I may add that Mr. Chhatrapati had vehemently contended that the judgment of the Supreme Court in Subhadra's case, is a judgment by four Judges' Bench and the subsequent judgment in Vasudev's case, is by three Judges' Bench and as such the decision of the Subhadra's case should be preferred as the same has been rendered by a larger Bench. In support of his contention, Mr. Chhatrapati placed reliance upon the decisions of the Supreme Court in Mattulal v. Radhe Lal, MANU/SC/0010/1974 : [1975]1SCR127 and Union of India and another v. Raghubir Singh (dead) by Lrs. etc., MANU/SC/0619/1989 : [1989]178ITR548(SC) . It is not possible to accede to the contentions of Mr. Chhatrapati. When the earlier judgment of the Supreme Court has been considered by a later decision of the same Court in Vasudev's case, this Court will be bound by the said decision in Vasudev's case. As pointed out by the Full Bench of Karnataka High Court, if the Supreme Court itself in a later decision adverts to its earlier decision and lays down the import of the former on any aspect, such later decision is conclusive so far as the High Court is concerned.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 864 of 1990
Decided On: 08.07.1994
Govindram Bros. Pvt. Ltd. and Ors. Vs. Alexander Benedict Joseph Pereira
Hon'ble Judges/Coram:
A.P. Shah, J.
Citation: 1995(1) MHLJ115,1995(2) Bom CR 531
Whether a property which was an agricultural land at the time of letting and had ceased to be agricultural land on the date of the suit for eviction is a 'premises' within the meaning of section 5(8) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the said Act", for short), and would attract provisions of the said Act, is the principal issue, which falls for consideration in this Civil Revision Application among other issues.
2. The respondent (original plaintiff) is the owner of an open plot of land admeasuring 2420 sq. yds. situate at Gundavli, on Kurla-Andheri Road, Bombay. By Indenture of Lease dated November 18, 1950, the respondent granted lease of the said open plot in favour of the petitioners (original defendants) on the Terms and Conditions set out in the Indenture of Lease. The said lease was to commence from April 1, 1949 for a period of 20 years and was to end on March 31, 1969, with a clause pertaining to renewal of the lease. Clause 5 of the lease-deed provided as follows:--
"The lessee shall before the 30th day of September 1950 erect building on the said land hereby demised of the value of not less than Rs. 12,500/- and shall at his own cost keep the buildings from time to time erected on the said land in good and tenantable repair and shall permit the lessors with or without workmen after 48 hours' `notice' in writing to enter upon the said land and inspect the said buildings with a view to give notice to the Lessee of such want of reparation as may be found on such inspection. The lessee shall keep the buildings on the land insured to their value in the names of the lessors and lessee and will duly pay all monies payable for the purpose and will produce the insurance policy and the receipt for the payment of the said monies for lessors inspection."
And Clause 8 of the lease-deed provided as under :-
"The lessors shall at the request and costs of the lessee make or join in such applications as may be necessary to be made to enable the lessee to construct a building or buildings on the said land or to enable the lessee to obtain license or licences for carrying on the business of Cinema Studio and/or Cinema Theatre on the land hereby demised. It being understood that whether such applications are granted or not these presents shall be binding on the parties."
There is no dispute that pursuant to the aforesaid terms of the lease-deed, the petitioners constructed buildings on the said open plot and started a film studio in the name and style of 'Navrang Studio'. On expiry of the lease period on March 31, 1969, the respondent filed Short Cause Suit No. 6732 of 1972 against the petitioners in the City Civil Court at Bombay for recovery of possession of the leasehold property contending, inter alia, that the period of lease has come to an end and that since lease was not for any of the purposes mentioned in section 6(1) of the said Act, the petitioner's are not entitled to protection of the said Act.
