PRAVINCHANDRA HEMCHAND Vs. CHOKSEY AMBALAL AMICHAND

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order passed by the Division Bench of Small Causes Court at Bombay dated 23rd April, 1986 in Appeal No. 180 of 1985. That appeal was filed by the respondents challenging the judgment and decree dated 16th February, 1985 passed by the Single Judge of the Small Causes Court at Bombay in R. A. E. Suit No. 2108 of 1973. That suit was filed by the petitioners claiming therein that he is owner of the building known as Prakash Bhuvan situated at 23/25, 2nd Agiary Lane, Behind Bank of India Building, Bombay-2 and that defendant No. 1 Choksey Ambalal Amichand was a tenant of a shop on the ground floor of that building. It was alleged that the defendant No. 1 tenant created sub-tenancy in favour of defendant No. 2--Damodar Soni. A decree of possession was therefore sought against the tenant on the ground of sub-letting. There were other grounds also urged. However, it appears that the Trial Court found that the premises were unlawful sublet by the defendant No. 1 to defendant No. 2. Therefore, a decree of eviction was passed against the defendants.

(2.) IN the appeal filed by the defendants, however, the Appellate Court, reversed that finding, allowed the appeal, set aside the judgment and decree passed by the Trial Court and dismissed the suit filed by the petitioner. In this petition therefore, filed by the landlord, it is the order of the Appellate Court which is under challenge. Shri Abhyankar learned Counsel appearing for the petitioner, submitted that the Appellate Court has found as a fact that the tenant defendant No. 1 temporarily accommodated the defendant No. 3 in a portion of the premises in appeal without any consideration or charge. In the submission of Shri Abhyankar therefore, this amounts to creation of a licence by the tenant in favour of the defendant No. 3 after 1st February 1973 and therefore in the submission of Shri Abhyankar, the Appellate Court was not right in holding that no licence within the meaning of Bombay Rent Act, was created in favour of the defendant No. 3 by the tenant and therefore, the landlord is not entitled to a decree of eviction under section 13 (1) (e) of the Act.

(3.) NOW, for appreciating this submission made by Shri Abhyankar, it is necessary to refer to the provisions of section 13 (1) (e) of the Act. It lays down that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has, after 1st February 1973, unlawfully given on licence the whole or part of the premises or assigned or transferred in any manner his interest therein. It is thus clear that creation of a licence in the suit premises or a part of it after 1st February 1973, entitles the landlord to a decree of eviction against the tenant. The term used in section 13 (1) (e) is "licence". Though the term licence is not defined by the Act, the term licensee is defined and it is further laid down that the term "licence" is to be construed accordingly. Perusal of the definition of the term "licensee" appearing in section 5 (4-A) of the Act is that the term "license" means a person who is in occupation of the premises under a subsisting licence given for a licence fee or charge. It is thus clear that for constituting a licence within the meaning of Bombay Rent Act, charging of licence fee or charge is necessary. In the present case, as the Appellate Court has found that no licence fee or charge has been taken by the tenant from defendant No. 3, it appears that the arrangement between the tenant and the defendant No. 3 would not amount to a licence within the meaning of the Act. Shri Abhyankar referred to provisions of section 15-A of the Act and submitted that a licensee who is in possession of the premises pursuant to a licence created before 1st February 1973, is deemed to become a tenant. In the submission of Shri Abhyankar therefore, there is a complete prohibition on creation of licences because of the provisions of section 15-A and 15 of the Act. In the submission of Shri Abhyankar therefore, the arrangement between the tenant and the defendant No. 3 as found by the Appellate Court would amount to a licence. He submits that otherwise a tenant can part with possession of the premises or a part of it in favour of a complete stranger and he will not be liable for a decree of eviction only because he is not charging a licence fee. The submission made by Shri Abhyankar appears to be well founded, however, it appears to be the scheme of the Act that when a tenant parts with possession of a part of the premises without charging licence fee, it does not amount to a licence within the meaning of the Act. So far as the Act is concerned, in order to entitle a landlord to a decree under section 13 (1) (e), it must be shown that the licence within the meaning of the Act has been created. If any fee or charge is not being taken by the tenant from the other person, then the arrangement does not amount to a licence within the meaning of the Act and therefore, the tenant could not become liable for a decree of eviction. It is true that if a tenant hands over possession or introduces even a total stranger in his premises but does not take any fee, then the arrangement does not amount to a licence and the landlord is not entitled for decree of eviction. It may sound harsh on a landlord but, in that case, in my opinion, remedy lies with the Legislature and not with the Court. In this view of the matter therefore, in my opinion, no interference is called for with the order passed by the Appellate Court.