ash 1 fa-515.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.515 OF 1998 Vinodchandra Mohanlal Sampat, ) Adult of Mumbai Indian Inhabitant, ) residing at Room No.18, Bhatia Building ) No.1, Bhoiwada, Parel, Mumbai – 400 012. ).. Appellant. (Org.Deft.No.2) Versus 1. Salamatullah Barquatullah, ) (since deceased through Lrs - ) 1(a) Smt. Rafiq Jahan Salamatullah, ) 1(b) Mr. Shahidullah Salamatullah, ) 1(c) Mr. Rashidullah Salamatullah, ) 1(d) Mr. Shakir Ullah Salamatullah, ) 1(e) Miss Aziz Zahan Salamatullah, ) 1(f) Miss Sufiya Zahan Salamatullah, ) 1(g) Miss Nasrin Zahan Salamatullah, ) All residing at Mandavkar Chawl ) No.3, Parel Post Office Lane, ) Neard Dena Bank, Parel, ) Mumbai – 400 012. ) 2. Maharashtra Housing and Area ) Development Authority, a body ) corporate of Defendant No.1 ) having its office at Griha Nirman ) Bhavan, Room No.45, Gr. Floor, ) Bandra (East), Mumbai 400 051. ).. Respondents -- ash 2 fa-515.98 Shri R.D. Dave for the Appellant. Shri R.R. Arolkar for Respondent No.1. Shri A.R. Patil, AGP for Respondent No.2. -- CORAM ; A.S. OKA, J DATED : 9TH SEPTEMBER, 2011 ORAL JUDGMENT : . This Appeal has been preferred by the original second Defendant challenging the decree passed in a suit filed by the first Respondent. 2. The first Respondent Claimed in the suit that he has been carrying on business of watch repairing in a stall/Shop No.7 ( hereinafter referred to as “the suit premisese”) near Gurukripa Hotel on the ground floor of Nana Building, Dr. Ambedkar Road, Parel, Mumbai. It is alleged by the first Respondent that one Mohanlal Sampat, father of the Appellant executed a leave and license agreement dated 25th November, 1967 and sublet the suit premises to the first Respondent. It is alleged that the leave and license agreement came to be prepared to avoid eviction proceedings by the landlord of the suit premises and the agreement was executed to show that the father of the Appellant had given the watch repairing business in the suit premises to the first Respondent for conducting purposes. It is contended that the leave and license agreement was not to be acted upon and in fact the ash 3 fa-515.98 suit premises were sublet to the first Respondent. Reliance is placed on the leave and license agreement dated 24th November, 1967 executed by and between the father of the Appellant and the first Respondent. It is contended that after the expiry of the said agreement, another leave and license agreement dated 25th December, 1968 was executed by and between Mohanlal ( father of the Appellant ) and the first Respondent on identical terms and conditions. It is alleged that after the death of Mohanlal, there were similar leave and license agreements executed between the Appellant and the first Respondent in the years 1974, 1975, 1976 and 1977. The last agreement of leave and license was made on 26th January, 1977. It is contended that the first Respondent continued to carry on business of Ruby Watch Company in the suit premises. It is contended that the first Respondent was paying monthly rent of Rs.110/- to deceased Mohanlal. It is contended that the rent receipts were issued by the Appellant’s father. It is contended that the Appellant declined to accept rent from the year 1989. Reliance is placed on various documents to show that the first Respondent is in possession of the suit premises. It is alleged that the building in which the suit premises is situated became dilapidated and old and hence, the second Respondent ( Maharashtra Housing and Area Development Authority) issued a certificate under Section 88(3)(a) of the Maharashtra Housing and Area Development Act, 1976 ( hereinafter referred to as “the said Act”). It is contended that the second ash 4 fa-515.98 Respondent submitted a proposal for acquisition of the land on which the said building was situated and the proposal of acquisition was approved under Section 93(2) of the said Act. 3. Reliance is placed on the correspondence made by the first Respondent with the second Respondents. It is contended that the Executive Engineer of the second Respondent assured the first Respondent that the name of the first Respondent will be included in the list of tenants. 4. It is stated that in the month of August, 1987, the first Respondent was served with the notice by the Special Land Acquisition Officer together with the list of tenants and occupants. It is stated that instead of mentioning the name of the first Respondent in the list, the name of “M/s. Watch Company” was incorporated in the list. Reliance is placed on the Advocate’s letter dated 14th June, 1989 sent by the Advocate for the first Respondent to the Executive Engineer of the Second Respondent-MHADA. It is contended that the Appellant in collusion with the officers of the second Respondent got managed to obtain a vacation notice in respect of the suit premises in his name with a view to obtain alternate premises in his name in lieu of the suit premises. In the suit it is stated that except the ground floor of Nana Building, all the upper storeys have been razed to the ground. The suit ash 5 fa-515.98 was essentially filed on the ground of apprehension that the ground floor was likely to be pulled down. The suit was filed for a declaration that the first Respondent is entitled to an alternate accommodation in lieu of the suit premises. A prayer for perpetual injunction was made restraining the second Respondent from giving possession of the temporary accommodation in a transit camp or alternate accommodation to the Appellant. During the pendency of the suit, a Notice of Motion was taken out for interim relief. It is contended that in breach of the order passed by the Court, the second Respondent allotted the alternate premises to the Appellant. Therefore, necessary amendment was carried out and a prayer was added in the Plaint directing the Appellant to hand over possession of the new premises to the first Respondent in the newly constructed building. 