LexOSMAN FAKIR MOHAMMED DIVECHA versus ALI AKBAR JAVED SADAKYA & ANR.
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OSMAN FAKIR MOHAMMED DIVECHA v. ALI AKBAR JAVED SADAKYA & ANR. August 28, 1969 [J.M. SHELAT, C. A. VAIDIALINGAM AND I. D. DUA, JJ.] Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (57 of 1947)-Part JI, Sections 6(1), 18(1)-Pre,..,ises let for construction of "buildings of every description howsoever''-If premises let for purposes in s. 6(1)-Applicability of s. 18. Certain non·agricultural lands in Bombay snburban district were let out to the appellants by their owner. By an indenture of lease the owner demised ~e lands to the respondents. The lease deed empowered the lessees to construct upon the lands "buildings of every description how- soever". It prol)ibited the lessees from mortgaging, assigning or creating any charge on the lands or on the buildings that they may choose to erect thereon, but provided that the lessees could take construction loans from prospective tenants of such buildings. There was a further stipulation that the lessees should pay the le"sor a certain sum as advance. for the oiJservw ance and performance of the covenants of the deed and the amount was to bo deducted from the rent payable. The respondents filed suits under s. 13 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for eviction of the appellant and for recovery of possession of the lands. The appellant resisted the suits on the ground that part of the consideration payable under the lea,. was prohibited under s. 18( I) of the Act, that the lease was, therefore, illegal and void and could not be the basis for the respondents' right to recov~ possession under s. 13 (1). The lower courts rejected this contention. On the question whether the lease attracted section 18(1) of the, Act, HELD : Section 18(1) had no application. [121 A-BJ Part II of the Act, which contairis s. 18, applies only to premises "let for" the purposes mentioned in s. 6(1) namely. "resideilce, education, business. trade or storage." It is the purpose of the lease and not any future choice of a lessee which determines the application of Part JI. That is the clear and obvious meaning of the words "let for" ins. 6(1). [121 A-B, D; 122 BJ B c D E F In the present case the purpose for which the lands were demised clearly G was for constructing: "buiJdings of any descri9tion howsoevef" and not for constructing buildings for "residence, education, business, trade or storage" within the meaning of s. 6(1). Because s. 18(3) permits cons- truction Joans in resoect of residential buildings only and the lease deed provided for taking of construction loans, it does not follow that the pur- pose of the lease was for erecting residential bvildings. The provision for taking construction loans is in the lease deed only as an exception to the covenant against the lessee mortagaging, charging or assigning the demised H land or the buildings which may be, erected thereon and not for laying d6wn the purp0<e for which the l~nd was demised. Although the expres- sion "buildings of any description· howsoever" may include buildings for ...... A OSMAN 1'. ALT AKllAR (She/at, J.) I I 9 rc~idcncc the !"-:"~1..·ci.; n1ny choose not tll put up any structure for nny of the purposes 111cntionc<l ins. 6(1). [1:?2 C-Gl ,\/rs. /)o\·,,ihai .T,·cj,•ehhf'Y \'. Khe111cl1n11tl Crir11111tt!, r196:?] 3 S.C.R. 9:?1. 1.•xpl;1i1H:d. Cil'i/ A/>/i<"llate .fllri.wlicrio11: Civil Appeal No. 16-19.of 1967 .. B of 1%7. c D E F. G JI ' ' Appeal by 'pccial. leave. from the judgment nnd decree dated Scptcmhcr 22. 23. 1967 I.if the Bombay High Court in Special ( 'ivil Applicaiion No. 2293 of 1966. ' H. R. (•oklwl<". Janrndra Lal, nnd }3 .• R Agarwa/a, for the· :ippcll,rnt. S. T~'Nc•sui. A. G. Pctrikh. and P. C. 11/wrtari, for the respon- d~nt:-.. - The Jud~mcnt of the Cowt \vas delivered by Shel~!. J. Jn or about J 951. certain portions QJ plots Nos. 254 and 255. situate at Bandra in Greater Bon1oay, were Jet out to the appellant by their owner, Louis Fernandes. The appeJ. lant thereafter constructed on those ROrtions certain structures wherein he has since been residing and carrying on business. By an Indenture of Lease dated December 5. 1958 the said Louis Fernandes demised the whole of the said plots in favour of the respondents for a period of 99 years commencing from December I, 195.8 on a mqnthly rent of Rs. 40 l and on the terms and conditions contained in the said Ti.denture. Cl. 2
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