KANJI MANJI versus THE TRUSTEES OF THE PORT OF BOMBAY

3 $.C.R.

the order of 'tSsessment under s. 34 he had been saddled with liability to the extent of his 3/16th share •in the firm, though this has been partially off-set by the credit given to him, obviously wrongly, of relief under s. 18(5) of the tax deemed to have been paid by the company on that incomes.

We therefore consider that the appeals must fail. They are accordingly dismissed but in the circumstances of this case there will be no order as to costs.

Appeals dismissed.

KANJI MANJI

THE TRUSTEES OF THE PORT OF BOMBAY (S. K. DAS, M. HIDAYATULLAH and J. c. SHAH, JJ.)

Ejectment-Suit by Government or local Authority against assignees of leased land and building-Applicability of Rent Act-Jurisdiction of City Civil Court-Joint tenancy-Notice on one tenant, if sufficient-Suit if bad for non-joinder of legal representative of the deceased joint tenant-Assignee of tenancy if bound by the terms of the original lease-Where eviction of sub-tenant not possib/,e under statute, whether ground to defeat the rights of the Local Authorities-Bombay Rents. Hotel and Lodging Houses Rates (Control) Act, 1947 (Bom. 57 of 1947), 88. 4, 5( 8), 15.

In 1924, the Trustees of Port of Bombay granted lease of land for ten years to partnership firm, with the covenant that the lessee would, at their own expense construct upon the said land, certain buildings to the specifications of the trustees. It was provided inter alia that the lessee would be at liberty to remove the buildings, erected by them, within three months after the expiration of the term. It is not clear what happened actually after the expiration of the term of ten years. In 1942, the Trustees granted to M/s. and 0 their respective heirs, executors, administrators and assigns, monthly tenancy of the land together with the buildings standing thereon. It was agreed with them that on the

The Income T Officer v.

Aruind N. Mofatlal Ayyangar J.

F~bruary 27.

1962 Kanji Monj& v. TA, Tf'usluJ oj th1 Pt11t of Bornbo;1

462 SDPRE}fE COURT REPORTS [1962] SUPP.

determination of the tenancy, they , .. ·ould have to remove such UuiJdings as "'ere standing upon the demised land. In 1947 Mis. and 0 assigned rheir right> in the lease to one R and the appellant K , ... ·hich \.\'as accepted hy tht: trustees. After due notice in J 9'i6, the Trustees filed suit for eject-rnent against Rand K, in tl1c Bombay (;ity Civil Court. R had died before the filing of the suit and the plaint was amended by striking out the name of R. The appellant as defendant took number of pleas; (a) notice was invalid as it had been served only upon one of the lessees, (b) suit was bad for non-joinder of the heirs and the legal representatives of R, (c) Jurisdiction of City Civil Court was challenged as the suit was governed by Rent Act, (d) and lastly, that the contrar.t to deliver vacant possession \vas in1possible of pcrformanrc and the said irnpos:siliility rendered the clairn of the plaintiffs incompetent.

field, that once it i!' held that the tenancy \vasjoint notice to one of thr joint tenants \vas sufficient, and the suit for the .same reason was good.

Held, further, that the suit as laid for vacant possession of the site and in tlie City Civil Court '"'as co1npetant.

Held, that in view of the definition "premises" in s.5(8) · and the events leading to the arncndment of s. 4, the amend-ment was enacted to cut down by definition the operation the word~ "any prendses belonging to the Government or local authority" by excluding buildings which \\·ere occupied ny sub-tenants even though tile building belonged to the Government or continued to belong to it and any action of the Government or local authority in respect of the land falls to be governed ·by >Ub·s. (I) and not sub-s (4) (a) of the Rent-control Act.Held, therefore, if tl1c Government or local authority v.:anL<; to evict person from the land, the provisions of the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947, do not come in the way. For the same reason, the suit for ejectment docs not have to be filed in the court of s111all causes, as required l>y !lent Control 1\ct but in the City Civil Co"rt.

If the origipa) lessees took on lease not· only the land but also the building, it is not open to their assignees to clain1 that the ownership of the Government extended only to the land and not to the buildings.

If the appellant cannot evict his teilant so as to be able to remove the building, in exercise of the right conferred on him, that is _an unfortunate circumstance, 'vhich does not serve to entitle him to defeat the rights of Pact Authorities.

