Special Leave Petition Civil No9887 of1987
From the Judgment and order dated 208
1987 of the Bombay High Court in LPA No 77 of 1987
KK Venugopal AK Sen MK Nesari PH Parekh and RK Dhillon for the petitioners
FS Nariman UJMaskeja BS Basaniaum J Peres AK Verma and DN MiShra for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This petition is for leave to appeal against the judgment and order of the Division Bench of the 485 Bombay High Court dismissing Letters Patent Appeal from the order of the learned Single Judge
The 1st respondents being the trustees for the Port of Bombay are the owners of plot of land bearing Plot No 62 admeasuring 576 sq
yards Lying and situate in Pooria Street Elphinstone Estate Bombay 3
In or about 1945 the trustees of the Port of Bombay granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs 925 which later on was increased to Rs1465
In or about 1946 Mustafa Husein being the lessee of the 1st Respondent erected a permanent godown of brick mortar and cement
The said Mustafa Husein in 1958 granted lease of the said godown to the petitioners the area of the godown is about 3000 sq
It is alleged that petitioners have since been carrying on their business in the said godown The Trustees of the Port of Bombay filed suit against the heirs of Mustafa Husein for eviction from the lease granted to Mustafa Husein for termination of the tenancy
The ground for eviction was termination of tenancy
The Trustees of the Port of Bombay in July 1977 obtained a decree on admission against the heirs of Mustafa Husein in the said suit
In or about May 1985 warrant of possession in execution of decree dated 20th of July 1977 was sought to be executed against the petitioners
The petitioners obstructed the execution of the decree
Thereupon in or about June 1985 the Trustees of the Port of Bombay took out a Chamber Summons in the High Court of Bombay for removal of obstruction under order 21 Rules 97 to 101 of the Code of Civil Procedure
Petitioners contended that they were lessees under the said Mustafa Husein and as such they were entitled to the protection of the Bombay Rent Hotel and Lodging Houses Rates Control Act 1947 hereinafter called the Bombay Rent Act as the Bombay Rent Act applied to the building erected by a lessee from the local authority and as such the petitioners right of possession was protected under the provisions of the Bombay Rent Act
The Trial Court allowed the Chamber Summons and rejected the petitioner s contentions
He observed that it was not necessary to record evidence in this case
The petitioners being aggrieved preferred a first appeal
The learned single judge of the High Court dismissed the first appeal holding that the petitioners were not entitled to the benefit of the Bombay Rent Act and negatived the contentions arising out of the Easement Act and also arising out of the alleged acquiescence of the Trustees of the Port of Bombay
The petitioners preferred Letters Patent Appeal which was also dismissed by the Division Bench of the Bombay High Court
The High Court observed that if the contentions of the petitioners were accepted then the provisions of Section 41a of the Bombay Rent Act would become nugatory
Being aggrieved 486 therefrom the petitioners seek leave to appeal to this Court under A Article 136 of the Constitution
The question is whether the petitioners are entitled to protection under section 41a of the Bombay Rent Act
The answer will depend upon the question whether there was any building lease granted to the original tenant Mustafa Husein
There was none at least no such evidence was adduced before the learned Trial Judge or before the Division Bench of the High Court
When the matter came before this Court for admission by our order dated 17th of September 1987 as the question involved was whether there was any agreement or lease with the lessor that they will have to construct building on the land demised to them but as no such lease had been produced so far time was granted for production of such evidence
Pursuant to the same today we have been shown two letters one dated 16th of April 1951 written by the Architect of the lessor forwarding the plants in triplicate to the Bombay Port Trust for approval and the other letter dated 14th of June 1951 written by the Manager Land and Bunders to the architect of the lessor on the following subject Elphinstone State Reconstruction of a Shed on Monthly Tenancy Plot at Poona Street
 The petitioners were informed that the plan was approved subject to the compliance of the Municipal Regulations
This question arose in the Bombay High Court in Ram Bhagwandas vs Municipal Corporation of the City of Bombay There interpreting the Bombay Rent Act and section 41 and 4a thereof Chief Justice Chagla speaking for the Division Bench held that the proper interpretation to put upon section 44a was that under an agreement lease or grant must qualify both building erected and land held
In other words the building must be erected by the lessee pursuant to the agreement lease or grant given to the person who held the land under that agreement lease or grant
Therefore where a building was erected by the lessee not pursuant to any agreement with the lessor or not under any agreement with the lessor then the case did not fall under section 4 la
What section 41 does is to give immunity to the local authority in respect of the land which it has let out to the lessee and that immu 487 nity cannot be taken away merely because the lessee on his own volition and without being under any obligation under any agreement choses to put up structures on that land
Section 4 deals with exemptions and sub section 1 provides as follows 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 or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government but it shall apply in respect of premises let to the Government or a local authority
Therefore if we have premises which belong to Government or a local authority then the Act would not apply
The land here belongs to the local authority but the structures were put on by the lessees of the Port not under any building lease and such protection can not be claimed in respect of these premises
Sub section 4a of section 4 is also relevant
It was held The expression premises belonging to the Government or 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
Chief Justice Chagla considered the historical background under which Section 4a was enacted by the Bombay Act of 1953
This decision was approved by this Court in Kanji Manji vs The Trustees of the Port of Bombay 1962 Suppl
3 SCR 461
Sub section 4a and b read as follows 4a
