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TMI Blog1971 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... regating to ₹ 4000/- towards the said sum of ₹ 5001/- payable by him. The agreement between the said Ghaswalla and the accused was reduced into writing. (Exh. F), and was dated 16th of September 1966, but was not registered as required by Section 18(3) of the Bombay Rent Act, 1947. Under the said agreement, it was by necessary implication, though not in express terms, provided that the said building was to be completed on or before 30th December 1967, but the said agreement did not contain any provision creating a charge on the said Building No. 3 and the interest of the accused in the land on which the said building was erected as required by sub-section (3) of S. 18 of the Bombay Rent Act, 1947. The said agreement also contained certain other conditions to which, however, it is not necessary to refer, but it may be stated that the said agreement clearly showed that the loan of ₹ 5001/- which Ghaswalla was to give to the accused was to be given for the purpose of financing the erection of building No. 3 which was to be constructed by the accused. The prosecution case is that the accused, however, failed to complete the said building by the stipulated date viz. 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the building when completed for the use of such person or any member of his family; (2) that the rate of interest on such loan shall not be less than four per cent per annum; (3) that such loan shall be repayable by the landlord within a period of ten years from the date of the execution of the agreement or within a period of six months from the date of the termination of the tenancy by the landlord, whichever period expires earlier; (4) that the amount of the loan shall be a charge on the entire building and the entire interest of the landlord in the land on which such building is erected; provided that if the loan has been advanced by more than one person, all such persons shall, notwithstanding anything contained in any law for the time being in force, be entitled to a charge on the entire building and the entire interest of the landlord in such land rateably according to the amount of the loan advanced by each of such persons; (5) that the landlord shall use the amount of the loan for the purpose of erecting the whole or part as the case may be of the residential building and for no other purpose; and (6) (a) that the erection of the building shall be com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o let, and also because of the definition of the word landlord in Section 5(3) thereof which is to the same effect; (3) Even if the view taken is that sub-section (3) applies to an agreement to grant a lease, the offence made punishable by sub-section (4) is only for contravention without reasonable excuse of any of the conditions specified in sub section (3), but no offence is created by sub-section (4), or by any other provision of the said Act, for not including the conditions of sub-section (3) in the agreement under which a construction loan is given to the landlord, or for not reducing that agreement into writing, or for not registering the same. 3.I shall now proceed to consider the first contention of Mr. Mody and, in that connection, I must immediately refer to the decision of the Supreme Court in Tolaram's case, [1955]1SCR158 referred to above. The facts of that case were that the appellants before the Supreme Court, who were landlords, were charged under Section 18(1) of the Bombay Rent Act, 1947, for receiving a sum of ₹ 2,400/- as premium or Pugree in respect of an agreement of a lease of Block No. 15 in a building under construction. The trial Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualifications to main enactment but as saving clauses, in which cases they would not be construed as controlled by the Section. After setting out the contentions of either side on this point, the Supreme Court, however, stated that, in the view which they took on another point, it was not necessary for them to pronounce upon the proper construction of Section 50 of the Bombay Rent Act in the said case (para 10). The second decision of the Supreme Court in regard to the construction of Provisos is to be found in the case of Commr. of Commercial Taxes Board of Revenue Madras v. R.S. Jhaver [1968]1SCR148 . The question which arose in that case was in regard to the proper construction of the proviso to sub-section (2) of S. 41 of the Madras General Sales Tax Act, 1959. Section 41 (2) dealt with inspection of the accounts, registers, records and other documents maintained by dealers, while the proviso thereto dealt with search of residential accommodation. The Supreme Court in its judgment dealt with an argument very similar to the argument which Mr. Mody has advanced before me on the point I am now considering viz. that a Proviso carves out something which is already contained in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bal. J. in the case of Sulochana Ganpat v. Madan Dattatraya 72 Bom LR 351. There is, therefore, no substance in the first contention advanced before me by Mr. Mody and the same must be rejected. 4. As far as the second contention of Mr. Mody is concerned, in my opinion, having regard to the fact that sub-section (3) of S. 18 in terms deals with an agreement to grant a lease, the word let in Section 6 of the Act cannot be so construed as to nullify sub-section (3) of S. 18 altogether. The only way of arriving at a harmonious construction of Section 6 and sub-section (3) of S. 18 which occurs in Part II with which Section 6 deals is to construe the words premises let in Section 6 as including premises agreed to be let for the purposes specified therein. In fact, the object of Section 6 appears to be to designate the purposes for which the premises must have been let or agreed to be let in order to make the provisions of Part II of the Act applicable. As far as the definition of the term 'landlord' in Section 5(3) of the Act is concerned, the said section starts with the words Unless there is anything repugnant to the subject or context and, in my opinion, there cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of Statutes, 12th Edition, page 239, that, in a penal Statute, the Court must always see that the person to be penalised comes fairly and squarely within the plain words of the enactment, and that it is not enough that what he has done comes substantially within the mischief aimed at by the statute. Two of the main dictionary meanings of the word 'incorporate', however are 'to include in the body of something else' or 'to include as a part or parts of itself' (Shorter Oxford English Dictionary. Third Edition). Even as a matter of plain language, therefore, the words 'include and incorporate' are interchangeable as far as their meaning goes, depending of course on the context. In my opinion the words 'shall include' in sub-sec.