Quero :-The Port Trust Authorities, whether c.an evict the sub-tenants ? ·

Bhatia Co-operative Housing Society Ltd. v. D. C. Patel, (1953) S.C.R. 185 and Ram Bhagwandas v. Bombay Corpora-tion, A.I.R. 1956 Born. 364, referred to. . CIVIL APPELLArE JURISDICTION: Civil Appeal No. 302 of 1961.

Appeal by special leave from the judgment

and order dated September 24, 1959, Bombay High Court in F.A. No. 731 of 1959.

1959, of the

B. Se:n and/. N. Shroff, for the appellant.

M. C. Seialvad, Attorney General of India, B.

Parthasarthi, J.B. Dadachanji, 0. 0. Mathur and Ravinder Narain, for the respondents.

1962. February, 27. The Judgment of the Court was delivered by

HrnAYATULLAH, J.-This appeal arises out of

suit tried in the Bombay CityCivilCourt at Bombay, filed by the respondents, the Trustees of the Port of Bombay, for the ejectment of the appellant, Kanji Manji, and one Rupji Jeraji who had died even before the suit was filed, from plot situated 'at Haji Bunder Mazgaon, Sewri Reclamation Estate, Born bay. and for poss~asion of the land. There was claim for Rs. 10,871-14-0 being the arrears of water charges and property taxes, with which we are not concerned. The suit was decreed by the Bombay City Civil Court, and the appellant was ordered to vacate the suit premises and to deliver vacant possession thereof. An appeal wa.s filed against the decree in the High Court of Judicature at Bombay, but it was dismissed summarily on September 24, 1959. The High Court also refused an application for certificate, but the appellant applied for special leave, and having obtained it, filed the present appeal.

In 1924, the Trustees of the Port of Bombay

granted lease of the said land to five persons, who

Kanji Manji v. The Trustees o/Thl Port of Bombay

Hidayatul/oh J.

Knnji~Manji •• 'Tlte . ·rn1stee r of 1 ht Porl of Bornhay idayalul/aA J,

464 StJl>REME COURT REPORTS [1962] SVPP.

were trading in pitrtncrship under the name and style of :\fancherji Vadilal and Company. This lease was for term of l 0 ·'ears commencing from December I!, HJ23. · For the first six months, the conventional rent of pepper corn, if demanded, was payable, and thereafter for the remainder of the term, monthly rent of Rs. 633-5-4 was payable on the first day of every month. The lessees were also to p&y all rates, taxes, assessments, etc. Ono of the covenants of the leaso was that the leBBees would, at their own expense and during the first six months period, construct upon the said piece of land buildings for us as bullock stabhis and offices accor-ding to the specification given to them by tho s&id Trustees and to be approved by them. It was pro-vided, inkr alia, that upon the expiration of the term, if the lessees had observed and performed all the co.vonants, they"would ht' at liberty, at their own expense, to remove the buildings erected by them upon the demises on condition that the remo-val would be completed within three months after the expiration of the term. During this peri.od of throe months, the lessees were to pay the monthly rent and also to pay all rates and taxes etc. and if they failed to remove the buildings within the period of three Calendar moriths from the expiration of the t!lrm and within like peirod to fill up all exca-vations and to level up and restore the land, the right to remove the buildings would stand deter-mined, and the buildings would bolong to the Trus-tees, who would be entitled to remove them and to clear, Jovel and restore the land and recover the costs from the lessees.

It is not clear from the record as to what happened actually after the expiry of the term. But on August l l, 1942, the Trustees of tho Port of Bombay granted to Moroshwar Narayan Dhotre and Dinshaw l~ustomji Ogre, carrying on busineBB under the name and style of Messrs. Dinshaw and Company and their respective heirs, executors

administrators and assigns, monthly tenancy of the land together with the buildingo standing there-on and all the rights, easem0nts and ppurten-ances belonging to the premises on payment of monthly rent of Rs. 300/ ., clear of all deductions on the first. day of each Calender month and payment of all rates, taxes etc. The lessees covenanted not to add to, or alter the said buildings and conveniences etc., without previous consent, in writting, of the Trustees and to maintain the proper-ty in good repair. at their own cost. They further agreed ;

"to peacefully leave and yield up the demised premises together with all buildings thereon as prepared and kept at the expiration or sooner determination of the tenancy here-. by· created or in the event of the ;renants becoming en tit led to remove the buildings .. standing on the demised land at the expira, tion or sooner determination of the . tenii.ncy hereby created pursuant to the proviso in that behalf hereafter con-. tained to peaceably leave and yield up the demised laud cleared and levelled to the. satisfaction in all respects of the Trustees." The provisos, inter <ilia, include the following covenants binding the lessees :

"(2) Either party to \chese presents may

terminate the tenancy hereby created by giv-ing to the other of them one calendar month's notice in writing to expire on the 1st day of any calendar month.

