Case: Osman Fakir Mohammed Divecha Vs. All Akbar Javed Sadakya &amp; Another

so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have no operation.6. In Mrs. Dossibai N. B Jeejeebhoy v. Khemchand Gorumal, (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) the appellant had taken on lease, as in the present case, an open land and the question was whether, when such land is being leased not to be used for the purpose of residence in its condition of open land but to be used for the purpose of residence after putting up structures thereon, the letting of land can be said to be letting for residence. The leases there mentioned that the lessee will construct buildings suitable for residential, business, industrial or office purpose. It was held that the leases fell under section 6 (1), and therefore, were within the ambit of Part II of the Act, and consequently, the Small Cause Court at Bombay, as the Rent Court under the Act, and not the ordinary civil court, had jurisdiction to try a suit for possession. Thus, the question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures for residence.8. Mr. Gokhales contention, however, was that S. 6 (1) would apply because the expression "buildings of every description howsoever" would include buildings for residence, and therefore, the lessees were at liberty under cl. (8) of the lease to construct residential buildings also. That may be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6 (1).9. The next argument of Mr. Gokhale was that even though cl. 8 uses the expressions "buildings of every description howsoever", the real purpose for which the lease was taken by the lessees was to construct structures for residence.In support of his argument he relied on cl. 2 (c) of the lease which permits the lessees to take construction loans from prospective tenants of the buildings to be erected by the lessees and urged that since under S. 18 (3) the only construction loans permitted are for financing the construction of residential buildings, the purpose of the lease must necessarily be for erecting residential building or buildings only.This argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into.

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

Explanation:
0[ds]5. The leased premises being land, admittedly not used for agricultural purpose and being situated in the Bombay Suburban District, are clearly premises under S. 5 (8) of the Act. But so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have nothe question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928  = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures formay be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into.