To claim protection under the Bombay Rent Act, a defendant must prove a subsisting license agreement before the cut-off date of 01/02/1973; mere occupation does not confer tenancy rights.

JUDGMENT :

M.M. SATHAYE, J.

1. By these petitions under Article 226 & 227 of the Constitution of India, the Petitioner/Original Plaintiff society is challenging common Judgment and Decree dated 29/03/1995 passed by the Appellate Bench of Small Causes Court at Bombay (Bandra) in Appeal Nos.253 of 1986, 268 of 1986 and 254 of 1986. By this common Judgment and Decree, the said appeals filed by three set of Defendants (Defendant Nos. 4, 4A and 5) were allowed, thereby setting aside the Judgment and Decree (of eviction) dated 21/02/1986 passed in R.A.E. Suit No. 2153/7487 of 1974. The dispute arises out of BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT , 1947 (hereinafter referred to as ‘Bombay Rent Act’, for short).

2. Few facts shorn of unnecessary details are as under. The Petitioner filed the said suit against six Defendants for eviction from the suit premises under provisions of Bombay Rent Act. That by deed of conveyance dated 30.07.1966, Petitioner-Society purchased part of property known as ‘Kalyanpur’ situated at 130, Hill Road, Bandra, Mumbai from previous owner-Dr. Rebello. That prior to such purchase, one Mr. Ibrahim L. Contractor was in occupation of ground floor of a structure therein, as monthly tenant of Dr. Rebello, which is the suit premises. That the earlier owner Dr. Rebello by Advocate’s notice dated 06.10.1964 terminated monthly tenancy of Mr. Contractor and called upon him to handover possession. The said notice also set out that Mr. Contractor had unlawfully inducted persons in various portions of the suit premises who were creating nuisance. It was contended that the Defendants have committed an act of waste in respect of suit premises and have erected permanent structure. It was also contended that Defendants are causing nuisance and annoyance to neighbors. Requirement by landlord for the purpose of demolition and reconstruction for providing housing to its members was also urged. It was contended that there has been change of user for more than six months prior to filing of suit.

3. Defendant No. 2 (daughter of original tenant Mr. Contractor) filed written statement (points of defence) contending inter alia that notice to quit was given by original owner Dr. Rebello in October 1964, the Petitioner became owner in July 1966 and suit is filed in 1974. She contended that her father Mr. Contractor was monthly tenant in respect of suit premises and after death of her father, she is alone is entitled to tenancy rights. She denied that tenancy was legally and validly terminated. She contended that Defendant No. 4 Jan Mohd. Sama and his brother Defendant No. 4A Hamid Sama were allowed to use and occupy part of the suit premises ‘on Leave and license basis’ and Defendant No.5 is husband of her maid servant ‘who has been in occupation’ of part of suit premises. That Defendant No.6 being her relative ‘was allowed to use’ part of the suit premises.

4. Defendant Nos.1 & 3 did not file written statement.

5. Defendant No.4 filed written statement (points of defence) denying the requirement, nuisance, permanent structure and change of user as pleaded. Unlawful occupation is denied. He contended that he is deemed tenant, protected under the provisions of the Bombay Rent Act.

6. Respondent No.4A, who was joined subsequently as party to the suit, filed written statement contending inter alia that Mr. Contractor was a contractual tenant of the previous lan