Karnataka High Court
R. Ramachandra Bhatta vs Sri Srimath Srirangam Srimath Andavar ... on 7 June, 1994
Equivalent citations: AIR1995KANT24, ILR1994KAR1632, 1995(1)KARLJ616, AIR 1995 KARNATAKA 24, (1995) 1 RENCJ 631, (1995) 1 KANT LJ 616, (1994) 2 RENCR 341, (1994) 3 CURCC 26
ORDER
1. The Revision-Petitioner being aggrieved by the order dated 10-9-1992 passed by the Additional Small Causes Judge, Bangalore, in H.R.C., No. 1469 of 1989, directing the petitioner, to vacate the suit premises within three months from the date of the said order, has approached this Court in this revision petition challenging its legality and correctness, on more than one ground.
2. I have heard learned counsel on both sides.
3. Before proceeding to consider the merits of the case, it is necessary to consider the application (I.A, No. 1) for condonation of delay of six days in filing this revision petition
4. This application has been'opposed by the respondent by filing statement of objections.
5. Sri U.L.' Narayana Rao, learned senior counsel appearing for the revision-petitioner, brought to my notice the affidavit sworn to by the petitioner in support of the application. It is stated therein that against theorder staying further proceedings in H.R.C. No. 1469 of 1989, the respondent, had filed C.R.P. No. 2620 of 1991 before this Court and this Court by its order dated 27-1-1992 allowed the petition and set aside the order impugned therein. Thereafter, the proceedings in H.R.C. No. 1469 of 1989 were proceeded with. The case of the petitioner in this behalf is that this Court disposed of C.R.P. No. 2620 of 1991 without notice to him and thereafter the Court below also without notice to him proceeded with the case (stayed by it) and then disposed of it by the order impugned herein. Therefore, his case is that he was not aware of the disposal of the revision petition by this Court as also H.R.C. petition by the trial Court. He came to know of them only when the Ameen of the Court came to execute the warrant and immediately thereafter he took steps to obtain certified copy of the order under revision and then filed this petition and by that time there was a delay of six days, which is bona fide and not intentional. In the circumstances, Sri Narayana Rao submitted that this was a fit case in which the delay of six days may be condoned.
6. Sri B. S. Keshava Iyengar, learned counse! for the respondent-landlord, however, argued that ignorance of the disposal of the cases referred to above was no excuse, inasmuch as the petitioner himself having approached the Civil Court in the suit referred to above and put in appearance in H.R.C. No. 1469/89 wherein he got the proceedings stayed by filing an application, should have been diligent to know "the developments of the cases and therefore it was not a fit case in which delay could be condoned. He prayed for rejecting the application and consequently the revision petition as barred by time.
7. I have perused the objections to I. A. No. I filed by the respondent. It is nowhere stated therein that the averments made In I. A. No. 1 arc false and concocted and the knowledge of disposal of the Civil Revision Petition by this Court and the H.R.C. petition culminating in the order under revision is attributable to the petitioner. No material has been produced to disprove the averments made in the application (LA. No. I). On the other hand, there is sufficient material to show that the civil revision petition as also the H.R.C. proceedings were disposed of in the absence of the petitioner and he had no opportunity to participate in the enquiry. Therefore, 1 am of the opinion that the petitioner has been able to show the reasonable cause for the delay. Accepting the same, 1 allow LA. No. 1 and condone the delay of six days in filing this revision petition. Office is directed to register the petition.
8. Coming to the merits of the case, it is better to state brief facts of the case. They are: The petitioner R. Ramachandra Bhatta was appointed Archak to perform poojas and scvas to the deities in the temple situated in the other portion of the premises belonging to the respondent-Math called Sri Srimath Srirangatn Srimath Andavar Ashram in 7th Main IInd Block Jayanagar, Bangalore-11. He was provided rent free quarters to remain in occupation so as to enable him to perform pooja in the temple regularly. As the suit premises and other adjoining premises were in dilapidated condition, they were demolished and reconstructed in the year 1986 and the suit premises was given to the petitioner to be there free of rent. The occupation by the petitioner of the suit premises is conterminous with his services in the temple as he was only an Archak there performing poojas daily. It is statded that on the complaints of the devotees of the temple, the services of the petitioner were terminated with effect from 1-12-1988 by the Secretary of the Math and thereafter he was given a notice to vacate the premises and another Archak was appointed in place of the petitioner and he has been now doing poojas of the temple, coming from J.P. Nagar far away from the temple. Questioning his termination from Archakship, the petitioner filed a suit in O.S. No. 2511 of 1989 on the file of the Civil Judge, Bangalore, against the respondent for permanent injunction restraining the latter from interfering with his possession of the suit premises. The application filed by him for an ad-interim order of temporary injunction was rejected on th'e undertaking by the respondent that the petitioner would not be evicted without recourse to legal proceedings.
