KARUNA MANOHARLAL OHRI Vs. VIPINBHAI U SANGHANI

JUDGEMENT

(1.) THIS is a suit for possession, compensation and ancillary reliefs in respect of premises being flat No. 16-B, third floor, "thakur Niwas", 173, Jamshedji Tata Road, Bombay 400 020.

(2.) DECEASED plaintiff Swarup Narayan Khanna was a member of "thakur Niwas" Co-operative Housing Society Ltd. which is a society registered under the Maharashtra Co-operative Societies Act, 1960. "thakur Niwas" is a building owned by the society and the suit flat was allotted to the plaintiff in his capacity as the holder of five shares of the Society. S. N. Khanna was a tax practitioner and used to visit Bombay in connection with the work of his clients. Defendant in 1972 was a law student and a Director of a private concern known as Paramount Automobiles Pvt. Ltd. " On 18th September 1972, S. N. Khanna and defendant reached an agreement the terms whereof were reduced to writing, which writing is at Ex. P-1. In this document, S. N. Khanna is described as the "licensor" and defendant the "licensee" in respect of the suit flat, the duration of the licence to be from 1-10-1972 to 31-8-1973. The monthly compensation of Rs. 650/- was to be paid by the defendant to S. N. Khanna through his authorised agent L. D. Kapoor who has been examined as P. W. 3 in the suit. Ex. P-2 collectively is the correspondence exchanged between S. N. Khanna and defendant the first in point of time being S. N. Khannas letter dated 22-2-1973 and the last being an Advocates reply given on behalf of the defendant on 27-3-1974. S. N. Khanna filed this suit on the 1st day of February 1975.

(3.) S. N. Khanna hereinafter also to be referred to as the "plaintiff" contended that the suit flat was purchased by him for his own use as a practising lawyer and because he desired to settle down in Bombay. Defendant had approached him in August 1972 with the plea that he be allowed to use the suit flat as a temporary shelter. He was studying law and was newly married and would leave the Suit flat as soon as he could arrange to get a flat on ownership basis for himself. Plaintiff made it clear to the defendant that exclusive possession of the suit flat even for a temporary period could not be given to the defendant. All that the plaintiff was prepared to grant was an indulgence to the defendant to use the suit flat jointly with the plaintiff. Defendant agreed to the terms and conditions laid down in Ex. P-1 and that is how he came to share the accommodation with the plaintiff. Plaintiff could not create a licence or a tenancy and Ex. P-1 was neither. A key of the flat was retained by the plaintiff whose furniture, fixtures an fittings inclusive of a telephone continued to be in the flat. Even if the transaction amounted to a licence, it was not a possessory licence. Defendant had violated the conditions of Ex. P-1 by not paying the compensation subsequent to the month of October 1972. The non-payment by itself brought about a cancellation of the licence. The subsequent three months compensation was accepted by plaintiff without prejudice to the revocation/cancellation of the licence which had already taken place. Defendant falsely raised the plea of being a protected licensee and/or a tenant. Assuming that section 15-A of the Bombay Rent Act was applicable to the occupation of defendant, it was plaintiffs contention that the said provision was ultra vires the Constitution as it contravened the plaintiffs fundamental rights under Articles 14, 19 and 31 of the Constitution of India. The said section conferred protection upon a particular class of licensees for no reason whatsoever. This class had been picked upon to be conferred with a right arbitrarily and without there being the slightest rationale therefore. Persons similarly situated such as sub-tenants and paying guests etc. were not given the same protection. Section 15-A of the Bombay Rent Act placed an unreasonable restriction upon plaintiffs right to property. The unpaid compensation had accumulated to Rs. 16,943. 58 ps. As defendant had failed to vacate and deliver vacant possession and pay the compensation, plaintiff sued for possession and recovery of Rs. 16,943. 58 ps. and incidental reliefs.