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 488 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 This Court observed at page 471 of the report that this was introduced by amendment and the purpose of the amendment was as follows The amendment achieved two different things
It enabled the lessee of the particular kind of building described in cla to create sub tenancies in spite of the ban against sub tenancies contained in section 15
It also excluded from the operation of sub section 1 the buildings specified in cl
a of the sub section
The amendment said nothing about the relationship of the Government or the local authority on the one hand and the lessee on the other in respect of the land
The word premises in sub section 1 could mean the land or the buildings or both
Sub section 4a 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 extent to land
The sub section however was drafted somewhat in artistically and the obscurity of the language presents some difficulty
The Trial Judge followed a decision of the Bombay High Court reported in Ram Bhagwandas vs Bombay Corporation In that case one Khudabaksh Irani had taken lease of certain plots some 30 years back and constructed some structures upon the open plot and rented them out as tenements
In 1947 Irani sold them to one Tyaballi
In 1951 the Municipal Corporation filed a suit to eject Tyaballi from the plots and by a consent decree Tyaballi agreed to deliver up vacant and peaceful possession of the plots clear of all structures
Tyaballi failed to remove the structures and the Municipal Corporation sought to execute the decree
The tenants thereupon filed a suit under 021 r 103 of the Civil Procedure Code against Municipal Corporation but the h suit was dismissed
In the appeal which was filed in the 489 High Court it was conceded that the Municipal Corporation was the owners of the plots in question but protection was claimed on the basis of sub section
4a of section 4 of the Rent Control Act
Chagla CJ in dealing with the history of the amending Act pointed out that the legislature was seeking to protect by that sub section tenants who occupied buildings put 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
He pointed out that the protection of sub section
4a was to buildings and not to land and that the phrase under an agreement lease or other grant modified not only held by any person from Government or local authority but also erected on any land
therefore held that the words erected on any land held by any person form a local authority were descriptive of the building and did not emphasise the point of time when the building was erected
By that phrase what was emphasised was that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when the protection is sought In that case it was contended before this Court as it was contended in the Bombay High Court that so long as a building was erected under an agreement with Government or a local authority the benefit of sub section
4a of section 4 would be available no matter how many hands the property might have changed
This Court accepted the interpretation of the High Court in the aforesaid decision
In our opinion in the instant case in view of the fact that the original lease was only a monthly tenancy and not a building lease the High Court was right in dismissing the objections on behalf of the petitioners
We find no reason therefore to interfere with the order of the High Court
The special leave petition therefore fails and is accordingly dismissed without any order as to costs
Since the petitioners have been in possession of the premises for some time in the interest of justice it is desirable in our opinion that the petitioners should have time to vacate the premises in question
In the premises we allow the petitioners to continue to remain in the premises upto 15th of September 1988 provided they file the usual undertaking in this Court within four weeks
NPV Petition dismissed


Summary:
In 1945 the first respondent Trustees of Port of Bombay granted lease of plot owned by them for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs 925
In 1946 the lessee erected a permanent godown
In 1958 he granted lease of the said godown to the petitioners
The first respondent filed a suit against the heirs of the original lessee for eviction on the ground of termination of tenancy and obtained a decree
When warrant of possession was sought to be executed the petitioners obstructed the execution of the decree
The first respondent thereupon took out a Chamber Summons for removal of obstruction under order 21 Rule 97 101 CPC
The petitioners contended that as they were lessees under the original lessee they were entitled to protection of the Bombay Rent Hotel and Lodging Houses Rates Control Act 1947 the Bombay Rent Act which applied to the building erected by a lessee from the local authority
The trial court rejected the petitioners  objection and allowed the Chamber Summons
The appeal of the petitioners was dismissed by the Single Judge of the High Court holding that they were not entitled to the benefit of the Bombay Rent Act
The contentions arising out of the Easement Act and alleged acquiescence of the first respondent were negatived
The Letters Patent Appeal was also dismissed by the Division Bench
On the question whether the petitioners were entitled to protection under section 41a of the Bombay Rent Act
484 dismissing the Special Leave Petition  HELD Where a building was erected by the lessee not pursuant to or not under any agreement with the lessor then the case did not fall under section 41a of the Bombay Rent Hotel and Lodging Houses Rates Control Act 1947
486G Section 41 gives immunity to the local authority in respect of the land which it has let out to the lessee and that immunity cannot be taken away merely because the lessor on his own volition and without being in obligation under any agreement choses to put up structures on that land
Therefore if the premises belonged to the Government or a local authority then the Act would not apply
486H 487A D In the instant case The lands belong to the local authority but the structures were put on by the lessees of the first respondent not under any building lease and such protection cannot be claimed in respect of these premises
In view of the fact that the original lease was only a monthly tenancy and not a building lease the High Court was right in dismissing the objections on behalf of the petitioners
Since the petitioners have been in possession of the premises for some time the petitioners are allowed to continue to remain in the premises upto 15th September 1988
489F H Kanji Manji vs The Trustees of the Port of Bombay 1962 Suppl
3 SCR 461 applied