Bombay High Court
Arun Industries vs State Of Maharashtra And Ors. on 28 June, 1990
Equivalent citations: 1990(3)BOMCR472
JUDGMENT S.M. Daud, J.
1. This is plaintiff's appeal taking exception to the dismissal of a motion taken out by it to restrain respondents from entering on and taking possession of plot bearing No. 123-CD, Kandivli Industrial Estate, Bombay 400067.
2. The suit plot of land was given under the agreement at Ex. A to the plaintiff by the Government represented by respondent No. 3. The agreement is described as a thirty years lease of the plot of land. Paintiff was permitted to put up industrial sheds on the plot which sheds were not to be used for any purpose other than as industrial sheds. Clauses IX and X of Ex. A are important, and the first restrained the plaintiff for sub-dividing or disposing of without the permission of the lessor "any part of the said plot". The second clause afore-mentioned prohibited the plaintiff from assigning, under-letting " the said plot or any part thereof to anybody without the previous consent in writing of the Collector etc." Plaintiff erected some structures on the plot and installed machinery therein. The machinery together with the sheds numbering about three were worked for sometime by concerns doing business in the name and style of 'Bharat Engineering Cos' 'M/s. Ganesh Plastic' and 'M/s. Moon Light Electroplates'. Agreements governing this type of transaction between the plaintiff on the one hand and the concerns afore-mentioned on the other, were on the same lines as Ex. B and C. The respondent alleged that the said transactions violated certain terms of Ex. A. For that reason a notice of forfeiture was given to the plaintiff. Plaintiff appealed against the decision to the Divisional Commissioner and failing there, to the State Government. The appeals having failed, plaintiff instituted Suit No. 4663 of 1985 in the City Civil Court at Bombay. The suit was for a declaration that no condition of Ex. A had been violated, for which reason respondents were not entitled to take possession of the suit plot. A consequential injunction to restrain the taking over of the plot was sought. Alongside the institution of the suit, plaintiff moved a motion seeking an interim injunction to prevent the taking over of the plot until the disposal of the suit. The motion was opposed by the respondents. After hearing parties the learned Judge held that plaintiff had not made out a prima facie case and that it was not therefore entitled to the interim injunction. This order is assailed in appeal. Mr. Patel representing the appellant contends that all the reasons given by the Judge hearing the motion for refusing interim relief are fallacious. The submission advanced by the learned Counsel is sustained and the appeal is allowed for the reasons given below.
3. The first reason given by the learned Judge is that plaintiff had failled in a writ petition taken out by it to assail the forfeiture of the lease. Mr. Patel says that this view is untenable and relies upon The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and another, in support of this submission. The writ petition was disposed of by a single word order viz. "rejected". In the aforementioned authority the Supreme Court held as under:---
"However, from the order dismissing the special leave petition in limine it cannot be inferred that all the matters agitated in the said writ petition were either explicitly or implicitly decided. The technical rule res judicata, although a wholesome rule based upon public policy, cannot, be stretched too far to bar the trail of identical of issues in separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principles of res judicata to such an extent so as to found it on mere guess-work".
Though the observations are made in relation to a special leave petition under Article 136, the ratio would apply equally to a writ petition rejected in limine. Therefore, a one word order would not constitute a bar, certainly not, at the stage at which the case was as to the maintainability of the suit.
4. On merits Mr. Patel submits that Ex. A did not prohibit the grant of lease vis-a-vis the structures. This seems to be correct. Clauses IX and X of Ex. A refer to the demised property as Plot of land. Wherever the document intended to refer to the structures that would come up on the land, Ex. A took care to refer to the same as distinct and different from the open land. An instance of this is the recital to be found in clauses VII and VIII. No restraint is placed upon the lessee vis-a-vis the letting out of the structures that were to be erected on the plot. Clause VII placed a restraint upon the purpose of user when it says that neither the land nor the building shall be used for any purpose other than as an industrial shed. If any restriction in regard to the letting out of the structures had been intended that would have been so explicitly specified in Clauses IX and X. Reliance has been placed upon the definition of the word "land" occuring in section 2(16) of the Maharashtra Land Revenue Code, 1966 by the learned trial Judge to hold that the expression "land" included structures thereon. Learned Counsel submits and rightly so that this construction is a variation of the rule embodied in the maxim expressio unius exclusio alterius. Simply stated, the maxim implies that mention of one or more things of a particular class may be regarded as silently excluding all other members of the class. Where a statute uses two words or expressions, one of which generally includes the other, the more general term is taken in a sense excluding the less general one; otherwise there would have been little point in using the latter as well as the former (see Maxwell on the Interpretation of Statutes, Twelfth Edition page 293). In this commentary there is a reference to R.V. Midland Railway Co., (1855)4 E & B 958 the authority of which has been abbreviated at page 294 as follows :-
"The word "land" is generally understood as including buildings, but if, after imposing a rate on houses, buildings, works, tenements and hereditaments, an Act exempted 'land', this word would be restricted to land unburdened with houses, buildings or works which would otherwise have been unnecessarily enumerated."
In Ex. A a distinction is made between land and buildings. The restraint in regard to assigning and under-letting is restricted to land and therefore it cannot be deemed to embrace structures also. Mr. Patel points out, and rightly, that the clause applicable for the construction of the word "land" would not be section 2(16) of the afore-mentioned Code but section 2(4) thereof. In that sub-section "building" has been defined as "any structure, not being a farm building". The principal section viz. section 2 itself begins with words "In this Code, unless the context otherwise requires". The word land occuring in Ex. A cannot take colour from the meaning given to it in section 2(16). This is because the draftsman of Ex. A has taken care differentiate between land and buildings.
5. Lastly, learned Counsel submits that Exs. B and C could not be constructed as evidence of a contravention of the prohibition against sub-letting or assigning. The three concerns with which plaintiff had entered into agreements were not given any interest in the structures. All that was given to them was the right to work the machinery installed in structures. This did not create any interest in them in the structures or the land. Amongst the authorities relied in this connection by learned Counsel is the judgment is in the following words and the ratio thereof applies on all fours to the construction of Exs. B and C in the instant case. Para 12 is worded as follows :
"What then was the dominant intention of the parties when they entered into the present transaction ? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a mill of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of an accommodation as defined by section 3(a)(y)(3). The fixture described in Schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixture are the primary object which the lease was intended to cover and the building in which the fixtures are located come in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies."
6. Apart from what has been stated above, the learned Judge had only to address himself as to whether a serious question arose for determination. Having regard to the many complicated issued arising, it cannot be doubted that the suit gave rise to serious and substantial questions of fact as also law. The proper course to follow in such a case was to grant interim relief.
7. The result of the foregoing discussion is that the appeal has to be allowed. The dismissal of the motion is set aside and an interim injunction restraining defendants from taking possession of the suit building together with the structures standing thereon, is issued. This injunction shall be in force until disposal of the suit. Costs in appeal to be costs in the cause.