 4 1 is to exempt two cases of relationship of landlord and tenant from the operation of the Act namely 1 where the Government or a local authority lets out premises belonging to it and 2 where the Government lets out premises taken on lease or requisitioned by it
It will be observed that the second part of section 4 1 quite clearly exempts any tenancy or other like relationship created by the Government but the first part makes no 192 reference to Any tenancy or other like relationship at all but exempts the premises belonging to the Government or a local authority
If the intention of the first part were as formulated in item 1 then the first part of section 4 1 like the second part would have run thus This Act shall not apply to any tenancy or other like relationship created by Government or local authority in respect of premises belonging to it
The Legislature was familiar with this form of expression for it adopted it in the second part and yet it did not use that form in the first
The conclusion is therefore irresistible that the Legislature did not by the first part intend to exempt the relationship of landlord and tenant but intended to confer the premises belonging to Government an immunity from the operation of the Act
Learned counsel for the respondent next contends 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 belong
If that were the intention then the Legislature would have used phraseology similar to what it did in the second part namely it would have expressly made the Act inapplicable as against the Government or a local authority
This it did not do and the only inference that can be drawn from this circumstance is that this departure was made deliberately with a view to exempt the premises itself
It is said that if the first part of the section is so construed as to exempt the premises from the operation of the Act not only as between the Government or a local authority the one hand and its lessee the other but also as between that lessee and his subtenant then the whole purpose of the Act will be frustrated for it is well known that most of the lands in Greater Bombay belong to the Government or one or other local authority eg Bombay Port Trust and Bombay Municipality and the greater number of tenants will not be able to avail themselves of the benefit and protection of the Act
In the first place the 193 preamble to the Act clearly shows that the object of the Act was to consolidate the law relating to the control of rents and repairs of certain premises and not of all premises
The Legislature may well have thought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing lessees to take up building leases terms advantageous to the Government or a local authority
Further as pointed out by Romer L J in Clark vs Downes1 which case was approved by Lord Goddard CJ in Rudler vs Franks1 such immunity will increase the value of the right of reversion belonging to the Government or a local authority
The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority
This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available not only to the Government or a local authority but also to the lessee deriving title from it
If the benefit of the immunity was given only to the Government or a local authority and not to its lessee as suggested by learned counsel for the respondent and the Act applied to the premises as against the lessee then it must follow that under section 15 of the Act it will not be lawful for the lessee to sublet the premises or any part of it
If such were the consequences nobody will take a building lease from the Government or a local authority and the immunity given to the Government or a local authority will for all practical purposes and in so far 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
In our opinion therefore the consideration of the I 2 194 protection of the interests of the sub tenants in premises belonging to the Government or a local authority cannot override the plain meaning of the preamble or the first part of section 4 1 and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by conf erring its property an immunity from the operation of the Act
Finally learned counsel for the respondent urges that the words belonging to have not been used in a technical sense and should be read in their popular sense
It is pointed out that it was the lessee who erected the building at his own cost he is to hold it for 999 years he has the right of subletting the building in whole or in part rent and terms to be fixed by him of ejecting sub tenants and of assigning the lease
Therefore it may fairly be said that the premises or at any rate the building belongs to the lessee and the rights reserved by the lease to the lessor are only by way of security for the preservation of the building which the expiry or sooner determination of the lease will vest in the lessor
This line of reasoning has found favour with the High Court which has held that although in form the building belongs to the Bombay Municipality who are the successors in interest of the lessors in substance the building belongs to the appellant the assignee of the lessee and not to the Bombay Municipality
We are unable to accept this reasoning for we see no reason to hold in the circumstances of this case that the substance does not follow the form
By the opera tive part of the lease the demise is not only of the land but also of the building standing thereon
This demise is certainly an act of ownership exercised by the lessor over the land as well as the buildings
Under section 105 of the Transfer of Property Act a lease is a transfer only of a right to enjoy the demised premises but there is no transfer of ownership or interest in the demised promises to the lessee such as there is in a sale section 54 or a mortgage section 58
In the present case the lessee cannot his 195 own covenant use the buildings in any way he likes
He has to use the game only as offices or schools or for residential purposes and cannot without the lessor s consent use them for purposes of any trade or business
He cannot pull down the buildings or make any additions or alterations without the lessor s consent
He cannot build upon the open space
He must if the premises are destroyed by fire or otherwise reinstate it
The lessor has the right to enter upon and inspect the premises at any time giving 48 hours  notice
All these covenants clearly indicate that the lessor ha the dominant voice and the real ownership
What are called attributes of ownership of the lessee are only the rights of enjoyment which are common to all lessees under well drawn leases but the ownership in the land and in the building is in the lessor
It is true that the lessee erected the building a this own cost but he did so for the lessor and the lessor s land agreed terms
