10. 'with all respect to the learned judge, We are unable to share his view that use of the premises for conducting a wine trade, In the circumstances disclosed, Amounts to an act destructive of no permanently injurious to, The property leased. The use of the premises as a gambling house or at a brothel, As in the english cases referred to, Appear to us to stand on a fundamentally different basis, As the very nature of the use its if involves a slur or stigma on the premises and is sufficient to destroy its value or permanently injure the same. But we find it difficult to hold that the use of premises as a wine store has the same result or effect because the landlord (landlady) is a muslim whose religion does not view drinking with favour. She resides far away from the premises. Nor, Are we satisfied that the national policy to bring in total prohibition and the directive principle of state policy embodied in art. 47, Or the signature campaign for prohibition, Of which judicial notice was taken by the learned judge, Would make any difference to this position. We may refer to the latest edition of mulla's transfer of property act, Page 728 where the following passage is to be found:
"but if premises are let for business purposes, They may be used, In the absence of an express covenant, For any lawful business which is not a nuisance"
.
the case noticed as authority for the proposition is the decision in the matter of standard general assurance co. Ltd (air. 1965 calc. 16). There, Objections were raised by the landlord, To the lessee, A company, Altering the objects clause of the company to permit a change horn the business of insurance to manufacture and dealing in chemicals, Drugs etc one of the grounds made on behalf of the tenant in answer to the opposition was that the landlord cannot dictate the business that the tenant should carry on and had ho right to object to a change of business of the tenant, Unless there are restrictive covenants or statutory prohibitions, And, That in the absence of these, The tenant had the right to use the premises for any purpose so long as they were not illegal or immoral and did not create a nuisance. The submission was sought to be fortified by passages from hill and redman's law of landlord and tenant. The learned judge was prepared to accept this submission as sound, (vide para 27). In u po. Aaroo v. Burma oil co. (air 1929 p. C 108), The premise's were leased for winning oil. It was held by the judicial committee that the purpose was sufficient to cover and to 'protect, The generation of gas which was necessarily involved in the process of winning oil. The relevant passage is as follows:
"a further argument was based upon the provisions of s. 108, Sub - s, (o), T. P. Act, 1882, Which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. In their lordships' judgment it is not necessary exhaustively to discuss the limits of that provision, But there seems to be nothing inconsistent with its terms is the use of gas which is necessarily set free by reason of the sinking of the oil well for the respondents' own purposes without doing any damage or any injury to the property leased."
11. The learned advocate general cited the decision in nashirwar etc. V. State of madhya pradesh : air. 1975 sc. 360) and har shankar and others etc. V. The deputy excise and taxation commissioner (air. 1975 sc. 121) to emphasise that prohibition is a national policy, And that there is no fundamental right to carry on trade of do business in liquor. Counsel for the appellant, And also the learned advocate general, Made copious quotations from the decision of the supreme court in gherulal parakh v. Mahadeodas maiya and others (air. 1959 sc, 781) each to highlight his own point of view. The decision was concerned with expounding the concept of 'public policy' in relation to s 23 of the indian contract act wagering contracts were attacked in that case on various ground viz., As opposed to public policy, As illegal, Immoral and so on the grounds were all repelled. The danger of inventing new heads of public policy was pointed out. In regard to immorality it was emphasised that immorality as known in this country is confined to sexual immorality and not to any type of merely unethical conduct.
12. The learned advocate general referred to the later ruling of the supreme court in muralidhar agarwal & another v. State of uttar pradesh & others (air 1974 sc 1924), Which, It was said, Bad somewhat whittled down the earlier pronouncement. Mathew j. Who spoke for the division bench of the supreme court, Observed:
"28. The expression'public policy' has an entirely different meaning from'policy of the law and one much more extensive. Nevertheless, The term'public policy' is used by the house of lords itself apparently as synonymous with the policy of the law or the policy of a statute (see hollinshead v hazleton 1916 ac. 428) yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in egerton v. Brownlow. (1853) 4 hlc. I at p 105. It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except in some exceptional instances of confusion which have had no substantial effect on the general course of authority see w. S. M, Knight, "public policy in english law". 38. Law quarterly rev. 207, At pp. 217 - 218.
29. The courts have often repeated mr. Justice borough's metaphor about public policy being an unruly horse. Some judges appear to have thought it more like a tiger and have refused to mount if at all, Perhaps because they feared the fate of the young lady of riga. Others have regarded it like balsam's ass which would carry its rider nowhere. But none, At any rate at the present day, Has looked upon it as a pegasus that might soar beyond the momentary needs of the community. There is nothing remarkable in this because the topic itself is so elusive. See percy h. Winfield, "public policy in english common law", 42, Harward law rev. 76.
30. "public policy" has been defined by winfield as "a principle of judicial legislation or interpretation founded on the current needs of the community " (see percy h. Winfield, 'public policy in english common law" 42 harward law rev. 76) now, This would show that the interests of the whole public must be taken i to account; but it leads in practice to the paradox that in many cases what seems to be in contemplation is the interest of one section only of the public, And a small section at that. The explanation of the paradox is that f he courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it, Such as tenants, For instance, As a class as in this case. If the decision is in their favour it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a more tacit consideration. The courts may have to strike a balance in express terms between community interests and sectional interests so, Here we ate concerned with the general freedom of contract which everyone possesses as against the principle that this freedom shall not be used to subject a class, To the harassment of suits, Without valid or reasonable grounds. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, See gherulal parakh v. Mahadeodas maiya,159 supp. (2) scr 406 at p 440 - (air 1959 sc 781) there is also no lack of judicial authority for the view that the categories of heads of public policy are not closed and that there remains a broad field within which courts can apply a variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community". See dennis lloyd "public policy", (1953), Pp. 112 - 113.
