When the licensee entered into fresh agreement of licence, that amounts to waiver or not ? or
Whether in that case, i.e. in the case of waiver the licensee can claim protection under Section 15A of the Bombay Rent Act. ?
The unreported judgment of this Court in Writ Petition No. 2280 of 1993 squarely applies to the facts of the present case.
9. It was also contended by the Counsel for the respondent that the subsequent leave and licence agreement came to be executed by the respondent at the instance of the applicant. Whatever may be the reason, the applicant is the public limited company just like Bank. It has got, either its own legal cell or aid and assistance of extremely competent legal brain. Even then, right from 1967 to 1996 they went on entering into leave and licence agreements in spite of the provisions of Section 15A of the Bombay Rent Act. Therefore, the judgment in Writ Petition No. 2280 of 1993 decides the Issue. In such a situation and when it is held that it is the waiver, then the Respondent cannot claim any right. Consequently, the judgment of the Trial Court is perverse.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 40 of 2000
Decided On: 12.09.2003
Alban Joseph Gonsalves Vs. Rallis India Ltd.
Hon'ble Judges/Coram:
D.G. Deshpande, J.
Citation: 2004(1) ALLMR702
1. Heard Advocate for the petitioner, who Is the original owner of the property and, the Advocate for the respondent, who was the licensee. This Revision is directed against the order of the Competent Authority established under Section 31 of the Bombay Rents, Hotel and Lodging House Rates Control Act, (hereinafter referred to as "the Bombay Rent Act").
2. The petitioner, who is the owner of the property, has given his property, situated at Plot No. 68 of Town Planning Scheme No. Ill, Bandra, Mumbai admeasuring 1330 sq. ft. and so, on leave and licence basis under the written agreement first time on 15.1.1967 and from time to time the agreement of leave and licence came to be continued followed by subsequent written agreement. For the first time in June, 1996 the respondent started asserting that they are the protected tenant and they would not enter into fresh agreement of leave and licence. Therefore, at the Instance of petitioner, an application came to be moved under Section 13A of the Bombay Rent Act, 1947 before the Competent Authority for eviction on the basis of written agreement of leave and licence.
3. The respondents raise a plea of being protected tenant under Section 15A of the Act of 1947. His contention was upheld by the Competent Authority and, therefore, this Revision.
4. I heard learned Counsel for the petitioner and respondent at length. The Counsel for the petitioner contended that right from 1967 till the date of filing of application before Competent Authority i.e. till 1996, the respondent was entering into agreements of leave and licence with the petitioner and all those agreements were in writing, and therefore, protection under Section 15A of the Bombay Rent Act is not available to the respondent, on the basis of interpretation of the relevant provisions by this Court in its earlier decision. The Advocate for the petitioner has relied upon unreported judgment of this Court in Writ Petition No. 2280 of 1993 in support of his contention that as soon as a licensee enters into a fresh agreement of leave and licence, there is deemed surrender and implied surrender of the first licence, and since the respondent has entered into different agreements with the petitioner, each time the respondent entered into a fresh agreement, his right as licensee came to be surrendered. In the aforesaid unreported judgment, it was the suit for termination of licence and eviction of the licensee. The Trial Court came to the conclusion that the licence has been duly terminated and ordered the petitioner-bank to hand over possession to the respondent landlord. The petitioner-bank filed appeal to the Division Bench of the Small Causes Court which came to be dismissed, and therefore, the matter was moved before this Court in writ petition. The contention of the bank was that the bank was in possession of the premises from 1st February, 1973 and, therefore, the bank had become sub-tenant of the respondent landlord. Other contentions were raised, but they are not relevant for the purpose of the matter at hand. This Court found that the contention of the bank that it becomes subtenant could not be accepted in view of the fact that the bank on its own drafted a (new) leave and licence agreement in the year 1981. The bank is a nationalized bank and has a legal cell of its own and it was the Legal Adviser of the bank who drafted the leave and licence agreement in the year 1981. This fact alone is sufficient to establish that there was Implied surrender of the first licence of 1969. The Statute, therefore, will not come to the help of the bank which surrendered its rights and entered into a fresh leave and licence agreement.
5. Counsel for the appellant also relied upon the judgment of this Court in Chandubhai Naraindas Bhatia v. Navjivan Co op. Housing Society Ltd. and Ors. 1997 V.L.J. 196. There also the Counsel for the appellant had contended that there was no surrender. This Court has observed as under :-
In my judgment in view of the decision of the Apex Court and this Court as referred to above the submission of Mr. Kriplani cannot be accepted. Even though there was no actual delivery of possession by late Smt. Sitabai, on facts both the Courts have rightly come to the conclusion that there was surrender and the said surrender is valid and legal surrender.
6. Then there is another judgment of the Supreme Court relied upon by the Advocate for the petitioner Martin & Harris Ltd. v. VIth Additional Distt. Judge 1998 R.C.R. 1. The Supreme Court had held thus :-
On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration.
Further in para 13, it is held as:
this type of protection to the tenant would naturally be personal to him and could be waived.
It is further held in the said judgment thus :-
a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest.
7. Then there are judgments of this Court relied upon by the Counsel for the appellant; Ramesh Ramrao Hate v. Parvez B. Bhesania MANU/MH/0462/1996 : (1996)98BOMLR784 . Sails India v. Rita M. Rupani MANU/MH/0044/1997 : AIR1997Bom247 about conclusive nature of the leave and licence agreement as is defined in Section 13A2(3)(b) of the Bombay Rent Act. There cannot be any dispute that the legislative provision is absolutely clear that is the leave and licence agreement is conclusive proof of facts contained therein, meaning thereby that no party can be permitted to adduce evidence to contradict the said document.
8. As against this, the Counsel for the respondent relied upon the judgment of the Supreme Court Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. MANU/SC/0286/1990 : [1990]1SCR862 in which judgment the Court has considered the provisions of Section 15A of the Rent Act. However, that case will have to be distinguished on the facts and the question involved. In that case before the Supreme Court the question was -
Can a licensee occupying a flat in a tenant co-partnership society be evicted there from under Sub-section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960, notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 or whether such proceedings would be governed by Section 28 of the Rent Act ?
That is the question which arises for the determination before the Supreme Court in the context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society.
It will be clear that the facts and the background in which the Supreme Court considered Section 15A of the Bombay Rent Act are totally different. The question that is involved in the present case is;
When the licensee entered into fresh agreement of licence, that amounts to waiver or not ? or
Whether in that case, i.e. in the case of waiver the licensee can claim protection under Section 15A of the Bombay Rent Act. ?
The unreported judgment of this Court in Writ Petition No. 2280 of 1993 squarely applies to the facts of the present case.
9. It was also contended by the Counsel for the respondent that the subsequent leave and licence agreement came to be executed by the respondent at the instance of the applicant. Whatever may be the reason, the applicant is the public limited company just like Bank. It has got, either its own legal cell or aid and assistance of extremely competent legal brain. Even then, right from 1967 to 1996 they went on entering into leave and licence agreements in spite of the provisions of Section 15A of the Bombay Rent Act. Therefore, the judgment in Writ Petition No. 2280 of 1993 decides the Issue. In such a situation and when it is held that it is the waiver, then the Respondent cannot claim any right. Consequently, the judgment of the Trial Court is perverse. It has not taken into consideration the important aspect. It is set aside. The claim of the applicant is allowed in terms of prayers therein with costs through out.
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