1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1306 OF 2008 IN SUIT NO.1777 OF 2004 Salma Asgarali Makati & Ors. ...Plaintiffs Vs. Shabbir Shaikh Shamsuddin Pachorawal & Ors. ...Defendants And Eden Testronics Pvt. Ltd. & Anr. ...Respondent Mr. Behram Shroff i/b. Zaidy & Co., for Plaintiffs Mr. S. Gangan i/b. RMG Law for Defendant No.1 Mr. Chetan Kapadia i/b. Kishore Thakordas & Co. for Respondent No.1. CORAM: SMT.ROSHAN DALVI, J. DATED: 17 TH NOVEMBER, 2008 ORAL ORDER: 1. This suit is essentially between 3 sisters and 1 physically challenged brother on the one hand and the 2 brothers on the other in respect of the administration of the estate of their deceased father. The relationship between the parties is admitted. The estate left by the father is also admitted. Defendant No.3 is a partnership firm initially constituted by the father of the parties in which Defendant No.1 and the members of his family alone are at present carrying on 2 business. 2. In the properties forming the part of the estate of the deceased Respondent No.1 to the Chamber Summons has been put in possession under certain agreements to Leave and Licence. These agreements have been entered into in 1994 and then in 1995. The licence fees payable under the agreement is determined as on the date of the agreement. Respondent No.1 has continued in possession of the licenced premises all through. The licence fees have been increased from time to time. Receipts in respect of the payment of licence fees have been issued. These receipts also show enhanced amounts after the date of the initial licence. The application made in the Chamber Summons by the Plaintiffs is for 2 fold reliefs. One is essentially for the determination of licence fees payable by Respondent No.1. The other relief is for paying off the share of the Plaintiffs from the licence fees received. 3. Defendant No.1, who is also one of the heirs and legal representatives of the deceased, joins in with the Plaintiffs for receipt of the additional licence fees, but has opposed payment to be made to the Plaintiffs! If the payment is made to the Plaintiffs, it would also be made to Defendant Nos.1 and 2 as per the share each of them is entitled to. Joining 3 with the Plaintiffs in the plaint for the reliefs against the licencees, but not in paying off their shares therefrom appears prima- facie to be perverse. 4. However, Defendant No.1 has drawn my attention to the order of the trial Court dated 15 th December, 2005, in which the rent/monthly occupation charges are directed to be paid by the licencees to the Court directly. Hence has contended that, therefore, the payment received by the Court Receiver cannot be distributed amongst the parties. It may be mentioned that receipt of rent or compensation is always initially made to the Court Receiver. Thereafter, upon considering the facts of each case and seeing the admissions and the relationship between the parties and their entitlement the order for payment is made. 5. However, in this application the initial aspect to consider is the extent of the licence fees to be paid by Respondent No.1. The Court Receiver has determined the amount payable to the Court Receiver upon seeing the amount or licence fees/occupation charges payable in the licence agreement which have been executed as far back as since 1995. 6. It is contended on behalf of Respondent No.1 that 4 neither the Court Receiver nor the Court has jurisdiction to increase the amount of licence fees by any application made in this Suit. It is contended that, that is a matter for the Bombay Rent Court to decide and this Court cannot assume that jurisdiction. In support of this contention the decision in the case of Anthony C. Leo Vs. Nandlal Bal Krishnan, AIR 1997 S.C. 173 has been relied. In essence that judgment required the Courts not to pass any order or direction effecting the right of tenant protected, controlled or regulated by the Rent Act. These proposition of law must be first understood. The protection, control and regulation of the rights of tenants under the Maharashtra Rent Control Act (the Act which is in force at present in that regard ) is in respect of protection or possession and safety against dispossession. Consequently in the judgment the various observations show that order of eviction or an order for maintenance or preservation of the property cannot be passed and any incidence of tenancy cannot be altered, varied or interfered with except in accordance with the provisions of the Statute. This specific proposition can be gathered from the observations made in paragraph 31 of the judgment thus :- “Apart from an eviction proceeding, any incidence of tenancy which is regulated and controlled by a social Statute cannot be altered, 5 varied or interfered with except in accordance with the provisions of such Statute.” 7. The alteration of the tenancy is essentially made by way of payment of further rent or compensation. That is the only application in this case also. The observation shows the power of Court to alter such instances of tenancy, but in accordance with the Statute. The Maharashtra Rent Control Act does not prohibit enhancement of the compensation in case of licence. The Respondent No.1 is a mere licensee. The licence of 1994 was initially for a period of one year. Thereafter the licence of 1995 was for a period of 5 years. The licences have expired by efflux of time. Under Maharashtra Rent Control Act the Licensors can sue to recover possession. However, this Court cannot pass directions for recovery of possession. The Plaintiffs have not even applied for such a relief. Hence, in fact, the licencees would continue in possession of the premises despite the licence having come to an end only because of the dispute between the parties to the suit. Whilst they so continue in possession they have also thus far continued to pay the licence fees determined in 1995 without any enhancement thereto. 