Second Appeal No.194 of 2010

4th December, 2014.

Petitioner Counsel: Shri J.R. KIDELAY
Respondent Counsel: Shri P.A. GODE

Cases Cited:
Nababkhan Abdullakhan and Anr. Vs. Jamrubi w/o. Abdullakhan, 1992 Mh.L.J. 260 [Para 8,14]
M. I. Quereshi s/o. Yasin Mohammad Vs. Khatoonbi wd/o. M. A. Qadar and Ors., 2004(4) ALL MR 289=2005 (1) Mh.L.J. 98 [Para 8,14]
Loreal India Pvt. Ltd. Mumbai Vs. Global Earth Properties And Developers Pvt. Ltd., Mumbai and Anr., 2009(5) Mh.L.J. 215 [Para 9]
Bakubhai Keshavlal Shan (deceased) Vs. Shri Babulal Prabhudas Shah & Anr., 2003(1) ALL MR 558 [Para 9]
Bhagwanji Mohandana Chauhan & others Vs. Keshavji Manjibhai Chauhan, 2004(Supp.2) Bom.C.R. 504 [Para 9]
Shri Paulo Godinho Vs. Shri hari Jaivant Sinai Bhangui, 1999(2) ALL MR 541 [Para 9]
C. M. Beena Vs. P. N. Ramchandra Rao, (2004) 3 SCC 595 [Para 9,12]
Balwantsinghji Anand Vs. Bhagwantrao Ganparrao Deshmukh, 1980 Mh.L.J. 459 [Para 14]

JUDGMENT

JUDGMENT :- In this appeal filed under Section 100 of the Code of Civil Procedure, the appellantoriginal defendant has challenged the decree for possession passed in respect of a stall in the premises owned by the respondent-original plaintiff. The second appeal was admitted by framing the following substantial question of law:

Whether the licensee paying license fee would be covered by the term "tenant" as defined in clause 2(5) of the C. P. & Berar Letting of Houses and Rent Control Order 1949 and whether the permission of the Rent Controller would be necessary for evicting such a licensee?

2. During pendency of the second appeal the original plaintiff filed Civil Application No. 825 of 2014 for dismissal of the appeal and for directions to the original defendant to deposit occupation charges. According to the plaintiff after the second appeal was admitted the defendant had stopped paying any amount towards occupation of the suit premises. The defendant has filed his reply opposing the aforesaid application. When said civil application was taken up for consideration, the learned counsel for the parties jointly submitted that the appeal itself would be heard on merits considering the limited nature of controversy. Accordingly, with the consent of learned counsel for the parties the second appeal itself has been taken up for final consideration.

3. The respondent original plaintiff claims to be a public trust that is duly registered under the provisions of Bombay Public Trust Act, 1950. The object of the trust is promotion and propagation of Khadi and Village Industry in the City of Wardha. In the premises owned by it, a stall admeasuring 29 ft. X 17.6 ft. is the subject matter of present proceedings. According to the respondent the appellant had represented to the trust authorities that he was having the knowledge of khadi and village industry and hence was capable of running stalls that were located in the premises of the trust. Accordingly the appellant was permitted to occupy one stall on payment of license fees of Rs. 700/- P.M. for a period of one year. Initially license was executed for the period from 01.04.1997 to 28.02.1998. Thereafter a fresh deed of license was executed for a period from 01.03.1998 to 31.01.1999 and finally for the period from 01.02.1999 to 31.12.1999.

4. According to the respondent it resolved to revoke license of the appellant and after passing resolution in that regard, notice dated 02.12.1999 was issued to the appellant. He was called upon to vacate the stall. The appellant replied to the aforesaid notice on 15.12.1999. As he did not vacate said stall, the respondenttrust filed suit for possession along with damages for wrongful use and occupation.

5. The appellant filed his written statement and took the plea that he had attained a status of a tenant and hence under provisions of C. P. And Berar Letting of Premises and Rent Control Order, 1949 (for short, the Rent Control Order) he could not be evicted without obtaining permission from the Rent Controller.

6. The trial Court after considering the evidence on record came to the conclusion that the respondent had proved that it was entitled for possession of the said stall. It was further held that the appellant was not a tenant of said stall. It, therefore, decreed the suit and directed the appellant to handover possession of the said stall to the respondent.

7. The appeal preferred by the original defendant was also dismissed holding that the appellant was a licensee and that the trust was entitled for possession of the stall after the license was revoked. Said decree is the subject matter of challenge in the present second appeal.