3. The petitioners challenged the jurisdiction of the City Civil Court contending, inter alia, that in view of the fact that dispute was between a landlord and his tenant, the City Civil Court has no jurisdiction to try the suit. Therefore, the City Civil Court framed the preliminary issue regarding the jurisdiction of the Court to entertain and try the suit. After framing the preliminary issue, the City Civil Court was pleased to allow the parties to lead the evidence. The respondent tendered oral evidence of himself only and produced and proved the lease-deed between the parties and a certified 7/12 extracts of the lease property. The petitioners did not lead any oral and documentary evidence. On consideration of the material produced on record, the City Civil Court was pleased to decide the preliminary issue in the affirmative holding that it had the jurisdiction to try the suit. The City Civil Court held, inter alia, that the property was an agricultural land on the date of letting and, therefore, it is not a 'premises' within the meaning of section 5(8) of the said Act. The City Civil Court further held that the date, which is required to be taken into consideration for ascertaining whether the suit premises is a 'premises' for the purposes of section 6 of the said Act, is the date of letting i.e. either April 1, 1949 or the date of agreement i.e. November 18, 1950 and as the suit property was an agricultural land on either of these dates, the provisions of the said Act are not attracted. In arriving at this finding, the City Civil Court relied upon a judgment of the Supreme Court in Mst. Subhadra v. Narsaji Chenaji Marwadi, MANU/SC/0287/1961 : [1962]3SCR98 . The City Civil Court also held that the lease-deed entered into between the respondent and the petitioners was pertaining to construction of any type of building by the petitioners i.e. lessees and as such this purpose is not covered by section 6(1) of the said Act and, therefore, on that count also, the provisions of the said Act are not applicable.
4. As indicated earlier, the main ground on which the City Civil Court has held that the provisions of the said Act are not applicable to the suit property is that the suit property in question having been agricultural land as on the date of lease could not be considered as 'premises' within the meaning of section 5(8) of the said Act. This view proceeded on the basis that the relevant date for purposes of ascertaining whether the land is 'premises' within the meaning of section 5(8) of the said Act was the date of letting. The said Act in section 5(8) defines the expression 'premises' to mean 'any land not used for agricultural purposes'. With reference to what point of time this condition should be shown to exist, would be the question. Such a question can rarely be solved otherwise than by an examination of and with reference to the concerned statute itself and its objects and purposes. Section 12(1) of the said Act affords immunity to tenants from eviction merely on the ground of the expiry of the lease period. Section 28 ousts the jurisdiction of the Ordinary Civil Courts for any suit by the landlord against his tenant for recovery of premises, as such suit can be entertained only by the Courts specified in the said section. The said Act has been enacted with a view to amend and consolidate the law relating to the control, of rents and repairs, of certain premises, of rates of hotels and lodging houses, and of eviction. As seen above, section 5(8) defines what precisely is meant by the word 'premises', while section 6 provides that Part II of the said Act 'shall apply to premises let for residence, education, business, trade or storage.' Section 12 and section 28 of the said Act fall under this Part II and unless, therefore, it is shown that Part II is applicable to the property in dispute, the question of claiming any protection under section 12 of the said Act cannot arise. Three requirements shall have to be shown to have been complied with before Part II of the said Act is held applicable. Firstly, it shall have to be shown that the area in dispute is specified in Schedule I. On this point, there is no dispute as City of Bombay is specified in Schedule I. Secondly, it shall have to be shown that the premises in dispute are let for the purposes enumerated in sub-section (1) of section 6 and, thirdly, it shall have to be shown that the property in dispute is covered by the word 'premises' as defined in section 5(8) of the said Act.
