1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 2481 OF 1993 Leo Sequira, since deceased, through heirs and legal representatives : 1. Mrs. Philomina Sequeira & Ors. .. Petitioners. Versus Shankar Dhondu Desai. .. Respondent -- Shri Anil Singh i/by Shri Anil Yadav for the Petitioners. Shri N.K. Mudnaney for Respondent Nos.1(A) to 1(F). -- CORAM : A.S. OKA, J DATE ON WHICH JUDGMENT IS RESERVED : 5TH FEBRUARY, 2010. DATE ON WHICH JUDGMENT IS PRONOUNED: 8TH MARCH, 2010. JUDGMENT: 1. By this writ Petition under article 227 of the Constitution of India, the original petitioner who is the defendant has challenged the judgment and order dated 17th December 1992 passed by the Appeal bench of the Court of Small Causes at Mumbai. The original respondent is the original plaintiff. For the sake of convenience, the parties are hereinafter referred to with reference to their status 2 before the trial court. 2. The plaintiff filed a suit for declaration that he is a tenant or a protected licensee of the defendant in respect of shop No. 10, building no.5, Mathradas colony, Kalina, Santacruz (East), Bombay-400029 (hereinafter referred to as "the suit premises"). The case made out by the plaintiff is that in the year 1966 he was on the lookout for a shop premises on permanent basis as he was desirous of establishing a laundry business. The plaintiff was informed that the defendant was desirous of letting out the suit premises. Therefore, the plaintiff approach the defendant who agreed to let out the suit premises to him on a monthly rent or license fee of Rs. 135/- per month. The defendant persuaded the plaintiff to deposit a sum of Rs.3000/- as a deposit. It is alleged in the suit that with a view to circumvent the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) , and with a view to avoid any trouble from the landlord, an agreement with the label of leave and licence was executed between the plaintiff and defendant. It is alleged that in the agreement the plaintiff has been referred to as the conductor and the defendant as the owner. It is submitted that the said nomenclature used in the agreement is of no consequence at all. It is alleged that the plaintiff 3 was placed in possession of the suit premises and no articles or furniture and fittings or any other movable articles were given to the plaintiff. It is alleged that though the agreement refers to a schedule of movable articles, no such schedule has been annexed to the agreement. It is contended that the parties agreed that the plaintiff would continue to be in possession of the suit premises so long as he desired. It is alleged that at the instance of the defendant said agreement was renewed from time to time for the term of the 11 months. The last of such agreement was executed on 30th June 1974 which is for a period between 4th July 1974 to 31st May 1975. The last agreement was titled as an "Articles of Agreement to Manage". It is pointed out that the earlier agreements were titled as "Articles of Leave and Licence Agreement". It is stated that in the last agreements the monthly amount agreed to be paid was mentioned as Rs.300/-. 3. According to the case of the plaintiff, there was an agreement between the parties that the rent in respect of the suit premises shall be paid by the plaintiff directly to the landlord. It is alleged that while issuing receipts for the payments made by the plaintiff, the defendant used to take rent receipts issued by the landlord. It is stated that the defendant used to issue receipts of the payments 4 made by the plaintiff by describing the same as the amount of royalty and rent. It is contended that the agreement between the plaintiff and defendant which was subsisting on 1st February 1973 was an agreement of leave and licence and /or sub-agency. It is contended that the plaintiff has become a deemed tenant by virtue of provisions of section 15 A of the said Act. In the alternative, it was submitted that the plaintiff is in exclusive possession of the suit premises from the year 1966 and since then he has been carrying on his own laundry business. It is alleged that what has been created by the defendant in favour of the plaintiff is a lease and that the agreements purporting to be the agreements of leave and licence were only a camouflage and were colourable documents. It is contended that the petitioner was a tenant in respect of the suit premises and the standard rent in respect of the suit premises is Rs. 70.15/-. 4. By a letter dated 6th September 1975, the defendant called upon the plaintiff to handover possession of the suit premises and the alleged business carried on therein. The plaintiff by his Advocate’s letter dated 9th September 1975 denied the allegations made in the aforesaid letter. An allegation has been made in the suit that thereafter the defendant met him and threatened to dispossess him 5 forcefully. Therefore, the suit for declaration and injunction was filed by the respondent. 