5. A Written Statement was filed by the Appellant opposing the suit. Various contentions were raised in the written Statement. It is contended that the father of the Appellant was doing the watch repairing business in the hanging stall on the front portion of Shop No.5 in Nana Building, Parel, Mumbai, and he had given the said stall to the first Respondent on conducting basis. It is contended that the said stall was hanging on the front portion of the outer wall of Shop No.5 and the conductor of the business had no place for sitting and he had to sit on a stool on the footpath in front of the said wooden hanging stall of watch ash 6 fa-515.98 repairing business. It is denied that the first Respondent had been inducted as a sub-tenant. It is contended that the Agreement of the year 1967 was a conducting agreement and not a leave and license agreement. It is contended that the father of the Appellant was never the tenant of the landlord of the building. It is contended that on demolition of the building, the said business which was being carried on in the said hanging stall came to an end. It is contended that the first Respondent had no right to conduct the said business. 6. The second Respondent has also filed a Written Statement. It is contended that the name of the first Respondent was never appearing as a tenant. It was contended that in the list of occupants, the name of M/s. Watch Company was shown against Room No.7 which is a non-residential room. 7. The parties adduced evidence. The first Respondent stepped into the witness box. The Appellant also examined himself in the suit. 8. The Trial Court framed the issues. The issues framed by the Trial Court and the findings recorded thereon read thus:- ash 7 fa-515.98 I S S U E S F I N D I N G S 1. Whether the plaintiff makes goods his case of he being in possession of the premises since demolished so as to be entitled to the transit premises and the new premises ? YES 2. Whether there is substance in the case of the defendant no.2 that the plaintiff was merely conducting the business of watch repair of the father of the defendant no.2 in a structure which has been demolished. NO 3. Whether the suit suffers for want of a pre-action notice under Section 173 of the MHADA Act? NO 4. Whether the suit is barred ? NO 5. What relief if any is the plaintiff entitled to ? To a direction as indicated in the final order . 6. What order ? The suit is decreed. The operation of this order to remain stayed till 15/6/98. See the order below. 9. The Trial Court recorded a finding that the first Respondent has become a tenant by virtue of Section 15(2) of the Bombay Rents, Hotel and Lodging House, Rates Contract Act, 1947 (hereinafter referred to as “the Bombay Rent Act”). The Trial Court passed a decree ash 8 fa-515.98 in favour of the first Respondent. The operative part of the decree reads thus:- “1. It is declared that the plaintiff was entitled to the old premises since demolished and he is entitled to the new one that has come up in lieu thereof. 2. The defendants are directed to act in accordance with this order. 3. The suit is decreed in above terms with costs. 4. The operation of this order is stayed till 15/6/98. 5. The original documents to be returned to the parties on usual undertaking and on their filing on record the xerox copies thereof.” 10. The first submission of the learned counsel appearing for the Appellant is that only finding recorded by the Trial Court in favour of the first Respondent is that he has become a tenant by virtue of Section 15(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the Bombay Rent Act”). His submission is that the said finding is completely contrary to the agreements on record which are conducting agreements. He submitted that it was never the case of the first Respondent that he was a sub- tenant in possession of the suit premises. He submitted that the suit premises was merely a stall hanging on the outer wall of Shop No.5 ash 9 fa-515.98 and, therefore, it is not a premises within the meaning of the provisions of the Bombay Rent Act. His submission is that in any event, the finding recorded about the applicability of Section 15(2) of the Bombay Rent Act, which is the only finding in favour of the first Respondent is completely erroneous and is completely contrary to the record. Learned counsel has placed reliance on an unreported decision dated 13th August, 1964 of this Court ( Tulzapurkar, J ) in Civil Revision Application No.975 of 1963 ( M/s Mathurabhai Jhaverbhai Patel & Sons v. Thakurdas Khiaram). He