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IN THE HIGH COURT OF BOMBAY
(Dr. D. Y. Chandrachud, J.)
AMRAT LAL VALJI since deceased HEMANT AMRATLAL VALII and another - Appellant
vs.
Dr. G. S. SHAH Respondent.
Advocates Appeared.
For petitioners: A. G. Damle
For respondent: A. K. Abhyankar, Senior Advocate instructed by Nitin Mhatre
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 5(4-A) and 15-A Protection of Section 15A Can be availed of by a licensee as defined in Section 5(4A) Petitioner was not a licensee within the meaning of Section 5(4-A) and was therefore not a protected licensee. The protection of Section 15-A, Bombay Rent Act is a protection which can be availed of by a licensee, a licensee being one as defined in Section 5(4-A). The evidence on the record clearly establishes that the first respondent was a person who was temporarily not occupying the premises that form the subject-matter of this dispute on account of the exigencies of service or by the provision of a residence attached to his post or office. The petitioner is hence clearly a person having accommodation in any premises belonging to or held by an employee who on account of the exigencies of service or provision of a residence attached to his post or office is temporarily not occupying the premises, within the meaning of those words in clause (4-A) of Section 5 of the Act. In that view of the matter, the petitioner was not a licensee as defined in clause (4-A) of Section 5 since his case was carved out by virtue of the exclusionary clause therein. Not being a licensee a defined in Section 5(4-A), the petitioner was not entitled to protected conferred upon licensees by Section 15-A of the Act as amended by Maharashtra Act 17 of 1973.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 15-A Presidency Small Causes Court Act, 1882, Section 41 Constitution of India, 1950, Article 227 Eviction First suit claiming tenancy declaration already dismissed Appeal also dismissed Findings corroborated by surrounding circumstances Concurrent findings corroborated, cannot be disturbed Findings not require interference. The Appellate Bench noted that there was no evidence to show that the payment was made or for any expenditure on account of renovation. The totality of the circumstances of the case therefore clearly militates against the acceptance of the submission of the petitioner that the real nature of the transaction between the parties was a transaction of tenancy. The finding arrived at by the Courts below therefore does not suffer from any error of a nature that would require the invocation of the supervisory jurisdiction under Article 227.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 15-A Presidency Small Causes Court Act, 1882, Section 41 Constitution of India, 1950, Article 227 Eviction Entitlement to protection First suit and appeal both dismissed Challenged in writ Petitioner not a licensee as per Section 5(4-A) Held Not entitled to get protection under law. On behalf of the petitioner it has been submitted that Section 5(4-A) defines the expression ’licensee’ but not the expression ’licensor’. The submissions, however, would not carry the case of the petitioner any further because the protection that is conferred by subsection (1) of Section 15-A is on a licensee. Unless a person is a licensee in occupation of any premises not less than a room, he would not be entitled to the benefit of the deeming fiction created by the statute of being regarded as a tenant of the landlord. Maharashtra Act 17 of 1973 amended the provisions of the Rent Act in several respects. Section 13(1)(e) was amended so as to provide a ground for eviction where the tenant had after the commencement of the Amending Act of 1973 unlawfully given on licence the whole or any part of the premises or assigned or transferred his interest therein. Section 14(2) of the Act as amended provides that where the interest of a licensor who is a tenant of any premises is determined, the licensee who by Section 15-A is deemed to be a tenant, shall be deemed to become a tenant of the landlord, on the terms and conditions of the agreement consistent with the provision of the Act. The protection of Section 15-A is a protection which can be availed of by a licensee, a licensee being one as defined in Section 5(4-A). There is nothing in the subject or context of Section 15-A that is repugnant to the definition contained in Clause (4-A) of Section 5. The petitioner was inducted for a temporary period during which the First Respondent was allotted service quarters by the Central Railways. The petitioner was not a licensee within the meaning of Section 5(4-A) and was therefore not a protected licensee. In order to enable the petitioner to seek recourse to the remedies in appeal against this judgment and order, there shall be direction to the effect that the decree for eviction shall not be executed for a period of six weeks from today, subject to the filing of the usual undertaking. The undertaking shall be filed in two weeks. The stay which has been granted shall be subject to the condition that all the arrears on account of licence fee and society charges at the contractual rate shall be paid within a period of two weeks from today. R & P may be returned.
2. The premises in the present case comprise of Flat No.5 situated on th first floor of a building known as Sagar Mahal at Walkeshwar Road, Mumba 400 006. The First respondent is a medical doctor and was at the material time i the service of the Central Railways as an Assistant Medical Officer. On Is December, 1972, an agreement styled as a caretaker agreement was entered int between the First respondent and the predecessor -in -interest and father of the petitioners, Amratlal Valji who expired during the pendency of thes proceedings. Under the agreement a licence was granted to Amratlal Valji to reside in the premises for a term of six months. The execution of the agreement has not been disputed. By Maharashtra Act 17 of 1973 the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were amended inter alia to incorporate by section 15A a protection to licensees who were in occupation of premises on 1st February, 1973. Amratlal Valji instituted a declaratory suit on 20th December, 1973 in the Small Causes Court. The First respondent instituted a suit for eviction under section 41 of the Presidency Small Cause Courts Act, 1882 on 15th March, 1979. Evidence was adduced in common. The Trial Judge dismissed the declaratory suit and decreed the suit for eviction instituted by the First respondent. That order was confirmed by th
Appellate Bench of the Small Causes Court.
3. In assailing the correctness of the judgment and order of the Appellat Bench, two submissions have been urged before the Court on behalf of the petitioner; (i) Though the agreement dated 1st December, 1972 is styled as a caretaker agreement and purports to confer no more than a licence to the petitioner to occupy the premises for a period of six months, in substance the intention of the parties was to create a tenancy. While the agreement of 1st December, 1972 was in fact executed by the petitioner, both the Courts have erred in rejecting the contention of the petitioner that it was obtained by fraud or misrepresentation; (ii) The petitioner was in occupation of the premises under a licence which subsisted on 1st February, 1973 and upon the enactment of Maharashtra Act 17 of 1973 he attained the status of a tenant as envisaged by law. Both these submissions fall for consideration before the Court.
4. The first submission first. The Court must, when an issue of the present nature arises have regard to the substance of the transaction between the parties, The substance of the transaction has to be assessed with reference to the documentary material principally consisting, as it does, of the written agreement between the parties. When the terms of the agreement are unclear the real intention of the parties has to be determined with reference to all the surrounding circumstances and it is a trite principle of law that mere labels which parties assign to the contract between them are not of determinative significance.
5. The leading authorities on the subject include Associated Hotels of India Ltd. VS. Roo N. Kapoor, AIR 1959 SC 1262 : (1960)1 SCR 368, Sohan Lal Naraindas vs. Laxmidas Raghunath Gadit, 1971 Mh.L.J. (SC) 604 = 1972 BLR 144,
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