5. The defendant filed written statement and contested the suit. The defendant stated that he was the monthly tenant in respect of the suit premises from the year 1956 and he was carrying on business therein under the name and style of "Colony Cleaners". it is alleged that the defendant conducted the said business till the year 1959. Under an agreement dated 1st May 1959, the said business was given to one Felix for conducting. The said Felix conducted the business till the beginning of the year 1964. Thereafter under the agreement dated 31st March 1964, one Mrs. Juliana was appointed as a conductor of the business who conducted the same till the year 1966. Thereafter the business was given for conducting to the plaintiff under the agreement dated 26th March 1966. It is stated that the agreement was renewed from time to time and the last agreement was entered into on 30th June 1974. It is contended that though the plaintiff was doing business, the suit premises was insured by the defendant for some time. The defendant denied that the agreements executed between the parties were camouflage. The defendant denied all adverse allegations in the plaint and submitted that the plaintiff was not protected under the said Act. It is 6 contended that the plaintiff was mere conductor of the business. 6. The learned trial Judge held that the plaintiff has failed to prove that he was either a deemed tenant or protected licensee of the defendant in respect of the suit premises. The trial Court accepted the case made out by the defendant that the plaintiff was merely a conductor of the business. Therefore the trial court proceeded to dismiss the suit. By the impugned judgment and decree, The Appellate Court held that the plaintiff was a licensee in possession the suit premises and the licence was valid and subsisting on 1st February 1973. It was held that the plaintiff was a licensee within the meaning of the first part of section 5 (4 A) of the said Act. It was held that the Plaintiff was entitled to the protection under Section 15 A (1) of the said Act and that he shall be deemed to have become the tenant of the landlord. 7. The learned counsel appearing for the legal representatives of the defendant submitted that there was evidence on record to show that the defendant himself was carrying on business of running a laundry and earlier he had allowed some other persons to conduct the same. He submitted that there is evidence on record to show that prior to the date on which transaction was entered into between the 7 plaintiff and defendant, the defendant was himself running the business and had appointed conductors from time to time. He submitted that under the different agreements, different consideration has been mentioned. He pointed out that immediately on the expiry of the period mentioned in the last agreement dated the 30th June 1974, a notice was issued by the defendant to the plaintiff calling upon the plaintiff to handover possession of the business. He submitted that the defendant had earlier given the business for conducting to the persons who have been examined as a witnesses. He invited my attention to the terms and conditions incorporated in agreement dated 23rd July 1973. He pointed out that in the said agreement the plaintiff has been described as the conductor and the defendant has been described as the owner of the laundry business under the name and style of "Colony Cleaners". He submitted that the said agreement clearly shows that the plaintiff was appointed as a conductor of the business. He submitted that clause A of sub-section 4 of section 5 of the said Act specifically excludes the conductor of business. He submitted that there was no reason for the appellate Court to have interfered with the judgment and decree of the trial Court. 8. The learned counsel appearing for the respondents supported 8 the impugned judgment and decree. He submitted that there is no evidence to show that the business carried on in the suit premises is of the defendant. He submitted that the business is of the plaintiff himself and therefore , his possession of the suit premises cannot be termed as a possession of the conductor. He submitted that the plaintiff even examined the postman who used to deliver letters in the area of the suit premises. On the other hand, the defendant did not step into witness box and he examined his wife. He submitted that the defendant ought to have entered the witness box as only he had knowledge whether he was carrying on the laundry business in the suit premises. He submitted that there was clinching evidence on record to show the exclusive possession of the plaintiff right from the year 1966. He submitted that there were documents placed on the accord to show that the plaintiff was the owner/proprietor of the business of M/s Colony Cleaners. He submitted that considering the factual aspects, the appellate Court held that the plaintiff is entitled to benefit of section 15A of the said Act. He submitted that in writ jurisdiction no interference is called for. 9. I have given careful consideration to the submissions. The basic contention raised in the plaint is that an agreement of leave and licence was subsisting on 1st February 1973, and therefore, the 9 plaintiff has become a deemed tenant. Without prejudice to the said contention and in the alternative, the plaintiff contended that he was inducted in the the suit premises as a tenant. The appellate Court has accepted the case that the plaintiff was entitled to protection under section 15A of the said Act. The said provision provides that a person in occupation of a premises as on the 1st February 1973 as a licensee shall be deemed to have become a tenant of the landlord. The definition of the word licensee is in sub-section 4(A) of section 5 of the said Act. The said definition specifically excludes a person conducting running business of the licensor. 