submitted that the said judgment holds that the stall attached to a wall, which is merely in the nature of a cupboard, cannot be said to be a premises within the meaning of Section 5(8) of the Bombay Rent Act. 11. The learned counsel appearing for the first Respondent invited the attention of the Court to the pleadings. He submitted that the case made out by the first Respondent is that he is an “Occupant” within the meaning of Sub-section (25) of Section 2 of the said Act and by virtue of being an occupant, the first Respondent is entitled to an alternate accommodation under Section 94(5)of the said Act. His submission is that the agreements produced on record executed by the Appellant as well as his father clearly show that the first Respondent being a licensee was an occupant within the meaning of the clause (d) of Sub-section (25) of Section 2 of the said Act. His submission is that ash 10 fa-515.98 the Trial Court was right in passing a decree directing the second Respondent to allot a premises to the first Respondent. 12. I have given careful consideration to the submissions. The case made out in the Plaint is that there was acquisition of the land below the building in accordance with Sections 92 and 93 of the said Act. Under Sub-section (1) of Section 94, when the second Respondent requires the occupiers of any building on the property acquired to vacate the premises for facilitating a construction of a new building, the second Respondent is required to allot temporary accommodation to the Occupiers. Sub-section (5) of Section 94 provides that the Occupiers shall have the right to get an accommodation in the new building free of cost. 13. The learned counsel appearing for the Appellant submitted that the suit premises was only a cupboard or a stall hanging on the outer wall of Shop No.5 and it was not a premises contemplated by Section 94. However, the Appellant cannot be permitted to raise the said contention inasmuch as in lieu of the said premises, an allotment of a new premises was purportedly made to the Appellant. Therefore, the only question to be decided is whether the first Respondent was an occupant within the meaning of Sub-section (25) of Section 2 of the said Act. Sub-section (25) of Section 2 reads thus:- ash 11 fa-515.98 “2(25) “occupier” includes - (a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable; (b) an owner in occupation of, or otherwise using, his land or building; (c) a rent-free tenant of any land or building; (d) a licensee in occupation of any land or building; and (e) any person who is liable to pay to the4 owner damages for the use and occupation of any land or building; 14. On a plain reading of Sub-section 25 of Section 2 of the said Act, it is apparent that a person falling in only one category out of five will be an occupier in respect of the premises. If different persons fall in different categories of Sub-section 25 of Section 2 of the said Act, each one of them will not become an occupant. Submission of the learned counsel appearing for the first Respondent is that the case of the first Respondent will fall in Clause (d) as the first Respondent was a licensee in occupation. Therefore, it will be necessary to make a reference to the averments made in the Plaint. In Paragraph 1 of the Plaint, reliance is placed on a leave and license agreement dated 25th November, 1967 executed by the father of the Appellant in favour of the ash 12 fa-515.98 first Respondent. It is specifically contended that the father of the Appellant sublet the suit premises to the first Respondent. In fact, there is a specific averment in Paragraph 1 of the Plaint that the said leave and license agreement was not to be acted upon and in fact the suit premises was sublet to the first Respondent. There are further averments stating that the first Respondent was paying rent of Rs.110/- per month firstly to the father of the Appellant and thereafter to the Appellant and that there were rent receipts issued by them. Thus, the specific contention in Paragraph 1 of the Plaint is that though there were leave and license agreements executed, the same were not to be acted upon and in fact the father of the Appellant inducted the first Respondent as a sub-tenant in the suit premises. Thus, on plain reading of the averments made in the plaint, the first Respondent cannot claim to be a licensee in occupation. 15. The first Respondent stepped into the witness box. The relevant part of the examination-in-chief reads thus:- “The suit premises is situated at Parel Naka. It is situated in Nana Bldg.Dr.B. Ambedkar Road, Parel Bombay-12. The suit premises is a stall. The suit premises is annexed to the wall of what is at present Gurukripa Hotel. Previously it was known as Alankar Hotel and therefore Natraj Hotel. I am in possession of the suit premises from the year 1967. This stall originally belonged to Shri Mohanlal the father of deft. No.2. He had given me the suit premises, ash 13 fa-515.98 under a writing. I produce the agreement of Leave and Licence dtd 25.11.67. It was executed between myself and Shri Mohanlal. Mr. Dubey does not object to exhibiting this document. It is taken and marked Exh.A. When I took the suit premises from Shri Mohanlal nothing was being done there and