(3) are capable of being construed as meaning 'shall be incorporated' without adding any words, merely as a matter of their fair and ordinary meaning, and the passage from Maxwell relied upon by Mr. Mody is, therefore, of no avail to him. The first limb of the argument of Mr. Mody is, therefore, of no avail to him. The first limb of the argument of Mr. Mody on the point I am now considering must be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in which that rule has been applied (p. 139). The same rule has been cited in another way by Maxwell (p. 199) when it is stated that where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, the Court must do some violence to the words and so achieve that obvious intention and produce a rational construction. These, in my opinion, are merely different facets of the rule of construction based on futility mentioned earlier in the judgment. It was, however, sought to be contended by Mr. Mody that the argument of futility which is based upon the decision of the House of Lords in the case of Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 AC 1014 has been rejected by the Full Bench of this Court in Tolaram's case in regard to the construction of penal statutes AIR1953Bom347 . In the judgment of the Supreme Court on appeal from the Full Bench judgment in the said case, however, I do not find any express rejection of that rule of construction by the Supreme Court, or even a reference to Nokes' case though there can be no doubt that the Supreme Court has (at p. 1209) based its own judgment primarily on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (3) have not been made 'subject to contract to the contrary', which would indicate that the legislature intended them to be included in all construction loan agreements of the nature contemplated by that sub-section. I hold that the conditions of sub-section (3) of Section 18 of the Bombay Rent Act, 1947 are incorporated by operation of law in all construction loan agreements, whether they be oral or in writing. 9.It was, however, sought to be contended by Mr. Mody that the view which I am taking on this point is in conflict with the judgment of Bal J. in Sulochana Ganpat's case (1970)72BOMLR351 to which I have already referred in another context, in so far as that very argument was advanced before that learned Judge and rejected by him (at page 357). The observations of Bal. J. in regard to the point of incorporation by operation of law, which I am now considering are clearly obiter dicta for the simple reason that the view which he took was (at p. 357) that S. 49 of the Registration Act only provides for the consequences of non-registration of a document required to be registered either under Section 17 of the Registration Act or under any provision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.I now turn to the second question which arises for my consideration, viz. whether the word 'conditions' in sub-section (4) of Section 18 connotes only those conditions which are listed as (I) to (vi) in sub-section (3) or includes also the provision therein that the agreement should be in writing and registered. In my opinion, the provision that is to be found in sub-section (3) that the agreement should be in writing and registered is equally one of the conditions specified in sub-section (3) as there is no reason for excluding the same from the natural meaning of the term 'conditions'. The condition in regard to writing and registration is stated separately only because from its very nature and as a matter of plain grammatical construction it could not have been included in the conditions which are to be found listed as (I) to (vi) in that very sub-section. 12.That brings me to the third question that arises, viz. whether the conditions listed as (I) to (vi) in sub-section (3) apply (I) only if the agreement is in writing and registered; (ii) if the agreement is in writing but is not registered; (iii) even if the agreement is oral. From the view taken by me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led any evidence, nor has he, either in his statement under Section 342 of the Criminal Procedure Code or in the written statement which he has filed in the trial court, said anything which would show that he had any reasonable excuse for not registering that agreement as required by the provisions of sub-section (3) of Section 18 of the Bombay Rent Act. I, therefore, hold that the accused has committed an offence under sub-section (4) of the said Section 18 and has rightly been convicted of the same by the learned Magistrate. In that view of the matter, it is not really necessary for me to consider breach of any of the other conditions specified in sub section (3) of the said Section 18. Since, however, the matter has been argued at great length before me, I feel I must also deal with the alleged breach of the other two conditions mentioned above. 14.The complainant Ghaswalla had deposed in clear terms that the construction of the building in question is yet not complete which must mean that it had not been completed at the date when he gave evidence in the trial court, by which time the statutory period of two years from the date of execution of the agreement dated 16th Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode or in the written statement filed by him in the trial court, which would make out any reasonable excuse for not completing the building within the statutory period of two years from the date of the agreement. In the course of his arguments, Mr. Mody has relied on a statement that is to be found in the evidence of the complainant Ghaswalla himself that one Edulji, who was the President of the Tenants' Association of the said building, and was authorized to act on behalf of the tenants in the matter of the formation of a society, has signed the agreements dated 31-5-1969 and 23-5-1969 under which the rights and liabilities of the accused were taken over by the society. I am afraid that fact, however, cannot be of any assistance to the accused in making out a reasonable excuse for non-completion of the building in question, for the simple reason that by the time the said agreements were executed, the statutory period of two years from the date of the agreement (Ex. F) had already expired on the 16th of September 1968 and the offence under sub-section (4) was already complete as far as the accused was concerned, and no subsequent act of the accused could possibly wipe out that ..... 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