5. It is thus clear that the crucial point in this case is whether Part II of the said Act, applies to the property in dispute at all. Expiry of lease period by itself cannot furnish cause of action for eviction, and such eviction suit cannot lie in the Ordinary Civil Court, if Part II of the said Act is held applicable to the lease of the lands in dispute. The City Court has proceeded on the basis that the use of the land other than the agricultural purposes in the case of open plots must be in existence on the date of lease. The said Act is a beneficial piece of legislation and it is meant to give protection to the tenants of the properties. As preamble itself shows, it seeks to amend and consolidate the law relating to the control of rents and eviction therefrom in regard to 'certain premises'. Obviously, the existence of any such situation shall have to be ascertained with reference to the date on which the protection is claimed. The said Act as a whole does not even remotely indicate that the date of lease or the date of N.A. permission is in any way relevant for claiming benefit or protection of the said Act. Mr. Chhatrapati, learned Counsel for the respondent, was unable to show any provision in the said Act in support of his contention that the question of protection is to be decided with reference to the date of leasing. In the very nature of things, the scheme of the said Act contemplates protection to all the tenants, who were the tenants of the premises on the date when this enactment was brought into force without regard upon what precise date the tenancy was brought into existence and on what precise date the lands on which the structures were raised, were authorised by the Collector to be used for non-agricultural purposes. The protection afforded by section 12 and the immunity from eviction covered by the said section and section 13 of the said Act does not depend on what precise date the tenancy had commenced or constructions were raised. The plain meaning of section 5(8) of the said Act is that in order that land is 'premises' by the statutory standards it must be land 'not used for agricultural purposes'. There is no provision in the said Act, which freezes this condition with reference to or as upon any particular point of time. Keeping in mind the entire scheme of the said Act and having regard to the fact that the object of this statute is to protect the tenant from eviction, it becomes clear that the point of time at which requirement of section 5(8) should be satisfied would be the point of time at which either the protection given under the said Act is sought to be asserted or a right conferred by it, is sought to be enforced. The building in dispute is admittedly constructed on the land legally, on obtaining lease of the open land and occupied by the petitioners legally was the 'premises' thus within the meaning of section 5(8) and was so let out for trade and or business within the meaning of section 6(1) of the said Act on the date of the institution of the present suit. It did not cease to be such premises, and so let out, either because on the date of lease, non-agricultural permission was not granted or because on that date construction was not in existence. Plain language of section 5(8)(1) or section 6(1) of the said Act does not admit of any other limitation and buildings, which fall within the four corners of the above clauses cannot be excluded merely because the date of lease was earlier or because N.A. permission was not effective from the date of the lease.
6. Mr. Chhatrapati, however sought to maintain that the four Judges' Bench of the Supreme Court in Mst. Subhadra's case (supra) has categorically held that the relevant date for ascertaining the question as to protection is the date of letting and in view of that judgment, it is clear that the petitioners are not entitled to protection of the said Act. In order to appreciate the submission made by Mr. Chhatrapati, it will be necessary to consider the facts in Mst. Subhadra's case first. A certain Bai Jekor and her two sisters owned plot No. 68 of Town Planning Scheme No. 1 Jamalpur, Ahmedabad. Under a lease dated 15th October, 1934 the owners granted a lease of this land in perpetuity to certain Gajjar brothers. On 7th February, 1946, the Gajjars sublet the plot, also in perpetuity to the respondent Narasaji Chennaji Marwari who, in turn by deed dated 25th April, 1947 sublet the plot to appellant Subhadra. All the deeds provided that the lessees may construct buildings on the demised land. As on the dates of all the three leases, the plot was assessed for agricultural purposes, sanction for non-agricultural user of the plot was accorded by the Collector of Ahmedabad only on 14th November, 1949. Thereafter, i.e. on 27th October, 1950, Subhadra applied to the Court of Small Causes, Ahmedabad, for fixation of standard rent of the plot under section 11 of the Bombay Act 57 of 1947. The Supreme Court, affirming the decision of the High Court in this behalf, held that the plot could not be regarded as 'premises' inviting the application of the Part II of the Act and that an application for fixation of standard rent was, therefore, not maintainable, Shah, J., as he then was observed :
"......In the year 1947, the plot was undoubtedly lying fallow, but on that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under section 67 of the Bombay Land Revenue Code........There is no dispute that Part II applied to the area in which the plot is situated; but before the appellant could maintain an application for fixation of standard rent under Part II, she had to establish that the plot of land leased was `premises' within the meaning of section 5(8) of the Act and that it was let for residence, education, business, trade or storage. For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage....." After referring to the provisions of section 5(8) of the Act, His Lordship proceeded to say :
"(3) Reading section 5 sub-clause (8) with section 6(1) it is manifest that Part II of the Act can apply in areas specified in Schedule II to land (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is `premises' for purposes of section 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as `premises' inviting the application of Part II of the Act. The application filed by the appellant under section 11 for fixation of standard rent was therefore not maintainable."