The fact that the lessee incurred expenses in putting up the building is precisely the consideration for the lessor granting him a lease for 999 years not only of the building but of the land as well at what may for all we know be a cheap rent which the lessor may not have otherwise agreed to do
By the agreement the building became the property of the lessor and the lessor demised the land and the building which in the circumstances in law and in fact belonged to the lessor
The law of fixtures under section 108 of the Transfer of Property Act may be different from the English law but section 108 is subject to any agreement that the parties may choose to make
Here by the agreement the building became part of the land and the property of the lessor and the lessee took a lease that footing
The lessee or a person claiming title through him cannot now be heard to say that the building does not belong to the lessor
Forfeiture does not for the first time give title to the lessor
forfeiture he re enters upon what has all along been his own property
Said Lord Macnaghten in Heritable Reversionary Company vs Mullar1 I 1892 AC 598 at 021 196 The words Property  and belonging to  are not technical words in the law of Scotland
They are to be understood I think in their ordinary signification
They are infact convertible terms you can hardly explain the one except by using the other
A man s property is that which is his own that which belongs to him
What belongs to him is his pro perty
 In our opinion the interest of the lessor in the demised premises cannot possibly be described as a contingent interest which will become vested the expiry or sooner determination of the lease for then the lessor could not have demised the premises including the building as he did or before the determination of the lease exercise any act of ownership or any control over it as he obviously has the right to do under the covenants referred to above
The truth is that the lessor after the building was erected became 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 the lessee in terms of the lease
If it were to be held that the building belonged to the lessee by reason of his having put it up at his own cost and by reason of the attributes of ownership relied by learned counsel then as between the local authority the lessor and the lessee also the building must for the same reason founded whathave been called the attributes of ownership be held to belong to the lessee and the Act will apply
Surely that could not possibly be the case for it would mean that the Government or a local authority will always be bound by the Act in respect of the building put up by the lessee under building leases granted by it in respect of land belonging to it
In that case the immunity given to the Government or a local authority will be wholly illusory and worthless
In  our view in the case before us the demised premises including the building belong to a local authority and are outside the operation of the Act
This Act being out of the way the appellants were well within their 197 rights to file the suit in ejectment in the City Civil Court and that Court had jurisdiction to entertain the suit and to pass the decree that it did
I The result therefore is that we allow this appeal set aside the judgment and decree of the High Court and restore the decree passed by the City Civil Court
The appellant will be entitled to costs throughout in all Courts
Appeal allowed


Summary:
A police officer made a report under section 11 of the Essential Supplies Temporary Powers Act 1946 regarding a contravention of cl 11 BIII Iron and Steel Control of Production and Distribution Order 1941 read with section 8 of the Essential Commodities Ordinance 1955 to the Magistrate against the appellants who were registered stockholders that they had sold iron bars at prices higher than the controlled rate
After enquiry the Magistrate framed a charge against the appellant under section 7 Essential Supplies Temporary Powers Act 1946 read with cl 11 BIII of the Control Order
The appellants contended that the charge ought to be quashed on the grounds i that the notification of the Controller fixing the maximum sale price of the several categories of iron and steel was ultra vires the rule making power in cl
11 Bi of the Control Order ii that the notification was discriminatory and violated article 14 and iii that the complaint could not be taken cognisance of by the Magistrate because the report of the police officer did not set out the facts constituting the offence as required by section II of the Act
The first two grounds were raised for the first time before the Supreme Court
Held that the notification fixing the rates was intra vires cl
11 Bi of the Control Order
The notification did not omit any class mentioned in cl
11 B1 from its purview it included 564 registered producers and it was not shown that there were any producers  other than  registered producers  enumerated in the notification
The notification governed  registered stockholders  also as they were included in the residuary category of persons other than  registered producers  and  controlled stockholders 
The notification was not discriminatory and did not offend article 14 of the Constitution
The notification no doubt permitted the grant of credit facilities and the right to charge for cutting and wastage in sales to  controlled stockholders  but not to  registered stockholders  in regard to sales by them
Differentiation was not per se discrimination
There was no material to show that there was any unfair or irrational discrimination which could attract article 14
Held further that the police report on which the prosecu tion was launched satisfied the requirements of section II of the Act
The purpose of section II was to eliminate private persons from initiating prosecutions and to confine it to public servants
The requirement of the section that the report should be in writing and should set out the facts constituting the offence was to ensure that there was a record that the public servant was satisfied that a contravention of the law had taken place
If the contravention was sufficiently designated in the report the requirements of the section were satisfied
Section II did not require the mention in the report of details which would be necessary to be proved to bring home the guilt to the accused
Dr N G Chatterji vs Emperor and Rachpal Singh vs Rex  not applicable
Additional grounds other than those urged before the High Court would not be permitted to be raised before the Supreme Court as a matter of course but only in exceptional circumstances like cases of subsequent legislation or where questions of fundamental and general importance were raised