(4) The Tenants may during the period of,

notice for determination of tenancy hereby created in accordance with proviso No. 2 here-in before conta.ined remove such buildings as · have been standing upon the demised land provided that the Tenants shall have paid all rent hereby reserved up to the determination

Kanji Manji ; v4 ·, The Truiiees·oJ The f:or:t of BomPdy HidayatullahJ.

1161 Ir, nji M OJ!ji •• n, r,..,,,,. ofT/i, p.,, of Bamb9 Hicia,otuJ/aA I.

466 .SUPREME cOURT REPORTR (1962] SUPP.

of this tenancy and shall have performed and observed all the covenantH on the part o( the Tenants and the conditions herein contain-ed or referred to."

On February 28, 1947, Morcshwar Narayan

Dhotre and Dinshaw Rustomji Ogra assigned their rights in the lease to Ruµji Jeraj and Kanji Manji who, according to the deed of assignment (Ex.D) paid Rs. 22,250/· to the assignor~. and this assign-ment appears to have been accepted by the lessors. On January 25, I 956, the Trustees of the port of Bombay sent notice to Rupji Jcraj and Kanji Manji requiring them to vacate the prumiscs and deliver vacant and peaceful JlOfHession of tho land on :February 29, 1956. This notice was not oomplied with, and tho suit was filed for their eject· ment, as stated already. In the plaint, tho first relief claimed was that "tho defondant be ordered and decreed to forthwith deliver vacant and pea.cc-ful possession of tho demised premises situate at Mazagaon Sewri Reclamation Estate and more particularly described in Ex. hereto." Exhibit mentioned the following:

"All that piece or parcel of land situate at Haji Bunder, Muzagaon Sewri Hoclama.tion Estate, Bombay, admcasuring 5066 6/9 square yards or thereabouts bearing Cadastra.l Sur-vey No. 272/145 of PareJ.Sewreo Division.'

The suit, as stat<,d was filed against Loth Rup-

ji Jeraj and Kanji Manji, but lator, the plaint was a.mended by striking out the name of Rupji Jeraj. who had died much earlier.

The appellant, as defendant, raised number

of pleas. His main contention was that the notice dated January 25, 195'3 was invalid, inasmuch as it had heen served only upon one of the lessees (Kanji M~nji) and not upon the heirs and legal rep-resentatives of Rupji J eraj. He also contended

3 S.C.R. SUPREME cOURT REPORTS

that the suit was bad for non-joinder ·of the heirs and legal representatives of Rupji Jeraj, who were necessary parties. He raised plea of jurisdiction, alleging that the suit had to be filed in the Court of Small.Causes, Bombay, inasmuch as it was gover-ned by the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947. He further claimed the protection of s. 4, sub-s. 4 (a) of this Act which, he said, applied to him and not sub-s. (1) of the same section. He contended tha.t, in view of the prohibition contained in the Act, he could not evict his sub.tenants and that the con-tract that he must deliver vacant possession was impossible of performance, and the said impossibi-lity rendered the claim of the plaintiffs incompe-tent.

All. these pleas were found against the appell-

ant. It was held that the tenancy was joint tenancy that notice io one of the joint tenants was sufficient, and that the suit also was not bad for non-joinder of the legal representatives of Rupji Jeraj. The t1·ial Judge held that the present agreement was enforceable, inasmuch as this case was governed by sub·s. ( l) and not sub·s. 4 (a) of s. 4 of the Act. For the same . reason, the trial Judge also held that the suit was properly laid in the Bombay City Civil Court at Bombay. The same contentions were raised before us, and we shall deal with them in the same order.The argument about notice need not detain us long. By the deed of assignment dated Febru-ary 28, 1947, the tenants took the pretniees as joint tenants. ·The exact words of the assignment were that " ...... the Assignors do and each of them doth hereby assign and assure with the Assignees as Joint Tenants ...... ". The deed of assignment was approved and accepted by the Tmstees of the l' ort of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge

I96S Kanji Manji V, The Tntslets nj Thi Port of Bombay Bidoyotulhh J.