the shop was closed, I started my watch repairing shop in the name and style of Ruby Watch Co. The shop was named after my brothers daughter Ruby. I had taken shops and establishment certificate for my business. I produce the same.” 16. In this particular portion of the examination-in-chief or in any other part thereof, the first Respondent has not come out with a case that the father of the Appellant had sublet the premises to him. On the contrary, he relied upon the leave and license agreement dated 26th November 1967. It must be also noted that in the legal notice dated 14th June, 1989, the Advocate for the first Respondent stated that the first Respondent was in exclusive possession of the suit premises for 22 years. However, the nature of the right claimed by the first Respondent was not set out. However, in the subsequent notice dated 24th July, 1989 sent by the Advocate for the first Respondent, it was contended that the first Respondent was in exclusive possession of the suit premises under a leave and license agreement from the year 1967 and, therefore, by virtue of the 1973 Amendment to the Bombay Rent Act, he became a deemed tenant. ash 14 fa-515.98 17. Thus, in the Advocate’s notice, the case made out is that by virtue of being a licensee, the first Respondent became deemed tenant by virtue of 1973 Amendment to the Bombay Rent Act. In the plaint, the first Respondent came out with a case that he was inducted as a sub-tenant and not as a licensee and in fact, it is his specific case that the leave and license agreement was not to be acted upon. In the examination-in-chief, the first Respondent has neither stated that he was inducted as a sub-tenant nor that in the year 1973, he has become a deemed tenant by virtue of being a licensee. However, the finding of the Trial Court is that the first Respondent is a deemed tenant under Section 15(2) of the said Act. Thus, in the notice which preceded the suit, in the plaint and in the deposition, the first Respondent/Plaintiff has come out with the inconsistent and different versions. 18. By the Maharashtra Act No.17 of 1973, the Bombay Rent Act was amended by incorporating Section 15A. The said Section provided that a licensee in occupation on 1st February, 1973 of a premises which is not less than a room shall be deemed to have become a tenant of the landlord. This plea is obviously not available to the first Respondent as the case made out in the Plaint is that the first Respondent was inducted as a sub-tenant and not as a licensee. Therefore, Section 15A of the said Act will have no application. Sub- section (2) of Section 15 of the said Act prohibits subletting or transfer ash 15 fa-515.98 of the tenanted premises by the tenant without consent of the landlord. By the Maharashtra Act No.18 of 1987, sub-section (2) of Section 15 was amended and it was declared that the prohibition against sub- letting will have no effect before the 1st February, 1973. By the same Amendment Act, there was a corresponding amendment made to the definition of the tenant under Section 5(11) by including sub-tenants who have derived title under a tenant before the 1st February, 1973. Thus, the effect of the 1987 Amendment was that a sub-tenant in possession on 1st February, 1973 became the deemed tenant. The case of sub-tenancy made out in the plaint was given up by the first Respondent at the time of recording of evidence. In fact, in the examination-in-chief, the first Respondent did not say that he was paying rent. He merely stated that he was paying a sum of Rs.110/- per month. The first Respondent admittedly could not produce any rent receipt. After recording the evidence, the first Respondent was recalled and even after he was recalled, he has not stated anything about the sub-tenancy. Even in the cross-examination, when he was called upon to produce leave and license/conducting agreement, the first Respondent did not come out with the case of sub-tenancy. Thus, the net result is that the Trial Court could not have recorded a finding that Section 15(2) of the Bombay Rent Act was applicable and the said finding is completely erroneous which is required to be set aside. ash 16 fa-515.98 19. In view of the averments made in the Plaint, the first Respondent cannot contend that he was a licensee in possession. Therefore, the first Respondent cannot claim to be an occupier within the meaning of Sub-Section (2) of Section 25 of the said Act. In the circumstances, the Appeal must succeed and I pass the following order: ORDER : (i) The Appeal succeeds. (ii) The impugned judgment and decree dated 31st March, 1988 is quashed and set aside and the S.C. Suit No.6615 of 1989 is dismissed with costs; (ii) If the first Respondent is otherwise entitled to an alternate accommodation, it will be open for the first Respondent to make appropriate application to the Maharashtra Housing and Area Development Authority in that behalf; (iii) The Appeal is allowed on above terms with no orders as to costs; ash 17 fa-515.98 (iv) The learned counsel appearing for the first Respondent prays for stay of the operation of this judgment and order. (v) For a period of three months from today, the operation and execution of this judgment and order will remain stayed. ( A.S. OKA, J )