Case: Kanji Manji Vs. The Trustees Of The Port Of Bombay

from Government or local authority" but also erected on any land" He, therefore, held that the words "erected on any land held by any person from 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 that protection is sought.12. In this case, it is contended, 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-sec. (4)(a) of S. 4 would be available, no matter how many hands the property might have changed. This argument was considered by the learned Chief Justice, and was rejected.13. In our opinion, though the section is far from clear, the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this subsection came to be enacted. Those circumstances were: In a case in which the holder of the land from a local authority was seeking to evict his sub-tenants, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that sub-sec. (1) applied and the suit was not governed by the Rent Control Act.The amendment was enacted to cut down by a definition the operation of the words "any premises belonging to the government or a local authority, by excluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Government or continued to belong to it. Clause (b) of sub-sec. (4) excluded also S. 15, which prohibited sub-letting by a tenant. That, however, was limited to the case of buildings only, and did not apply to the case of land. In this situation, any action by the Government or the local authority in respect of land falls to be governed by sum sec. (1) and not sub-sec 4(a) and sub-sec. (1) puts the case in relation to Sand entirely out of the Rent Control Act. The net result, therefore is that if Government or a local authority Giants to evict a person from the land, the provisions of the Rent Control Act do not. Come in the way. For the same reason, the suit for ejectment does not have to he filed in the Court of Small Causes, as required by the Rent Control Act but in the City Civil Courts as has been done in this case.14. There is one more reason in this case for reaching the same conclusion, because at the time of the lease in 1942, the lessees, from the appellant claims assignment, were given a lease not only of the land but of the buildings. The whole tenor of the agreement shows that the title of the lessees was precarious. It was monthly tenancy liable to be terminated with a notice under the Transfer of Property Act, and there was only a grace that the lessees, when evicted, might remove buildings within one month of their eviction. This precarious interest was obtained by the assignees by all assignment, and the same thing applies to them. If the original lessees took on lease not only the land but also the buildings, 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. By the admissions in the deed of lease and the various clauses, it is quite clear that these buildings cannot now be described as buildings constructed under an agreement with the Government, but rather as buildings belonging to Government which were leased out with the land but in respect of which by a concession, the lessees were entitled to remove the buildings within one month after eviction. In our opinion, the suit as laid for vacant possession of the site and in the City Civil Court was competent.15. It was contended that the contract was incapable of being performed, because at least between the present appellant and his sub-tenants the provisions of the Rent Control Act would apply, and he would not be able to evict them in his turn. It was, therefore, argued that this impossibility on the part of the appellant to fulfil his obligations to deliver vacant possession rendered that portion of the lease deed unenforceable and void. It is to be noticed that the appellant does not claim that by reason of the impossibility the whole of the lease deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justified without any more. He only seeks to show that that portions of the deed dealing with delivery of vacant possession has become impossible of performance. Such a situation had also arisen in the case of the Bombay High Court in AIR 1956 Bom. 364 , and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appellant is a matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the right conferred on him, that is an unfortunate circumstance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant possession of the site, and under the agreement, if the appellant does not remove the buildings within one month, then they would be entitled to take possession of the land with the buildings, whatever might be the rights of the sub-tenants, and as to which, as we have pointed out already, we say nothing.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The amendment achieved two different things. It enabled the lessee of the particular kind of budding described in cl. (a) to create sub-tenancies in spite of the ban against sub-tenancies contained in S. 15. It also excluded from the operation of sub-sec. (1) the buildings specified in cl. (a) of that 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-sec. (1) could mean the land or the buildings or both Sub-section (4) (a) 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-sec. (4) (a) of S. 4 was thus limited to buildings, and did not extend to land. The sub- section, however, was drafted somewhat inartistically, and the obscurity of the language presents some difficulty. The trial Judge followed a decision of the Bombay High Court reported in Ram Bhagwandas v. Bombay Corporation of the City of Bombay, AIR 1956 Bom 364  . 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 O. 21,R. 103 of the Civil Procedure Code against the Municipal Corporation, but the suit was dismissed. In the appeal which was filed in Municipal Corporation was the owner of he plots in question, but protection was claimed on the basis of sub-sec. (4) (a) of S. 4 of the Rent Control Act. Chagla, C. J. 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 up on 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-sec. (4) (a) 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" He, therefore, held that the words "erected on any land held by any person from 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 that protection is sought.12. In this case, it is contended, 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-sec. (4)(a) of S. 4 would be available, no matter how many hands the property might have changed. This argument was considered by the learned Chief Justice, and was rejected.13. In our opinion, though the section is far from clear, the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this subsection came to be enacted. Those circumstances were: In a case in which the holder of the land from a local authority was seeking to evict his sub-tenants, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that sub-sec. (1) applied and the suit was not governed by the Rent Control Act.The amendment was enacted to cut down by a definition the operation of the words "any premises belonging to the government or a local authority, by excluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Government or continued to belong to it. Clause (b) of sub-sec. (4) excluded also S. 15, which prohibited sub-letting by a tenant. That, however, was limited to the case of buildings only, and did not apply to the case of land. In this situation, any action by the Government or the local authority in respect of land falls to be governed by sum sec. (1) and not sub-sec 4(a) and sub-sec. (1) puts the case in relation to Sand entirely out of the Rent Control Act. The net result, therefore is that if Government or a local authority Giants to evict a person from the land, the provisions of the Rent Control Act do not. Come in the way. For the same reason, the suit for ejectment does not have to he filed in the Court of Small Causes, as required by the Rent Control Act but in the City Civil Courts as has been done in this case.14. There is one more reason in this case for reaching the same conclusion, because at the time of the lease in 1942, the lessees, from the appellant claims assignment, were given a lease not only of the land but of the buildings. The whole tenor of the agreement shows that the title of the lessees was precarious. It was monthly tenancy liable to be terminated with a notice under the Transfer of Property Act, and there was only a grace that the lessees, when evicted, might remove buildings within one month of their eviction. This precarious interest was obtained by the assignees by all assignment, and the same thing applies to them. If the original lessees took on lease not only the land but also the buildings, 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. By the admissions in the deed of lease and the various clauses, it is quite clear that these buildings cannot now be described as buildings constructed under an agreement with the Government, but rather as buildings belonging to Government which were leased out with the land but in respect of which by a concession, the lessees were entitled to remove the buildings within one month after eviction. In our opinion, the suit as laid for vacant possession of the site and in the City Civil Court was competent.15. It was contended that the contract was incapable of being performed, because at least between the present appellant and his sub-tenants the provisions of the Rent Control Act would apply, and he would not be able to evict them in his turn. It was, therefore, argued that this impossibility on the part of the appellant to fulfil his obligations to deliver vacant possession rendered that portion of the lease deed unenforceable and void. It is to be noticed that the appellant does not claim that by reason of the impossibility the whole of the lease deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justified without any more. He only seeks to show that that portions of the deed dealing with delivery of vacant possession has become impossible of performance. Such a situation had also arisen in the case of the Bombay High Court in AIR 1956 Bom. 364  , and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appellant is a matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the right conferred on him, that is an unfortunate circumstance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant possession of the site, and under the agreement, if the appellant does not remove the buildings within one month, then they would be entitled to take possession of the land with the buildings, whatever might be the rights of the sub-tenants, and as to which, as we have pointed out already, we say nothing.