8. In support of the appeal Shri J. R. Kidelay, learned counsel appearing for the appellant submitted that though a licensee deed was executed between the parties, the appellant was in fact a tenant of the said stall and that in absence of any permission from the Rent Controller as required by Clause 13(1) of the Rent Control Order, the appellant could not have been evicted. He relied upon various provisions of the Rent Control Order especially Clauses 2(4A), Clause 2(5), Clause 6 and Clause 10 thereon in support of aforesaid submissions. He further submitted that though in the license it had been stated that license fee was being paid, in effect what was being paid was rent which included electricity charges and hence it was clear that appellant was a tenant of the premises in question. In support of aforesaid submissions, the learned counsel relied on the judgment of learned Single Judge in Nababkhan Abdullakhan and another Vs. Jamrubi w/o Abdullakhan 1992 Maharashtra Law Journal 260 and the decision in M. I. Quereshi s/o Yasin Mohammad Vs. Khatoonbi wd/o M. A. Qadar and others 2005 (1) Maharashtra Law Journal 98 : [2004(4) ALL MR 289]. According to him merely because license fee was being paid, that would not change the nature of occupation of the appellant and in fact the occupation of the appellant was as tenant of the premises in question.

9. On the other hand Shri P. A. Gode, learned counsel appearing for the respondent supported the impugned judgments. He submitted that on a plain reading of the license deed, it was clear that the occupation of the appellant was merely as a licensee. He submitted that a licensee paying license fee was not covered by the definition of the term "tenant" as defined in Clause 2(5) of the Rent Control Order. He submitted that while determining whether the document in question was a lease or license, the intention and surrounding circumstances have to be taken into account. He, therefore, submitted that from the surrounding circumstances it was clear that the trust merely intended to create a license in favour of the appellant. In support of aforesaid submission the learned counsel placed reliance on the following decisions:

1] Loreal India Pvt. Ltd. Mumbai Vs. Global Earth Properties And Developers Pvt. Ltd., Mumbai and another, 2009(5) Maharashtra Law Journal 215;

2] Bakubhai Keshavlal Shan (deceased) Vs. Shri Babulal Prabhudas Shah & Anr. 2003(1) ALL MR 558;

3] Bhagwanji Mohandana Chauhan & others Vs. Keshavji Manjibhai Chauhan, 2004(Supp.2) Bom.C.R. 504;

4] Shri Paulo Godinho Vs. Shri hari Jaivant Sinai Bhangui, 1999(2) ALL MR 541;

5] C. M. Beena Vs. P. N. Ramchandra Rao, (2004) 3 Supreme Court Cases 595.

10. The license deed is the material document on the basis of which the controversy is required to be resolved. Copies of the license deeds were placed on record vide Exhs. 38 to 40. As per aforesaid license deed, the appellant was to pay security deposit of Rs. 2100/- and license fee of Rs. 700/- P.M. The material terms of said license deed are at Sr. No. 2, 5 and 6 which read thus:

"2. The overall control and superintendence of the said stall shall remain vested in the Samiti whose authorised representatives shall at all reasonable hours be entitled to inspect the said stall about its bonafide use and about its state of repairs. The Samiti shall be bound to keep the stall in good repair and remedy defect or leakage with in seven days of the notice given by the licensee to the Samiti.

5. The licensee shall display,exhibit, offer for sale or actually sell only those goods, materials, handicrafts or articles which are produced, manufactured or created in the sector of Khadi and Village industries as approved by the KVIC. In this respect it is expressly agreed that the decision of the Samiti (Inclusive of the person authorised by it in this behalf) shall be conclusive and absolutely binding on the licensee and shall not be subject to dispute or review.

6. The licensee may exhibit advertisements and placards in such parts of the stall or area around it as may be approved by the Samiti."

11. From the aforesaid license deed duly signed by the parties it was agreed that over all control and superintendence of the stall in question would remain vested in the trust and that an authorised representative would be entitled to visit and inspect said stall at all reasonable hours. The appellant was entitled to sell only those goods which were produced and manufactured in the Khadi and Village Industries Sector.

