1998 Supreme(Bom) 231

IN THE HIGH COURT OF BOMBAY
P.S. Patankar, J.
Shri Kiritkumar Vallabhdas Gajaria another ..... Petitioners.
Versus
Champaben N. Kapadia others .... Respondents.
Writ Petition No. 2336 with W.P. No. 5986 of 1997, decided on 13/15-4-1998.
Advocates appeared :
B.S. Desai, for petitioner in W.P. 2336/97.
R.K. Sanghvi, for respondents in W.P. 2336/97.
A.G. Parekh with H.C. Tunara, for respondents 2 3 in W.P. 2336/97.
V.K. Punwani, for petitioner in W.P. 5986/97.
V.Y. Sanglikar, for respondent in W.P. 5986/97.

Headnote:Article 141-Presidency Small Causes Courts Act, 1882, Section 41Jurisdiction for gratuitous licensee-In light of two division bench judgments and Apex Courts judgment, it is not necessary to refer the matter to a larger bench as these decisions have sufficient scope of Section 41 of P.S.C.C. and it covers the case of gratuitous licensee as well. Reliance is place on 1998(2) SCC 44; Usha Kumar v. State of Bihar and others. In the said case also it was observed that the judicial discipline requires that if the two Division Benches of the same High Court take different views, the matter should be referred to a larger bench. One Division Bench cannot ignore or refuse to follow the decision of an earlier Division Bench of the same Court and proceed to give its decision contrary to the decision given by the earlier Division Bench. If it is inclined to take a different view, a request should be made to the Chief Justice to refer the same to a Full Bench.

       Reliance is placed on AIR 1980 SC 1707; Rajpur Ruda Meha and others v. State of Gujarat. The Apex Court held that when certain question is neither raised nor argued a discussion by Court after pondering over the issue in depth would not be a binding precedent. It was a case where constitutional validity of Section 384 of the Criminal Procedure Code was not considered earlier by the Supreme Court. Only constitutional validity of Rule 15(1)(c) of Order XXI of the Supreme Court Rules was considered. Similar is in effect the judgment of the Supreme Court reported in AIR 1990 SC 781; M/s. Goodyear India Ltd. v. State of Haryana and another. It was held that a decision on a question not argued cannot be considered as precedent.

       Reliance is also placed on 56 Bom LR 1156; Mohandas Issardas v. A.N. Sattanath, in which it was held that the only opinion expressed by Supreme Court which would be binding would be the opinion expressed on a question that arose for determination by the Supreme Court and the question carefully considered and opinion expressed.

       There is no dispute regarding ratio but the question is whether considering the Division Bench Judgments of this Court and the judgments of the Supreme Court, the above submissions hold any water. In my opinion not.

       The reliance is placed upon a decision reported in 1994 Born RC 47; Vijay K. Divekar v. Deepak Jayantilal Gandhi and others. In this case, Chaudhary, J. mainly considered the provisions of Sections 5(4-A) and 15-A of the Bombay Rent Act. It was held that a combined reading of Sections 5(4-A) and 15-A of the Bombay Rent Act excludes the gratuitous licensee from getting protection of Section 15-A. In such a situation the Civil Court would continue to exercise jurisdiction for recovery of possession of the premises from a gratuitous licensee.

       No doubt, in the said suit by the licensee, there was an averment in the plaint regarding payment of monetary consideration to the licensor and in that context a reference was made to it in paras 16 and 19 of the said judgment. But it is very clear from what has been laid down that payment of monetary consideration is not a pre-requisite for filing a suit under Section 41.

       Section 41-Constitution of India, Art. 227-Easement Act, 1882, Sec. 52, Bombay Rents, Hotel and lodging Houses Rates (Control) Act, 1947, Sec. 5(4-A)-Licence fee for gratuitous licensee-As per Supreme Court decision in, 1994 Mah RCJ 90 (SC) payment of licence fee is not an essential attribute for subsistence of a licence.-Gratuitous licence is not covered by Section 41 of the Act and hence, the suit in the Small Causes Court was not maintainable. It is also submitted that there is divergence of opinion on this point and there are judgments on both sides and hence, the matter should be referred to a Division Bench. This submissions are countered by the other side. Licence is defined under Section 52 of the Indian Easement Act, 1882.

       The definition of "licence" is also contained in Section 5(4-A) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (Bombay Rent act for short). This definition came to be added by Maharashtra Act of 1973. Obviously, this was with a view to grant protection to such licensees under Section 15-A of the said Act. Section 15-A was also introduced by Act of 1973 and certain licensees who were in occupation on 1.2.1973 were to become tenants and were granted protection of the Bombay Rent Act. It is settled by the judgment of the Supreme Court reported in 1994 Maharashtra Rent Control Journal Page 90, State of Punjab and others v. Brigadier 5ukhjit Singh, 1994 Mah RCJ 90 (SC), that payment of licence fee is not an essential attribute for the subsistence of a licence.

       Section 41-Easement Act, 1882, Sec. 52-Bombay Rents, Hotel and Lodging Houses Rates (Control) Ad, 1947, Sees. 5(4-A) and 15-AJurisdiction to deal with Gratuitous licensee. A suit would not be against a trespassers even if, a licensee, without leave may became a trespasser, further, the Small Causes Court has also jurisdiction to deal with it under Sec. 41 of PSCC Ad.--Considering tile two Division Bench judgments in AIR 1980 Bom 123, Nagins case and in LPA No. 128 of 1993, dated 3.9.1993 (Mohtu & Shah, JJ.), mentioned above and the apex Court judgments reported in 1977(1) SCR 403 Mah RCJ 90 (SC) and AIR 1995 SC 1002. In the opinion of this Court, it is not at all necessary to refer this matter to the Division Bench. The latest judgment of the Supreme Court reported in AIR 1995 SC 1102, was not considered earlier. It arose out of a suit by licensee against the licensor praying for injunction averring in the plaint payment of monetary consideration for occupation of the premises. Because, of such averment made by the plaintiff, at some places in the judgment the apex Court made reference to it. But, as pointed out above, the Supreme Court has laid down the scope and ambit of Section 41 in clear terms which certainly covers a gratuitous licensee.

       Further a plain reading of Section 41 of the Act, pre--1976 and post-1976, as reproduced above shows that the person must be in possession of premises by permission of another person and that such permission must be withdrawn before filing an application against such a person. Once the permission is withdrawn, he becomes a person occupying property without leave. Section 41 exactly covers this. Section does not speak that a person should be in possession of premises on giving some consideration, Section 41 clearly shows that application can be filed even against a person occupying premises gratuitously. A gratuitous licensee would be a licensee within the meaning of Section 52 of the Easement Act and, therefore, even after revocation of such licence, the suit would be between the licensor and the licensee as held by the Division Bench in, Nagins case followed by Pendse, J., in Eknath Vithals case (cited supra) and affirmed by the Supreme Court in, AIR 1995 SC 1102. Therefore, because, of the termination of licence, the licensee may become a trespasser, but nonetheless, the suit is not against trespasser.