1962 K01iji M anji y. The Truslus of I he Porl oJ Bombay -llUl•.JGIUll•h J.

468 SUPREME COURT REPoRTS [1962) SUPP.

therefore, rightly held t.h~m to be so. Once it is held that the tenancy was joint, notice to one of the joint tenants was sufficient, and the suit for the same rcaso11 was also good. Mr. R. Sen, in arguing the case of the appellant, did not seek· to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.

The real controversy in t.his case centres round the applicability of the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 194 i (short-ly called the Hent Control Act in the judgment) to tho present suit, and from that also arises tho quostiou of the jurisdiction of the Bombay City Civil Court. The latter argument about the juris. diction of the Court can only arise, if the Rent Con-trol Act applies to the present facts. We shall, therefore, consider these two points together.

It must not be overlooked that the suit was for eviction from the land only. Vnder the Rent Control Act, the word 'prcmisos" is defined by s.5(8) inter alia, as follows:

''Premises" means-

(a) any land not being used for agricultural purposes.

The Act, prior to its amendment in l 953

by the Bombay Act IV of 1953, provided by s.4(1) as follows:

"This Act shall not apply to any pre-mises belonging to the Government or local authority or apply a;; against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisit-ioned by the Government; but it shall apply in respect of premiaes let to the Govern-ment or local authority ...•.. "

This sub-section

was considered by the Born bay

3's.c.R.

SUPRE~fE COURT REPORTS

JI ' ' 'I ' H;igh Gourt in case, which was brought up in appeal to this Qourt by special leave. 'rhe judgment of, this Court 1 is reported in Bhatia Go-operative Housing Society, Ltd. v. D. G. Patel('). In that case, building sites were auctioned in 1908 by the City Improvement Trust, Bombay. One of the· condi-tions of the sate was that tbe bidder sh"Ju!J const-ruct building, on the site, of certain- .\faluo and according to plan approved by the City Imp~pve­ment Trust. One Sit·aram Laxmf\n was the highest bidder' and he constructed building, as ag-reed. Hp w:;is then gra,.nted lease of the land together w1~li phe building for 999 years. Subsequently in lp~5, the Bomoay Municipality succeedtd the City Improvement Trust, and the Bha.tia Co-opfra-tive Housing Society Ltd. acquired the less'ee's interest, suit was filed by the Co-operative So-ciety against· its own tenants in the Bombay City Civil'Court. Tlie plea was that the suit ought to .have been filed in the Court of Small Cm1ses, as required by the Rent Control Act. Tho plaintiff reFeC! upon sub-s. (l) of s. 4 to show that tho Act !iid not apply 'to suoh suit. This con tcntion of the plaintiff was accepted by the Trial· Jnclge, who decreed the claim. The Bombay High, Conrt, however,. on appeal, held that sob-s.(l) of s. 4 did not apply, and that as between the Co-:iper11tive Society and its sub-tenants, the suit was governed 'by the· Rent Control Act an\} ought to go before the 'court of Small Causes. The High Court, therefore ordered that tbe plaint be returned for pres~ntation to the proper Court. , .This •Court, on appeal by special leave, reversed the decision of the High Court, n,nd restored that of the Trial J uclge. This Court poihted otit that sub's. ( 1) of's. 4 had three parts, viz.

"( l) this Act i;hall not. apply to _pre-mi~e~ belonging to-the Government or local . ·autlroi'ity;

\I) [19.53j,8. C. R .• 1q~.

19fil

Kanji Manji t.l lty,t\ • T"1'#TfriStelB"d1 Tit 1Po1t--of ombc.y iJl'l.fa!ulfob .1.

1962 Kanji lltm;i v. 'Fht T1usltts of Tiu I'o1t of Bom•ts) lliria~Yt1ful/ah J,

4iO SUPREME C0URT REPORTS (1962] SUPP.

( 2) this Act shall not apply as against th<J Governme11t to any tenancy or other like relationship created hy grant from the Govern-ment in reHpcct of premiseo taken on lease or rcquiaitioned by the Government; and (3) thi8 Act shall apply in respect of pre· mises let out to the Government or locrd authority."

This court further held that• the first part of the sub-section mentioned as part No.( I) hove had no reforence to anv l-l·nanc\' or other like relation-ship as in the l~tter pa;t, and was general in character. In framing it in that way, the intention was obviously different, and it was to exempt pre-mises of particular type from the operation of the Act altogether, and the exemption attached to the premises. Reason;; were given by this Court why it thought th1tt this exemption was general and the immunity ab~olute. Into thesn reason8 we arc not now required to go. As between the Bombay llfunicipnlity and the lessee, it. was held that tho land 1md the buil<lin~? bPlongcd to the former as owners an~l nol to the lessee. This Court, therefore, observed at p. l ll6:

"The trut-h is that the lessor after tho

building was el't'Clcd b,-,cn,me the owner of it and all the time thereafter the demised pre-mises which include the building have belonged to him subject to the right. of enjoy-ment of tho lessee in terms of tho lease."

