Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 7528 of 2008 M/s. N.R.Corporation ...Petitioners V/s. Kanayalal Sobhraj Ahuja ...Respondent WITH WRIT PETITION NO. 7529 OF 2008 Thadaram Khaialdas Tolani ...Petitioner v/s. Kanayalal Sobhraj Ahuja ...Respondent WITH WRIT PETITION NO. 7530 OF 2008 Suryakant Gulabbhai Pancmiya through C.A. Pahilaj Tolani ...Petitioner v/s. Kanayalal Sobhbraj Ahuja ...Respondent Mr. D.S.Chandnani i/b. Lexim and Associates for the petitioner. Mr. R.V. Yadav for the respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 P.C. . Heard Counsel for the parties. 2. Having regard to the finding of fact recorded by the two Courts below that what was in possession of the respective petitioners was only an open area which was, however, partitioned by cabins and not a room as such, that finding of fact needs no interference. On that finding, it necessarily follows that the petitioners 2 cannot claim protection under Section 15A of the Bombay Rent Act. For, the requirement under Section 15A is that the person must not only have a subsisting licence as on 1-2-1973 but should be in occupation of premises or any part thereof "which is not less than a room". Both the Courts below have rightly applied this settled legal position to the fact situation of the present case to answer the point in issue. 3. Counsel for the petitioner, however, submits that the definition of premises under Section 5(8) is very wide and possession of any portion of the premises which is separated by cabins will also have to be treated as sufficient compliance to attract Section 15A of the Act. It is not possible to countenance this submission. In that, Section 15A expressly provides that the portion in occupation of licensee should not be less than a room. The real question to be decided for considering the claim under Section 15A, therefore, is whether the portion in occupation can be defined as a room or otherwise. As is found by two Courts below, the petitioners were given open space which was accessible to other tenants and used as common area. The fact that that portion of the premises has been separated by cabins does not make the portion of cabin area a room as such, though part of the premises within the meaning of Section 5(8) of the Act. That is not enough to extend 3 protection under Section 15A to such occupant and/or licensee. That is the test applied by the Courts below which in my view is unexceptionable. 4. Counsel for the petitioners has relied on decision in the case of Mohd. Yusuf Ansari v/s. G.M. Mohd. Yusuf Ansari v/s. G.M. Mohd. Yusuf Ansari v/s. G.M. Sharfuddin Sharfuddin Sharfuddin & ors. reported in 2005 (1) Bombay Case & ors. reported in 2005 (1) Bombay Case & ors. reported in 2005 (1) Bombay Case Reporter Reporter Reporter 373. 373. 373. This decision is of no avail to the petitioners. In that case the issue was relating to unlawful sub-letting as a ground for eviction. Indeed, in that case what was sub-let was only front portion of the suit premises. Relying on this fact, the petitioners would contend that the portion in their occupation which is separated by cabin was sufficient to extend protection under Section 15A of the Act. As aforesaid, this decision cannot be pressed into service as the Court was not called upon to consider the efficacy of Section 15A of the Act which expressly requires something more than possession of portion of premises. In that, the portion in occupation of the licensee should not be less than a room. 5. Counsel for the petitioners would then contend that the petitioners were direct tenants of landlord. This argument is without any substance. The question of becoming direct tenant would arise only by virtue of right under Section 14 and 15 of the Act. It is not the 4 case of the petitioners that tenancy rights of the head tenant have been terminated or that possession of the premises has been surrendered by the head tenant to the landlord. Besides, it is not the case of the petitioners that petitioners are protected by virtue of Section 15(2) of the Old Act. 6. Taking any view of the matter, therefore, no fault can be found with the conclusion reached by the two Courts below. Hence, dismissed. 7. At this stage Counsel for the petitioners submits that petitioners may consider going in appeal against the present order for which some protection be granted. There is no difficulty in accepting this request. 8. It is ordered that decree shall not be given effect to till 31st March, 2009 on condition that the petitioners and all adult persons associated with the business of the petitioners conducted from the disputed premises shall file usual undertaking in this Court on or before 27th February, 2009 failing which it will be open to the respondents to proceed with the execution of the decree. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]