8. If the Court Receiver is appointed in respect of the 6 premises for which rent or compensation has to be collected he would consider the present market value of the property in respect of the licence to be created. It, therefore, follows as a corollary that the Court Receiver can also alter or vary the terms of the earlier licence to bring it on par with the market value at present. In fact the Court Receiver himself could have applied for determination and enhancement of the licence fees/ rent/ compensation payable. Instead the Court Receiver has determined the licence fees simpliciter based upon the licence fees paid 13 years ago. Enhancement of such licence fees would be in accordance with the provisions of the Statute. It would in fact protect the possession of respondent No.1 as the licencee. It is not an aspect which falls within the jurisdiction of any other Court. There is, therefore, no bar to the Court receiver or the Court in enhancing the licence fees payable. 9. In fact the further observation of the Court with regard to the Court’s powers in respect of tenants or properties for which Court Receiver is appointed goes even further. Hence, it is observed that the Courts supervision extends to prevention of illegal and unauthorized activities of a tenant also, albeit after giving such tenant reasonable opportunity to place his defence thereto. 7 10. What is excepted by that judgment is orders and directions of the Court in a summary proceedings such as this with regard to unauthorized constructions already put up which would expose the tenant to eviction since such orders are required to be passed by the Rent Court alone. In that case it was a permit room. 11. Anthony Leo’s case has been interpreted, considered and distinguished in the case of Usha Harashadkumar Dalal Vs. M/S. ORG Systems, 2000(2) B.C.R.(1) S.C. In that case after the appointment of Court Receiver the party in possession inducted another party by virtue of an amalgamation order passed by the Company Court. A new party came to occupy the premises for which the Court Receiver was earlier appointed. In that case earlier the licence agreement, which was renewed initially for 5 years came to expire by afflux of time. Court Receiver applied for recovery of possession from the new party inducted after his appointment and without the leave of the Court. Distinguishing that case from Anthony Leo’s case (supra), it was held that for the purpose of preservation of the property, which is the very object of the appointment of Court Receiver, a stranger inducted into the premises could be dispossessed. The Court Receiver is held not require to approach the Rent Court for such remedy. It is observed 8 that the ratio of the judgment in Anthony Leo’s case was completely misread and misinterpreted by the High Court in not allowing the Court receiver to take possession of the property from the stranger so inducted. 12. It may be mentioned that in a number of cases and from time to time parties in possession are allowed to continue in such possession as agents of the Receiver or otherwise only upon they paying the market value of the property in their possession. 13. In this case it would be the value of the licence fees payable for a similar property at present. The Court Receiver as also this Court has ample powers to determine or have determined such market value by following the usual procedure of valuation. 14. It may be mentioned that since the property in possession of Respondent No.1 is Custodia Legis and has to be protected and preserved for the benefit of the parties to the suit, Respondent No.1 can be allowed to continue in possession only after Respondent No.1 pays the market value of the licence fees governing at present for similar properties. 15. It is common knowledge and judicial notice is required to 9 be taken of the fact that prices of all the properties have greatly escalated after 1995. licence fees payable by Respondent No.1 cannot remain static at what was paid 13 years ago. The Court Receiver shall have to determine the licence amount payable as per the present market value of the property of similar nature given for licence and also taking into account the ready -reckoner, if any, to the extent that it can assist in determining the licence value of the premises or by obtaining a professional opinion of a Valuer on the panel of the Court Receiver. In fact the Court Receiver is required to value such properties for determination of market values at regular intervals of about 3 years. 16. Hence following order: i) The Court Receiver shall determine the licence value of the premises as of today. ii) Respondent No.1 shall pay the licence amount as determined by the Court Receiver. iii) After the amount is so determined and paid by Respondent No.1 to the Court Receiver, the Plaintiffs shall make whatever application they deem fit to the Appellate Court to get the order dated 15 th December, 2005 modified as required for payment of their admitted shares as per law governing them. 10 (SMT. ROSHAN DALVI, J.)