Judgment · Supreme Court

the term the yearly rent of Hs. 2,!116 by equal quar- terly payments. By the said Indenture the lessee co-operative covenanted to pay all rates and taxes, not to use or to Hansina Society 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 on 48 hours' notice, to use the demised premises for residential purposes or as offices and schools only and not as a public house Gr 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 destrnyed or damaged by fire or otherwise. There was a proviso for re-entry for non-payment of rent for 30 day5 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 on April 26, 1948, Shri Bhatia Co-operative Housing Society Tjimited, a society registered under Bombay Co-operative Societies Act, VII of 1921, the appellant before us, acquired the lessee's interest in the demised premises. On June 29, 1948, the appellant served a notice on the respondent before us who was a monthly tenant in occupation of Block No. B/2 on the ground floor of the New Sitarani Building at a monthly rental of Rs. 52-5-9 to quit and vacate the same on J nly 31, 1948. By his advocate's reply the respondent maintained that he had been paying the rent regular ly and otherwise performing the terms of his tenancy and claimed the protection of the Bombay Rents, Hotel and r_,odging House Rates Control Act, 1947 (Act LVII of 1947). S.C.R. SUPREME COURT REPORTS 189 Das J. Ltd. v. The respondent not having vacated the block under 1952 his occupation on the expiry of the notice to quit, the . appellant filed summary Suit No. 106 of 1948 against 0 Bhati~· the respondent in the City Civil Court at Bombaj for Ho;;:,~;r;0;~:ty vacant possession of the said Block No. B/2 on the ground floor of the said New Sitaram Buildings and mesne profits from August 1, 1948, until delivery of D. c. Patel. 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 City Civil 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 will- ing to do so, that the New Sitaram Building had been constructed at the expense of the appellant's predecessor premises belonged to the appellant and not to the Govern- ment or a local authority and that the respondent was entitled to the protection of the Bombay Act LVrI of 1947. Leaving out the issue as to whether the appellant was entitled to any com pensation, there were 4 issues raising in effect two points, namely, (1) whether the Court had jurisdic- tion and (2) whether the Bombay Act LVII of 1947 applied to the premises in suit. The learned City Civil Court Judge in a well-con sidered and careful judgment answered the issues in favour of the appellant and decreed the suit. The respondent appealed to the High Court. 'fhe 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 obtfl.ined special lefl.ve 25 1952 Bhatia co-operative 190 SUPREME COURT REPOR'rS [1953] of this Court to prefer this appeal and filed this appeal pursuant to such leave. 0 D. Das J. I~earned counsel for-the respondent took a preli- Ho1<sing Society minary objection, founded on the provisions of sec- r,ta. tion 28 of the Bombay Act, that the City Civil Court bad no jurisdiction to entertain the suit, for that section v. · Patel. clearly states that in Greater Bombay the Court of Small Cayses alone shall have jurisdiction to enter tain 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 contend ed 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 bas no jurisdic tion but if it does not, then it has such jurisdiction. 'rbe question at once arises as to who is to decide this · point in controversy. It is well settled that a Civil Court bas 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, iu agreement with the High Court, that this preliminary objection is not well founded in principle or on authority and sbonld be rejected. The main controversy between the parties is as to whether the Act applies to. the demised premises. 'l'be solution of that controversy depends upon a true construction of section 4 (1) of the Bombay Act L vn of 1947, ,,vbicb rqqs as follows;~ ;+ • ' . - S.C.R. SUPREME COURT REPORTS 191 "4. (1) 'rhis 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 co-op:r:~ive other like relationship created by a grant from"the Housing Society 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 D. c. Patel. local authority." i 9s2 . Bh 1 Ltd. v. Das J. It is clear that the above sub-sectionJ:i.as three parts, namely- ( I) This Act shall not apply to premises belonging to the Government or a local authority, (2) This·Act shall not apply as against the Govern ment to any tenancy or other like relati-0nshi p created by grant from the Government in respect of premises taken on lease or requisitioned by the Government, (3) This Act shall apply in respect of premises let 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 con trol 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 ex ception to that general object. 'rhe purpose of the first two parts of section 4 (1) is to exempt two cases of relationship of landlord and tenant from the opera tion 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 GoYernment bi1t the first part makes no 192 SUPREME COURT REPORTS [1953j 1952 Bh t· reference to any tenancy or other like relationship at all but exempts the premises belonging to the Govern- 0 _ •r:~iv• ment or a local authority. If the intention of the first Ho:,:,i:; society par~ were as formulated in item (1), then the first part of section 4 (1), like the second part, would have run thus :- Ltd. v. 0 D. · Patel. Das J. 'l'bis Act shall not apply to any tenancy or other like relationship created by Government or local authority in re~pect of premises belonging to it. The Legislature was familiar with this form of ex pression, 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 on the premises belonging to Go~ernment 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 opera tion of the Act, not only as betwelln the Government or a local authority on the one ha.nd and its lessee on the other, but also as between that lessee and his sub tenant, 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 G overnmellt or one or other local authority, e.g., Bombay Port Trust and Bombay Municipality and the greater number of ten ants will not be able to avail themselves of the bene In the first place, the fit and protection of the Act. ) .J- S.C.R. SUPREME COURT REPORTS i93 w52 . Bl Ltd. v. D. c. Patol. Das J. preamble to the Act clearly shows that the object of the Act was to consolidate the law relating to the control of ren.ts and repairs o~ certain premises and not 00_0;:~:~ivo of all premises. The Legislature may well have Housing Society t.hought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing !es- sees to take up building leases on terms advantageous to the Government or a local authority. Further, as pointed out by Romer L.J. in Glarkv. Downes(1), which case was approved by Lord Goddard C.J. in Rudler v. ) such immunity will increase the value of the Franks( 2 right of reversion belonging to the Government or a local authority. The fact that the Government or a local authority may be trusted to aet fairly and induced the Legislature all reasonably may have the more. readily to give such immunity to pre mises 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 in terests 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 resp on· dent 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 If such were the con the premises or any part of it. sequences, 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 (2) (1947) l K.B. 530. (1) [1931) 145 L.T. 20. 