It cannot be disputed that the aforesaid observations of the Supreme Court, prima facie, support the contention of Mr. Chhatrapati that the material date for ascertaining whether the property is 'premises' on the date of letting. It must be conceded that if the matter were to rest with this judgment alone, it would have been necessary for me to accept the contention of Mr. Chhatrapati and dismiss this Revision Application following the above judgment. Mr. Abhyankar, learned Counsel for the petitioners, however, brought to my notice a subsequent decision rendered by the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, MANU/SC/0531/1970 : [1971]1SCR66 . Mr. Abhyankar submitted that this latest decision adverts to the earlier decision and lays down the import of the former on the issue as to what is the relevant date in order to ascertain entitlement to protection of the said Act.
7. In Vasudev's case (supra) the facts were as follows : Appellant Vasudev Dhanjibhai Modi was the owner of No. 15/3 of Jamalpur Town Planning Scheme, Ahmedabad. Since 1948, one Rajabhai Munshi was a tenant of the land at an annual rental of Rs. 411. Alleging that Munshi had committed default in payment of rents, Vasudev instituted a suit in the Court of Small Causes, Ahmedabad, for an order of ejectment and for recovery of rent in arrears. The trial Court dismissed the action; but the appellate Court granted a decree for ejectment. The High Court of Bombay affirmed the decree of the appellate Court. However, on the execution side, Munshi raised the contention that the Court of Small Causes had no jurisdiction at all to entertain the suit, as according to him, Parts II and III of the Bombay Act 57 of 1947 did not apply to open lands and that the entire proceeding culminating in the order of affirmance of ejectment made by the High Court were without jurisdiction. The executing Court rejected this objection. Appeal against that rejection was also unsuccessful but in a petition filed under Article 227 by Munshi, the High Court reversed these decisions. The landlord Modi came up to the Supreme Court by special leave. The Supreme Court reversing the decision of the High Court and restoring that of the Court of Small Causes observed :
"The expression 'premises' in section 5(8) of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 does not include premises used for agricultural purposes. By section 6 of that Act, the provisions of Part II which relate to conditions in which orders in ejectment may be made against the tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is the date on which the right conferred by the Act is sought to be exercised; Mst. Subhadra v. Narasaji Chennaji Marwadi, MANU/SC/0287/1961 : [1962]3SCR98 ."
This judgment thus clearly lays down that in ascertaining whether the land demised is used for agricultural purposes, the crucial date is the date on which the right conferred by the Act is sought to be exercised. In view of this authoritative pronouncement of the legal position, I have no hesitation in holding that the date of the lease or the date on which non-agricultural permission was granted by the Collector cannot be of any consequence for determining as to whether the 'premises' were covered by section 5(8) of the said Act. It is not, therefore, possible to deny the protection of the said Act to the petitioners merely because on the date of the lease, the suit property was an agricultural land. The suit property had become 'premises' within the meaning of section 5(8) of the said Act and the said Act had become applicable to the suit property when the petitioners raised construction on the property after obtaining non-agricultural permission, but long before the present suit was instituted.