10. Neither the trial Court nor the appellate Court has considered the case made out by the plaintiff in the alternative that he was inducted in the suit premises as a tenant. The said plea which was in the alternative was not pressed into service by the plaintiff. The case which is accepted by the appellate Court is that on 1st February 1973 the plaintiff was a licensee in possession of the suit premises. In this behalf it will be necessary to consider the averments made in the plaint. In paragraph 7 of the plaint, it is specifically asserted that a writing styled as an agreement of leave and licence was subsisting on 1st February 1973. It is an admitted position that in the agreement which was subsisting as on the 1st February 1973 was styled as an 10 agreement of leave and licence, the plaintiff was described as the conductor of the business and the defendant was described as the owner thereof. Thus, the agreement which was operating between the parties on 1st February 1973 described the plaintiff as the conductor of the business. There is no specific finding recorded by the appellate court that the said agreement was in the nature of a leave and licence agreement in respect of the suit premises. The only finding is that the plaintiff was not conducting the business of the defendant in the suit premises. There is no finding that the agreement in writing which was in force on 1st February 1973 was a camouflage. Even assuming that there was such a finding recorded by the appellate Court , then there ought to have been a finding independent of the said agreement that the possession of the plaintiff of the suit premises as on 1st February 1973 was under a subsisting contract of licence. All that the appellate Court has held is that the plaintiff was conducting his own business in the suit premises. If the case of the plaintiff is that the agreement which was subsisting on that date was a camouflage, then only on the ground that the agreement styled as a leave and licence agreement was operating , the Court could not have come to the conclusion that there was a subsisting licence in respect of the suit premises. For that purpose a specific finding was necessary that independent of the said 11 agreement, the plaintiff was a licensee. No such finding has been recorded. In fact the perusal of paragraph 7 of the plaint shows that the plaintiff is relying upon the said agreement which was admittedly in existence on the said date. The said agreement purports to be an agreement of conducting business between the defendant who was the owner of the business and the plaintiff who was the conductor of the business. As stated earlier, the appellate Court has not accepted the case made out by the plaintiff in the alternative that he was inducted in the suit premises in the year 1966 as a tenant. The only independent witness examined by the plaintiff is the postman. In paragraph 72 of its judgment, the learned trial judge has quoted a portion of his cross examination in which the witness stated that the plaintiff had informed him that he had taken the laundry for conducting and therefore, he was making a new showcase. In paragraph 73 of the judgment, the learned trial judge has noted that the said witness did not offer himself for the cross- examination. The learned trial judge has referred to the evidence on record to show that in the year 1971-72 the defendant had insured the laundry business. 11. As is crystal clear from the averments made in paragraph 7 of the plaint, the plaintiff claimed protection on the basis of the 12 agreement which was in force on the 1st February 1973 which was admittedly executed by the parties. It is not in dispute that under the said agreement, the plaintiff was appointed as the conductor of the running business of the defendant. As stated earlier, the definition in sub-section 4A of section 5 of the said Act excludes from its purview a conductor of the business of the licensor. Apart from this, the last agreement dated 30th June 1974 executed between the parties contains a clear recital that the defendant was the absolute proprietor of the laundry business conducted in the suit premises. The clause 10 of the said agreement clearly provides that the plaintiff has admitted that the defendant was for all purposes is in possession and he has granted a permission to the plaintiff as a conductor to be in the said premises. The said agreement is in fact an agreement styled as "Articles of Agreement to Manage". It was then also noted here that the second last agreement is dated 23rd July 1973 in which the plaintiff has been described as the conductor of the business of the laundry in the suit premises. These are the two agreements admittedly executed by the plaintiff after 1st February 1973. There is no finding recorded by the appellate Court that the said agreements are camouflage or that the same are not binding. Therefore, the finding of the appellate Court that the plaintiff was a licensee in possession in respect of the suit premises on the relevant 13 date is illegal and no such finding could have been recorded on the basis of available material on record. Hence the petition must succeed and I pass the following order: : O R D E R : (1)The rule is made absolute in terms of prayer clause (a). (2)There will be no orders as to costs. (A.S.OKA,J)