Mst. Subhadra v. Narsaji Chenaji Marwadi

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 356 of 58. Appeal by special leave from the judgment and Order dated January 21, 1955, of the Bombay High Court in Civil Revision Application No. 813 of 1953. S. T. Desai, S. N. Andley and Rameshwar Nath, I..__ for appellant. I. N. Shroff, for the respondent. as;c.:R. 99 1961. August 9. The judgment of the Court was delivered by SHAH, J.-Plot No. 68 Town Planning Scheme No. 1 Jamalpur Ahmedabad, part of survey No. 405 Monje Rajpur-Hirpur admeasuring approximately 38 Gunthas was owned by Bai Jekor and her two sisters. By a lease dated October 15, 1934, this plot of land was granted in lease by the owners in perpetuity to Gajjar Ramanlal Gordhandas and his brother at annual rental of Rs.558. The lessees- Gajjars-sublet by a lease dated February 7, 1946, the plot also in perpetuity to Narsaji Chenaji Marwadihereinafter referred to as the respondent-at an annual rental of Rs. 1,425.

The respondent by deed dated April 25, 1947, sublet the plot to Subhadrahereinafter referred to as the appellantit an annual rental of Rs. 2,225. In all these three deeds, it was recited that the lessees may construct buildings on the land and for obtaining sanction in that behalf, the lessors shall make applications to the Collector or any other authority for that purpose• The plot on the dates of the three leases was assessed for agricultural purposes. Under the Bombay Land Revenue Code V of 1879, land assessed for agricultural purposes may be used for non.agricultural purpose if permission in that behalf is granted by the Collector. The appellant applied for permission for conversion of user of the land to non-agricultural purposes, and the Collector of Ahmedabad by order dated November 11, 1949, · sanctioned conversion of the user.

Thereafter, the appellant by application dated October 27, 1950, applied to the Court of Small Causes, Ahmedabad for fixation of standard rent of the plot under s.11 of the Bombay Rents, Hotel and Lodging Houses Rates, Control Act 57 of 1947-hereinafter referred to as the Act. The respondent contended that the land when granted in lease being agricultural, the provisions of Bombay Act did not apply thereto and the application was not maintainable. The Msi. Bubhadra 1'lar"Baji CMnaji Marwat!i Sha~ J: 11111 }.ft1t. Ssbhadra ~\·araaji CJ~naji ltlarwadi too StJl>REME COURf REPORTS (19621 Court of Small Causes upheld the contention of the respondont and dismiss"<! the applic:ition. This order was confirmed in appeal to th<· District Court at Ahmedabad nncl in a revision application to the High Court of Judicature at Bombay. The appellant has, with special l••av<» appealed to this court against the order of the High Court.

It is common ground that till November II, 1949, the plot was MRP8Rcd for agricultural purposes 1m<lcr the Bombav Land Revenue Code. In the year l!l4i, tho p'iol was undoubtedly l.ving fallow, hut 1m that occount, tl1c t18cr of the land cannot he deemed to b1• altorcd. User of the ltind could only lw altered by the order of th<' Collector grante<I under s. 65 of the Rom hay IM'lncl Revenue Code. Section 11 of the Bombav Act 5i of 194i l'Jlahlcs a competcnt court upon aliplication ma.do to it for that purpose to fix standard rent of any prl'mises. But s. 11 is in Part II of tho Act and bys. () cl. ( l), it is provide< I that in 1trcaH Apccified in Schciule I, Part II 1tpplies to pr<>mises let f<1r rrsidence, education, business, trade or storage. There is no dispute that P1trt II applied to the· 1trca in which the plot is situate ; but before the appellant could maint1tin an application for fixation of standard rent under s.

11, sh~ had to C'stablish that the plot of land leased was "premises" within the meaning of s. 5 (8) of the Act and that it was let for rcsi<lonce, education, businl'SS, trade or storage. For the purposes of this app<>al, it is unnecessary to consider whether the plot was Jet for r(·Ridence, education, business, trade or storage. Tho expression "premises" is defined by s. 5 (8) and tile material part of the definition is : "In this Act, unless there is anything; repugnant to the subject or contextx x x x (8) "premises" means- (a) any land not being used for agricultural purposes, j 3 S.C.R. (b} any building or part of a building let separately (other than a farm building) including- (i} the garden, grounds, garages and out-houses if any, appurtenant to such building or part of a building, (ii) any furniture supplied by the landlord for use in such building or part of a building, (iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. x x x x Reading s.

5 sub-cl. (8) with s. 6(1), it is manifest that Part II of the Act can apply in areas specified in Sch. II to lands (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 s. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by t,he tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting t11e application of Part II of the Act. The application filed by the appellant under s. I I for fixation of standard rent was therefore not maintainable. The appeal fails and is dismissed with costs. Appeal dismis8ed . Mat; Sulih<zdra Nariaji, C/ienaji Marwadi Shah J.