8. Mr. Abhyankar also brought to my notice that the judgments of the Supreme Court in Subhadra's case and Vasudev's case were considered by the Division Bench of this Court (Deshmukh & Deshpande, JJ.), in Appeal From Order No. 413 of 1969, decided on August 23, 1971 and after taking into consideration the said two judgments of the Supreme Court, the Division Bench held that the date of lease or the date on which the non-agricultural permission was granted by the Collector cannot be of any consequence for determining as to whether the premises were covered by section 5(8) and section 6(1) of the said Act and the question as to entitlement to the protection will have to be ascertained with reference to the date on which the protection is claimed. The Division Bench has also held that if the provisions of the said Act are construed in the manner suggested, the provisions of section 5(8) will be liable to be declared as ultra vires.
9. A reference may also be made to the decision of the Full Bench of the Karnataka High Court in Govinda Naik G. Kalghatagi v. West Patent Press Co. Ltd., MANU/KA/0141/1980 : AIR1980Kant95 , wherein the Karnataka High Court, while considering similar issue under the Karnataka Rent Control Act (22 of 1961), held that a property, which was an agricultural land at the time of letting and which ceased to be agricultural land on the date of the petition for eviction is 'premises' within the meaning of section 3(n) attracting the provisions of section 21 of the said Act No. 22 of 1961. The Full Bench of Karnataka High Court also considered the effect of the Supreme Court judgment in Vasudev's, case. Speaking for the Bench, Venkatachaliah, J., (as His Lordship then was) observed as follows :---
"Secondly, if the Supreme Court itself in a later decision adverts to its earlier decision and lays down the import of the former on any aspect, that, in our opinion, is and ought to be conclusive so far as the High Court is concerned, and the High Court cannot be called upon to embark upon an engagement of searching out possible points of controversy or discordance in the two pronouncements. Whenever it is urged before it that there is an element of irreconcilability in the pronouncements on any proposition of law by the Supreme Court, the proper course for the High Court is, first, to try to find out whether the apparently differing notes are really different at all. This task of the High Court is rendered all the lighter if the Supreme Court itself has, or must be taken to have, explained the earlier pronouncement. In the present case, the same learned Judge, Shah, J., who rendered the decision in Subharda's case, has in para 4 of Vasudav's case, stated what the law on the matter is. Are we to embark upon a further enquiry? The answer to this, from the points of view of principle and propriety must necessarily be in the negative."
10. Mr. Abhyankar also drew my attention to the Division Bench judgment of this Courts in Ram Bhagwandas v. Municipal Corporation of the City of Bombay, MANU/MH/0207/1956 : AIR1956Bom364 and the judgment of the Supreme Court in Kanji Manji v. The Trustees of the Port of Bombay, 65 Bom.L.R. 258. Though context and the precise points that has arisen in the said cases for consideration were undoubtedly different, the observations made therein lead some support to the contention of Mr. Abhyankar with regard to the true meaning of phraseology employed in section 5(8) and section 6(1) of the said Act. There the controversy was whether the words 'a building erected on any land held by a person from local authority' in section 4(4)(a) of the said Act refer to the date of erection of such building or refer to any building so erected and found in existence on the date when rights under the said Act were claimed. The learned Chief Justice, speaking for the Court answered the question as follows :---
"A building 'erected on any land held by a person from a local authority' is descriptive of the building. It does not emphasise the point of time when the building was erected. What is emphasised is that the nature of the building must be such as to satisfy the test that it is erected on a land held by a person from a local authority, and the test must be applied at the time when protection is sought."
These observations of Chagla, C.J., were quoted with approval by Hidayatullah, J., as he then was, while speaking for the Supreme Court in the judgment reported in 65 Bom.L.R. 258, Kanji Manji v. The Trustees of the Port of Bombay.