12. According to the appellant his occupation of the aforesaid stall was as a tenant. Though he was paying license fee, as the same was inclusive of electricity charges the amount actually paid was in the nature of rent as is clear from the provisions of Clause 10 of the Rent Control Order. According to the learned counsel for the appellant the stall in his occupation was "premises" as defined by Clause 2(4A) and hence the appellant was a tenant in terms of Clause 2(5) of the Rent Control Order. Aforesaid submission though attractive, the same cannot be accepted. In C. M. Beena and another (supra), it was held by the Supreme Court that the difference between a lease and license has to be determined by finding out the real intention of the parties on the basis of the document in question. In para 8 thereof it has been observed as under:

"Generally speaking, the difference between a "lease" and "licence" is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. One a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (see Associated Hotels of India Ltd. V. R. N. Kapoor AIR 1959 SC 1262)."

As noted above, the deed of license clearly stipulated that the over all control and superintendence of the stall would remain with the trust and its authorised representative was entitled to inspect the same at all reasonable hours. The manner in which the goods were to be displayed and sold was also stipulated. Similarly, the manner in which advertisement and placards were to be exhibited was subject to the approval of the trust. It is thus clear that as per aforesaid stipulations of the licence deed, the appellant was merely a licensee and no lease was created in his favour.

13. Once it is found that the occupation of the appellant was purely as a licensee, the only question that remains to be considered is whether such licensee would be covered by the term "tenant" as defined in Clause 2(5) of the Rent Control Order. As per Clause 2(5), a person by whom or on whose account rent is payable for the premises is a tenant. It cannot be disputed that the appellant is in possession of a stall that is given on license and hence he is in possession of premises as defined by Clause 2(4A)(b) of the Rent Control Order. However, merely because the appellant is occupying the stall which is "premises" under Clause 2(4A)(b) of the Rent Control Order that by itself would not make him a tenant of said premises. The documents on the basis of which he was inducted show that he was a licensee as found herein above. Merely because electrical energy charges are included in the amount of rent as urged by relying upon Clause 10 of the Rent Control Order, that would not change the nature of the appellant's occupation. Under Clause 13(1)(a) of the Rent Control Order, written permission of the Controller is necessary for determining the lease after giving notice to the tenant. Clause 13(1)(a) reads as under:

"Clause 13(1): No landlord shall, except with the written permission of the Controller

(a) give notice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable at his option; or"

Thus, if the lease of a tenant is required to be determined only then written permission of the Controller would be necessary.

The matter can be viewed from another angle. Under Clause 13(1) of the Rent Control Order, written permission of the Rent Controller is necessary before giving a notice determining the lease. After obtaining such written permission, the lease can be determined by issuing notice under Section 106 of the Transfer of Property Act. However, for determining a 'licence', no written permission of the Rent Controller is necessary. The distinction between a lease and a licence is well recognised. As noted above, the possession of the appellant was on the basis of licence deeds at Exhibits 38 to 40 and for determination of said licence, there was no requirement of obtaining the written permission of the Rent Controller.

14. In Nawabkhan Abdullakhan (supra) it was held that a licensee who was not paying rent was not covered by the term "tenant" under Clause 2(5) of the Rent Control Order. After considering the expression "tenant" which means a person on whose account rent was being paid, it was held that such licensee was not a tenant. Similar view has been taken in M. I. Quereshi, [2004(4) ALL MR 289] (supra). Ratio of aforesaid decisions cannot be made applicable to the facts of the present case when it is found that the appellant was a licensee on the basis of deed of license and there was no lease executed in his favour.

In Balwantsinghji Anand Vs. Bhagwantrao Ganparrao Deshmukh 1980 Maharashtra Law Journal 459, while considering nature of occupation it was found that when the licensor had reserved right of entering and visiting the premises in question it was clearly a case of license being given and not of a lease being executed. In the present case as found from the documents at Ex. 38 to 40 as well as the findings recorded by both the Courts, the occupation of the appellant was only a licensee. Hence, it cannot be said that the appellant was entitled to protection under Clause 13(1) of the Rent Control Order. Mere payment of license fee would not make the appellant a "tenant" under Clause 2(5) of the Rent Control Order.

15. In view of aforesaid the substantial question of law as framed is answered by holding that the appellant who was paying license fee was not covered by the term "tenant", as defined by Clause 2(5) of the Rent Control Order. As a necessary corollary, there is no question of seeking permission of the Rent Controller for evicting the appellant.

16. As a consequence of aforesaid discussion, the decree for possession as passed by the trial Court and affirmed by the first appellate Court is maintained. The Second Appeal is accordingly dismissed with no order as to costs. Consequently, pending Civil Applications are also disposed of.

As the appellant is in possession of the aforesaid stall, he is granted time of eight weeks to handover the possession of the same to the respondent.

Appeal dismissed.