KANTILAL VED Vs. VIJAYSINGH GORDHANDAS

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India filed by the original respondent challenging the judgment delivered by the Appellate Bench of the Small Causes Court, Bombay affirming the judgment given by the trial Judge holding that the petitioner is not a tenant but a licensee of Room No. 20 in building known as Dhanji Mulji Bhatia Niwas situated at Kalbadevi, Bombay-

(2.) One Haridas Dhanji Mulji, a Halat Bhatia by caste, had executed a deed on 16th August, 1923 by which he created a trust known as "Dhanji Mulji Bhatia Trust". He transferred his building known as "Dhanji Mulji Bhatia Niwas" to the trustees for being used for the purposes of the trust. One of the conditions of this trust is that the trustees shall always permit or allow the trust property, viz. the said Dhanji Mulji Bhatia Niwas to be used and occupied as residence by poor and indigent members of the Bhatia community either free of any payment or subject to the payment by them of such nominal fees and the performance by them of such terms and conditions and rules regulations as the trustees may in their absolute discretion from time to time settle, direct, approve of or think fit to impose. It is also provided in that instrument that the aggregate nominal fees charged to the occupant of the trust premises shall not in any year as far as possible exceed the total amount of ground rent and municipal and other taxes and outgoings, insurance premia and other expenses not being expenses for repairs and for depreciation for maintaining the trust premises. The said deed further provides that the trustees shall have power to allow ground floor or any part thereof to be utilised for any charitable object or objects other than as a residence for the poor and indigent members of Bhatia Community upon the same or similar terms and conditions. It is further provided in the deed that in the event it is found impossible or impracticable to use the trust premises or a major part thereof for the objects mentioned in the deed, then in such circumstances the trustees shall let out the trust premises or such part or parts thereof as they may think fit or expedient and shall out of the income of the trust premises pay all taxes, ground rent and the insurance premium and all other charges and outgoings payable in respect of the trust premises and all the proper costs, charges and expenses of and incidental to the administration and management of the trust premises and subject to the payments aforesaid the trustees shall apply the net income for advancement of education amongst Bhatias. It is further provided under the said deed that the trustees shall pay and defray all the costs and expenses of maintaining, repairing and keeping in good order the trust premises out of the income of dividends and interest of the securities transferred to the trustees. Clause 6 of the trust deed provides :

(3.) It was the case of the respondents that the trust premises had been given to the poor and indigent Bhatias on terms mentioned in the trust deed. The petitioners father Karsandas Bhanji Ved applied for and got room No. 20 on the 2nd Floor in 1942 as a poor and indigent Bhatia on a monthly licence fee of Rs. 2/-. This Karandas Ved expired in 1946 and the petitioner is now occupying such room after the death of his father on the same terms and conditions, but the fee has been increased from time to time and it is now Rs. 6.50 per month. The respondents gave a notice on 28th July, 1969 revoking the licence fee. By this notice he was also asked to pay Rs. 214.50 being the arrears of licence fees. It was also alleged in that notice that the petitioner was causing nuisance to the neighbouring occupants. The petitioner replied to the notice on 9th August, 1969 denying the respondents claim. He stated that he was not a licensee but was a tenant. It was his case that he was protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Act"). He also enclosed a cheque for Rs. 214.50 for the arrears of licence fee. The cheque was returned by the respondents in June, 1970. As the petitioner did not vacate the premises, the respondents filed an Ejectment Application in November, 1971 alleging that the petitioner was a licensee whose licence has been revoked and that he had no right to occupy the room. The petitioner denied the allegations of the respondents. He claimed that he was a tenant and, therefore, was protected under the Bombay Rent Act. A preliminary issue :