11. Mr. Abhyankar next drew my attention to the judgment of the Supreme Court in Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha, A.I.R. 1966 S.C. 1596. In that case, provisions of Part II of the said Act were applied to the premises in dispute long after the suit was instituted in the ordinary Court, but before the decree for possession in favour of the landlord was actually passed by the trial Court. The question arose as to whether such a tenant was entitled to claim protection of section 12 of the said Act in view of the fact that the said section and Part II of the said Act was not in existence on the date when the suit was instituted. Their Lordships of the Supreme Court held that in view of the nature of the enactment, the tenant was entitled to claim protection of section 12 notwithstanding the fact that the said protection was not available to him on the date when the suit was instituted. Mr. Abhyankar submitted that if the tenant is entitled to claim the protection of the said Act, even when Part II of the said Act is applied during the pendency of the suit, how and on what basis the said protection can be denied to any tenant of the premises to which the said Act had been applied long before the institution of the suit merely on the ground that the permission for the non-agricultural use of the land was not granted to the premises in dispute on the date when the lease was executed. The submission of Mr. Abhyankar appears to be unanswerable.
12. In Davies v. Gilbert, (1955)1 All E.R. 415, the Court of Appeal was dealing with the question whether a cottage and a certain extent of woodland attached thereto were within the protection of the Rent Restrictions Act. In 1937, the then owner let the cottage and the woodland to the defendant. The cottage, at that time was rated at £4 per year; the woodland had not been rated. In 1938, the defendant cleared the undergrowth and opened a caravan-site. In 1953, the caravan site was rated at £9 a year, but the cottage continued to be rated at £4 a year. Plaintiff, who was the transferee of the landlord's interest, sought possession seeking to put the land for agricultural use. Denning, L.J., upholding the order denying protection to the tenant under the statute and granting possession stated :---
"The first question is whether on September 1, 1939, the property came within the old control. If it came within the old control, it remains governed by the Acts relating to old control and is not governed by the Rent and Mortgage Interest Restrictions Act, 1939. The question whether it came within old control in 1939 depends on this : What was the rateable value of the cottage?
XXX XXX XXX
What, however, is the effect of the new rating in 1953? This caravan site has now been rated at L9 a year. That is more than a quarter of the rateable value of the cottage, which remains at £4. Does this new rating take the premises out of old control? This raises the question : What is the proper time for the test of rateable value? Is it the initial date of the letting or is it the date when possession is sought by the landlord?
In my judgment the test of rateable value under the old control is to be determined when the landlord seeks to enforce his rights. At the time when these proceedings were brought the rateable value of this woodland of caravan site was £9 and the ratable value of the cottage was £4: therefore, the whole ceased to be within the Rent Restrictions Acts, and the plaintiff is entitled to possession ...."
The principle stated above applied to the case on hand as well.
13. I may add that Mr. Chhatrapati had vehemently contended that the judgment of the Supreme Court in Subhadra's case, is a judgment by four Judges' Bench and the subsequent judgment in Vasudev's case, is by three Judges' Bench and as such the decision of the Subhadra's case should be preferred as the same has been rendered by a larger Bench. In support of his contention, Mr. Chhatrapati placed reliance upon the decisions of the Supreme Court in Mattulal v. Radhe Lal, MANU/SC/0010/1974 : [1975]1SCR127 and Union of India and another v. Raghubir Singh (dead) by Lrs. etc., MANU/SC/0619/1989 : [1989]178ITR548(SC) . It is not possible to accede to the contentions of Mr. Chhatrapati. When the earlier judgment of the Supreme Court has been considered by a later decision of the same Court in Vasudev's case, this Court will be bound by the said decision in Vasudev's case. As pointed out by the Full Bench of Karnataka High Court, if the Supreme Court itself in a later decision adverts to its earlier decision and lays down the import of the former on any aspect, such later decision is conclusive so far as the High Court is concerned. The learned Judge of the City Civil Court was thus clearly in error in holding that the provisions of the said Act are not applicable on the ground that the property was an agricultural land on the date of letting. It may be mentioned that Mr. Abhyankar also challenged the finding of the City Civil Court that the land was an agricultural land on the date of letting. But it is not necessary to express any opinion on this aspect, as I am of the opinion that the relevant date in order to ascertaining the applicability of the said Act is the date on which the suit was filed and not the date of letting.