31. Public policy does not remain static in any given community; it may vary from generation to generation and even in the same generation. Public policy would be almost unless if it were to remain in fixed moulds for all time. "
after some discussion, The learned judge found at the end of para. 32 that the function of finding out public policy at any given point of time and in regard to any specific provision must be discharged by the judges. It is unnecessary for purpose of this case to get en - mashed in the intricacies of this aspect of the law there was no contention that the use in question contravened public policy. We think it unnecessary again, To deal with the earlier decision of the supreme court in krishnakumar narula & another' v. State of jammu and kashmir & others (air 1967 sc 1368) holding, That there is a fundamental right to carry on a business or trade in liquor and examine how far that view can be sustained in the light of the later rulings in nasnirwar etc. V. State of madhya pradesh & others (air 1975 sc 360) and har shmkar & others etc v. The deputy excise and taxation commissioner & others etc. (air 1975 sc 1121). Assuming, Or stating the proposition in the most favourable way to the advocate general. It can only amount to this that there cannot be a fundamental right for consuming liquor or to carry on trade in liquor but the question that falls for consideration in this appeal runs on a lower plane viz. Whether the use of the leased premises to carry on a wine trade, Can be said to violates. 108 (0) of the transfer of property act, Particularly when the landlord happens to be a muslim lady. There was no oral evidence on either side. It is not contended that the landlady was living either in, Or anywhere near, The demised premises. Secularism is the ideal postulated for attainment by our country, And tolerance is the keynote of that ideal. In the circumstances disclosed, We are unable to hold that the use of the premises as a wine store amounts to an act destructive of, Or permanently injurious to, The leased property. We should not, Of course, Be underset of as ruling out that as injury to the demised premises' of the type contemplated by s 108 (0) of the transfer of property act cannot result by any sort of disreputable use of the premises, Such as what was considered and discussed in english cases and text books noticed earlier. That is unnecessary for the purposes of this case. On the facts of this case it cannot be said that there was anything like a use of the premises for a purpose permanently destructive of it or injurious thereto.
13. The learned advocate general then tried to put his case within the earlier part of clause (o) of s 108 on the ground that the lessee had used or permitted another to use the premises for a purpose other than that for which it was leased. The learned judge had held against him on this point. But it is, Of course open to him to support the decree even on the point decided against him. He relied on the covenant in ext. Al and on the passages in hill and redman's law of landlord an tenant, And woodfall on'landlord & tenant, Referred to earlier, For making out that a positive covenant without more, Is sufficient to imply that the demised premises were to be used only for the purpose indicated and for no other. Counsel for the appellant took up the position that there was no positive covenant at all. This appears to pitch the tent too high. There was a covenant in ext. Al that the premises were to be used for conducting a gold trade. But counsel for the appellant raised an interesting discussion on the question of confining the covenant to the named or specified purpose and as prohibitive of any others. In vinod chandra hiralal gandhi v. Vivekanand mills ltd ahmedabad (air 1967 guj. 255) there is a good survey of the development of the law on the question of inferring a negative covenant against use or action for any other purpose, From mere specification of a positive covenant for a stipulated purpose. Bhagwati j. Who spoke for the court, Noticed, That the basic decision of english law on which this proposition was based montague v. Flockton (1973,16, Eq. 189) was no longer good law in view of the later decision of the english court in whitwood chemical co. V. Hardmun (1891 (2) ch. 416). The learned judge pointed out that the earlier english decision had inspired illustration (d) to s. 57 of the specific relief act, 1877. That illustration seems to suggest that an affirmative stipulation, Without more would imply a negative stipulation, Not to do anything inconsistent with the affirmative stipulation. The later english decision in 1891, Noticed earlier, Overruled the earlier one and held that an affirmative stipulation does not itself imply a negative stipulation not to do anything inconsistent with it but illustration (d) to s. 57 continued to remain on the indian statute book bhagwati j. Pointed out that the illustration was to serve only a limited purpose and was not meant to make the law. When the new specific relief act was enacted in 1963, By s 38 of the said act, Illustration (d) to s. 57 of the earlier act was omitted. These are interesting aspects. In an earlier decision in sree ambarnath mills corporation, Bombay v. Custodian of evacue property (air 1957 b. 119) shah j. (as he then was) held;
"there must be something in the agreement, Apart from the affirmative agreement, Which shows that the promisor has expressly or by necessary implication agreed not to sell the property to any person other than the purchaser"
:
earlier the learned judge stated:
"whether a covenant is affirmative or negative is a matter of substance and not of mere form, And the negative stipulation whether it is express or implied must be distinct; and an affirmative agreement does not by itself imply a negative agreement not to do some, Thing inconsistent therewith"
.
in mec laboratories (private) ltd. V. R. Nathan, Sole proprietor of v. R. Nathan and sons ((1967 (1) m. L j. 363), The madras high court (alagiri swamy j) held that a positive agreement of exclusive service of an employee with an employer during the period of agreement would imply a negative covenant not to serve another employer (see pollack and mulla's indian contract and specific relief acts, 9th edn. P 963). We cannot agree with the learned advocate general that the positive covenant in ext al to carry on business in gold trade carried with it a negative covenant not to carry on business of any other kind whatsoever. Even taking into account the fact that the landlady is a muslim, We do not think that conducting a wine store was so inconsistent with original purpose of the letting as to violate the implied negative covenant not to use the premises for the said purpose. We are accordingly of the view that the plaintiff is not entitled to relief on the ground that there was a use or permission to use the property for a purpose other than that for which it was let. We allow this appeal, Set aside the judgment and decree of the learned judge and direct that the suit will stand dismissed with costs throughout
allowed.