The Act \\'RS thus held not to apply to such suits, and the ord"r of the High Court was reversed.

At first, an Orrlinance and later, an Act were passed to nullify the effect of this ruling by the addition of sub-s.4(a). Th11t sub-section now reads as follows :

"(4)(a). The

oxpresaion

"premises

b,Jonging to the Government or local au-thority" in sub-section ( 1) ~hall, notwith-standing anything contained in the said sub-section or in any judgment, decree or order of Court, not include building erected on any land held by any person from the Government or local authority under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be; and

( b) notwithstanding anything contained in section 15, such person shall be entitled to create tenancy in respect of such building or part thereof."

The amendment achieved two different things. It enabled t,ha lessee of the particular kind of building described in cl. (a) to create sub-tenancies in spite of the ban against sub-tenancies contained in s.15. It also exuluded from the operation of sub-s.( l) the buildingR specified in cl. (a) of the sub-section. The amendment said nothing about the relation-ship of the Government or the local authority, on the one hand, and the lessee, on the other, in respect of the land. The word "premises" in sub-s.( I) could mean the land or the buildings or both. Sub-section (4)(a) dealt only with the buildings, and dirl not deal with the land, because it used the word "buildings" and not the more general word "premises". The import of sub-s.(4)(a) of s.4 was thus limited to buildings, and did not extent to land. The sub-section, however, was drafted somowhat inartistically, and the obscurity of the ]ang.rnge presents some difficulty. The Trial Judge fol1011·ed decision of the Bombay High Court rep 1rted in Ram Bhagwandas v. Bombay Oorpara-tion( I). fn that case, one Khudabaksh Irani had (l) AJ.R; 1956. Bom. 364;

11162 Kllffjt M 1nji •• T ru.s lees of Tb, lees of Tb,

TIN T ru.s lees of Tb, Purl of Bamhay Hid•yaMlah J.

K.J1ji ,,f 411ji • v._ Tiu Tru,.ieei of Th~ Putt uf BitJ//bay !l iJ.1.Yat:dia11 J.

taken lease of certain plot,s some 30 yoars back, and con.structed some structures upon the open plot, and renter! them out as tenem,Jnts. In 1947, Iraini said them t'l one l'ya.balli. In l9al, the llfonicip11l Corporation filed~ suit to eject Tyaballi . from the plots, and by 1•onsont decree, Tyaballi agrred to deliver up vacant awl peaceful posaes-sion of the plots clear of 1dl structurns. Tyaballi failed to romovp, the structures, 1tnd the ~unicipal Corporntion sought to execute t.he decree. The tenants thereupon filed suit under 0. 21, r.103 of the Civil Procedure Code against Municipal Cor-poration, but the suit was dismissed. In the 1tppoal which was filed iu the High Court, it was con'Jeded that the :\funicipal Corporation was the own~rs of the plots in question, but protection was ela.imed on the basis of sub-s.(4)(a) of s.4 of the Rent Control Act. Chagla, C. J. in dealing with th<.< history of the <tmending A[1];t., pDinted out that tho legisl1iture was seeking to protect by that sub-section tenants ·•·ho oecupie<l buildings put upon land belonging to local authority, if the buildings oceupied hy them were construcl{•d under an agree-mout under whirh the les;"" was under an obligation to construct buildiugs. He pointed out that the protect.ion of sub-s.(4)(a) wa8 to buildings and not to land, and thllt the phrase "under an agreement, lease or other grant" ID'Jrlified not only "held by any person from Go\'ornm0nt or local authority" but also "erected 011 any land". He, therefore, held that the wordH "erected on any land held by any porson from local authority" wero descriptive of th" building and did 1101 emphasirle the point of time when the building was erected. By that phrase, what was emphasised was "th1tt tho na.turo of the building must be such as to sati8fy the test that it was erected 1m ln.nd held by person from local authority and tho kst must be 1tppliod at the time when the protection is sought.''

In this case, it is contended, as it was conten-

ded in the Bombay High Court, that so long as building was erected under an agreement with Government or local authority, the benefit of sub-s.(4)(a) of s. 4 would be available, no matter how many hands th~ property might have chitnged. This argument was considered by the learned Chief Justice, and was rejected.