14. Turning now to the question as to whether the lease was for any of the purposes mentioned in section 6 of the said Act, it will be necessary to examine the relevant clauses of the lease-deed. Clause 6 of the lease-deed makes it clear that the land was given for construction of buildings. Clause 8 of the lease-deed makes it clear that the purpose of the lease was to construct a building or buildings on the leasehold land for carrying on the business of cinema studio and/or cinema theatre and the said business purpose is covered under section 6 of the said Act. The words in Clause 8 - ".... to enable the lessee to construct a building or buildings on the said land or to enable the lessee to obtain licence or licences for carrying on the business of cinema studio and/or cinema theatre on the land hereby demised", clearly mean that even if no buildings are constructed, the land was to be used for the business of cinema. It is also pertinent to note that in paragraph 1 of the plaint, the respondent (original plaintiff) has stated that the lease was granted on an open plot of land admeasuring 2420 sq.yds. in favour of the defendants on the Terms and Conditions set out in the Indenture of Lease. It is thus clear that the effect of Clause 8 of the said Deed is that the buildings were intended for business purposes. Mr. Chhatrapati, however, submitted that in similar set of facts, the Supreme Court has held that the lease cannot be said to be for any of the purposes mentioned in section 6(1) of the said Act and in that behalf, Mr. Chhatrapati drew my attention to the judgment of the Supreme Court in Osman Fakir Mahomed v. Akbar Javed Sadakya and another, A.I.R. 1970 S.C. 1899. The facts of the said case were that by an Indenture of Lease dated December 5, 1958, one Louis Fernandes demised the whole of the suit plots in favour of the respondents for a period of 99 years commencing from December 1, 1956 on a monthly rent of Rs. 401 and on the Terms and Conditions contained in the said Indenture. Clause 8 of the Lease provided that the lessees "at all times and from time to time hereafter to construct and erect upon any part of the land hereby demised buildings of every description howsoever. The Supreme Court held that since the purpose for which the land was demised clearly was for constructing buildings of any description and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of section 5(8), was not premises 'let for residence, education, business, trade or storage' within the meaning of section 6(1) and, therefore, section 18(1) would not apply. Speaking for the Bench, Shelat, J., has observed that 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. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. The fact that the lease permitted the lessees to take construction loans from prospective tenants of the buildings to be constructed by the lessees does not affect the purpose for which the land was leased.
15. In my opinion, the reliance placed upon the judgment of Osman Fakir's, case (supra) is completely misconceived. To my mind, the ratio of the said case has no application to the facts and circumstances of the present case. In the present case, Clause 5 of the lease-deed cannot be read in isolation and it has to be read in juxtaposition with Clause 8 of the lease-deed and so read, it is clear that the premises were leased for the purpose of constructing buildings on the property for the purpose of running a film studio or cinema theatre. In my opinion, the lease was thus clearly for the purpose of business, which is one of the purposes of section 6(1) of the said Act. It is also not possible to agree with the observations of the City Civil Court that Clause 8 of the lease-deed pertains only to an area of co-operation required to be extended by the plaintiff to defendant No. 1. In my opinion, Clause 8 clearly indicates that the buildings were intended for business purpose, which is covered by section 6(1) of the said Act. The suit premises are thus governed by the provisions of the said Act and the suit filed by the respondent on the ground of expiration of lease-deed in the City Civil Court is not maintainable, as the City Civil Court has no jurisdiction to entertain such suit in view of the provisions of section 28 of the said Act.
16. In the result, the Civil Revision Application succeeds. Rule is made absolute in terms of prayer Clause (a). The respondent's suit being Short Cause Suit No. 6732 of 1972 is dismissed as being not maintainable. No order as to costs.
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