194 SUPREME COURT REPORTS [1953] 1953 Bhatia protection of the interests of the sub-tenants in pre- n:iises belonging t? the Gov~rnment ?r a local autho- Go-operativ• nty cannot ovetnde the plam meanmg of the pre Ho .. sing Society amble or the first part of section 4 (1) and frustrate the real purpose of protecting and furthering the inter- ests of the Government or a local authority by con·- !erring on its property an immunity from the opera- Ltd. v. n. c. Pate!. Das J. · ti on 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 It is pointed out that it was the. lessee who sense. 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 on rent and terms to be fixed by him, of ejecting sub-tenants, and of assign ing the lease. 'I'herefore, 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 th~ preservation of the building which, on the expiry or sooner deter mination 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 0£ 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 reasouiug, 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 patt 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 s@Ction 105 of the Transfer of Property Act a lease is a transfer only of a rig lit to enjoy the demised premises, but there is no transfer of ownership or interest in the demised premises to the lessee such as there is in a sale (section 54) or a mortgage (section In the present case, the lessee cannot, on his 58). ;t • t S.C.R. SUPREME COURT REPORTS 195 t B' h d "d 1952 . I . h Das J. . ,1atia Ltd. v. It is true own co\renant, use the buildings in any way he likes. He has to use the same only as offices or schools or f canno , wit out t e co-operative or res1 ent1a purposes an lessor's consent, use them for purposes of any trade or Housing society business. He cannot pull down the buildings or make any additions or alterations without the lessor's con- sent. He cannot build upon the open space. He D. o. Patel. 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 on giving 48 hours' notice. All these covenants clearly indicate that the lessor has 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. that the lessee erected the building at his own cost but he did so for the lessor and on the lessor's land on 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 agree- ment 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 on that footing. The lessee or a person claim- ing 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. On forfeiture he re-enters upon what has all along been his own property. Said Lord Macnaghten in Heritable Reversionary Company v. Mullar(1):-- (1) (1892] A.C. 598 at p. ()u 1 196 SUPREME COURT REPORTS [1953] 1952 Bhatia Co-operative Housing Society Ltd. v. D. C. Patel. "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 signifi catio"n. They are in fact 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 on the expiry or sooner determination of the lease, for then the lessor could not have demised the premises includ ing the building as he did or before the deter mination o'f the lease exercise auy act of owner ship or any control over it as he obviously has the right to do under the covenants referred to above. The 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 on by learned counsel, then as between the local authority (the lessor) and the lessee also the build ing must for the same reason founded on what have 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 uhder building leases granted by it in respect of land belonging to it. In that case the immunity given to the Government or a local autho rity will be wholly illusory and worthless. In our view in the case before us the demised premises includ ing 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 - ... "' - -+ ,+ . . ,,_ - + S.C.R. SUPREME COURT REPORTS 197 rights to file the suit in ejectment in the City Ci vi! Court and that Court had J. urisdiction to entertain the suit and to pass the decree that it did. Bhatia co-operativa The result, therefore, is that we allow this appeal, Housing Society • 1952 set aside the judgment and decree of the High Cou-rt and restore the decree passed by the City Ci vii Court. The appellant will be entitled to costs throughout in D. c. Patel. all Courts. Ltd. v. Dqs J, 1952 Nov. 10. Appeal allowed. Agent for the appellant: P. G. Gokhale. Agent for the respondent: S. P. Varma . • NEMI CHAND AND ANOTHER v. THE EDWARD MILLS CO. LTD. AND ANOTHER [MEHR CHAND MAHAJAN, DAS, VIVIAN BOSE and GHULAM HASAN JJ.] / · Court-Fees Act (VII of 1870), s. 12-Givil Procedure Gode, 1908, s. 2(ii), 0. VII, r. 11-Decision as to court-fee-Finality Scope of s. 12-Dismissal for non-payment of court-fee-Power of appellate Court to c011sider whether decision abo·ut court-fee was right - Declaratory suit with prayer for conseqne11tial relief-Appeal giving up prayer for conseq1iential relief-J.Iaintainability-Gonrt- fee. In a plaint the following reliefs were asked for, viz., (i) that it be declared that the appointment of defendant No. 2 as chairman of the board of directors of a company is illegal, invalid and ultra vires and that he has no right to act as chairman, managing director etc., and (ii) that a receiver be appointed to take charge of the management of the company. The plaint bore a court-fee stamp of Rs. 10 only but, on the objection of the defendants, ad valorem fee was paid on Rs. 51,000 which was the valuation of the suit. The suit was dismissed and the plaintiff preferred an appeal giving up the second relief and paying a court-fee of Rs. 10 only. The ll.lll\Bllate Court ordered payment of ad valorem court-fee and on non-compliance rejected the memorandum of appeal. On further appeal; ~I! ·