In 0ur opinion, th0ugh the section is far from clear,. the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this sub-section came to be enacted. Those circumstances were: In case in which the holder of the land from local authf,rity was seeking to evict his sub-tenantR, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that suh-s.(l) applied and the suit was not governed by the Rent Control Act. The amend-ment was enacted to cut down by a. definition th~ operation of the words "any premises belonging t'> the Government or local authority", by e:x:cluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Govern-ment or continued to belong to· it. Clause (b) of sub-s.(4) c:x:cluded also s. 15, which prohibited sub-letting by tenant. That, however, was limited to the cas9 of buildings only, and did not apply to the case of land. In this situation, any action by tho Government or tho local authority in respect of land falls to be governed by sub-s.(1) and notsub-s.(4)(a), and sub-s.( l) prrts the case in relation to land entirely out of the Rent Control Act. Tim net result, there. fore, is that if Government or local anthoritv wants to evict person from the land, the provision's of the Rent Contrul Act do not come in the way. For the same reason, the suit for ejectment docs uot have to be filed in the Court, of Small C1msc•s, as required by the Rent Control Act but in the City Qivil Court, as has been done in this oase.

. Kanji MtJnji v. Th. Truslu• ofTJ,. Porl of Bo;nbnJ Hidoyalu/lah ' .

Konji Ma1iji v. Tht Tru.stus of The ~ PMt of Bo1nba_;· .. ' l/idayalullah .1.

474 SUPREME OOURT REPORTS (1962] SUPP.

There is one more reason in this case for reaching the same conclusion, because at. the time of the lease in l!M'.!, the lessee8, from whom the appe]. ]ant claims a.%ignment, wen• given h·ase not only of the land but of the buiklings. The wholo tenor of thu agrecml'nt shows that tho title of the lesse<>s wa~ precarious. Tt was monthly tDn:incy liable to be terminated with notice umh•r the ·rransfer of Property Act, and tiwrc wa.s only grace that the lessees, when evi«tecl, might rcmr.,·n buildings within one month of their eviction. This precarious interest was obtained by the assignee by an aRsign· mPnt, :tnd the o;amc thing appli('S to them. If the original lessees took on k11s' not onl.v the land but also the lmilding~. it is not. open to th<!ir nssignees to claim that the ownership of the Oovcrnmf'l1t. extend. ed only to the 1.111rl ancl not to the buildings. By the admissions in the tle"d of lease am! thP 1'arious elauS<'S, it is quite cloitr that t hcsc buildingR cannot now he described a~ buildings constructed uncl('r an agreement with thc Oov<'rrurn,11t.. hut rnther as buildings belonging to GovPrnm,.nt which wero leased out with the land but in resp•~ct of which by concession, the l"sHoes were ••ntitl.,rl to remnve the lmildingA within 0110 month after cvietion. Tn our opinion, the snit a,; laid for vaeant po:isessinn of the site :ind in the Cit.v Ci1·il Cuurt wnH romp..tent.It was contender! tlmt the ~ontrart wns incap· able of being pmformt·cl, becau8c at l1·ast between the pres•,nt appellant and hi• suh tenants tlw provi. sions of the' !tent Control Act would apply, awl he would not be able to <'Viet tlwm in hi8 turn. It was, therefore, argll"d that. this impossibility on the part oft.he appellant to fulfil his nbligationa to deliver vacant posH.,HAion rendcr~d that portion of the lease deed um•nforceah1" nnd void. lt is to be noticed that the appellant docs not claim th1tt by reason of the imp088ihility the whole of the lease

3 3.0 .R.

deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justi-fied without any more. He only seeks to show that that portion of the deed dealing with delivery of vacant possession has become impossible of perfor-mance. Such situation had also arisen in the case of the Bombay High Court in R(/,m Bhagwandas v. Bombay Oorporation (1), and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appel-lant is matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the rigM conferred on him, that is an unfortunate circum>tance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant posses-sion of the site, and under the agreement, if the appellant does not remove the b11ildings within one month, then they wmild be entitled to t.ake posses-sion of tl1e land with the buildings, whatever might be the rights of the sub-tenants, and as to which, [1,S we have pointed out already, we say nothing.

In our opinion, the appeal must fail, and is rlismissed; but in the circumstances of the case, we do not make any order about costs.

Appeal dismissed.

J96B Kor.di Mpnji •• Tiu Trust"' of The Port of Bombay Hiday1Jtufla~ J,