9. Subsequently, the respondent initiated . eviction proceedings against the petitioner in H.R.C. No. 1469 of 1989 under Section 21(1)(h) and (g) of the Karnataka Rent Control Act, 1961 (the Act for short). After notice the petitioner put in appearance in the case and filed objections to it. On 24-1-1991 P.W. 1, Secretary of the respondent-Math, was examined and Exs. PI to PI I were marked and the case was posted to 7-2-1991 for his cross-examination. 'On 7-2-1991 the petitioner filed an application for staying further proceedings in the case, pending disposal of his application for amendment filed in the suit. Accordingly, on 12-3-1991 the Court stayed further proceedings. As against the order spaying further proceedings of eviction proceedings, the respondent had filed Civil Revision Petition No. 2620 of 1991 before this Court and this Court by its order dated 27-1-1991 allowed the petition and set aside the order impugned therein. Thereafter, the trial Court proceeded with the eviction proceedings and, by its order dated 10-9-1992, allowed the petition and directed eviction of the petitioner from suit premises within three months from the date of the order. Hence this revision petition.
10. Sri Narayana Rao argued mainly on the following three points:--
(1) The order under revision cannot be sustained as the trial Court committed material irregularity in having not considered the specific plea taken on behalf of the petitioner that there was no relationship of landlord and tenant between the petitioner and respondent, that the petitioner was not paying any rent quantifying by way of money to the respondent in respect of the suit premises which was allowed to be occupied by him for the services he was rendering as an Archak of the temple and not as a tenant thereof and that in view of the law laid down by the Supreme Court that in a matter of this kind, in the absence of payment of any rent quantified in terms of money, a person enjoying the premises belonging to the landlord in lieu of the services being rendered by him cannot be said to be a tenant, the petitioner herein also being in similar position cannot be said to be the tenant of the suit premises, therefore, the provisions of the Act have no application to this case. However, without application of mind to the facts of the case, the trial Court held that the petitioner was a tenant of the suit premises, that there was a relationship of landlord and tenant and that the respondent was able to prove bona fide and reasonable requirement of the suit premises for occupation. This being incorrect apparent on the face of the records and in law, the impugned order directing eviction of the petitioner from the suit premises on the above findings, cannot be sustained in law and hence the same has to be set aside. Sri Narayana Rao cited two decisions', of the Supreme Court in support of his arguments. I will refer to (sic) later.
11. Sri Keshava Iyengar, however, argued in support of the order under revision. He submitted that even though no rent in terms of money had been fixed and paid by the petitioner in possession of the suit premises, yet regard being had to the services of the petitioner as an Archak of the temple, there is relationship of landlord and tenant between the petitioner and the respondent, inasmuch as the trial Court, fact finding authority, found him as such and at the request of the petitioner alone, the trial Court granted him three months' time to vacate the premises. In that view of the matter, the trial Court was right in passing the order under revision and hence it cannot be interfered with.
12. On the above pleadings and the submissions made on both sides, the point that arises for my consideration in this revision petition is whether the trial Court was justified in holding that there was a relationship of the landlord and tenant between the petitioner and the respondent and hence the provisions of the Act were attracted.
13. My answer to the question is emphatic 'No', for the foll6wing reasons:--
From the pleading in the eviction proceedings in the nature of the evidence let in through P.W. 1, Secretary of .the Math, and the documentary evidence Ex. P.1 to P. 11, it is an admitted fact that the suit premsies was given to the petitioner free of rent i.e., no rent whatever was collected from him. P.W. 1 has stated on oath that the petitioner having been appointed as an Archak of temple was given rent free accommodation so as to enable him to do regular poojas and sevas to the deities of the temple. That means, no rent whatsoever quantifiable in terms of money was fixed and paid by the petitioner in respect of the suit premises and he was allowed to be in occupation of it without rent as long as he continued as an Archak of the temple. The learned counsel for the respondent also does not dispute this fact. Therefore, let me see whether the provisions of the Act are made applicable to the facts of this case.
14. The preamble of the Act reads :
"An Act to provide for the control of rents and evictions, for the leasing of buildings, to control rates of hotels and lodging houses and for certain other matters in the State of Karnataka.
Whereas it is expedient to provide for the control of rents and eviction, for the leasing of buildings, to control rates of hotels and lodging houses and for certain other matters."
The words ,'rents and evictions' are very pertinent and therefore we will have to see whether, in the absence of rent fixed by the landlord and paid by the person in occupation, provisions of the Act are attracted for the purpose of eviction.
15. The word 'rent' is not defined under the Act. However, the words 'fair rent' are defined in clause (f) of Section 3 of the Act as-
" 'fair rent' means the fair rent fixed under Section 14 and includes the fair rent or standard rent fixed under any Act repealed by Section 62;"
Section 3(r) defines "tenant" as follows :-
" 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority."
16. The specific contention taken by the petitioner before the trial Court and this Court is that no rent whatever was fixed to the suit premises by the respondent and he never paid any rent to it during his occupation as it js a rent free accommodation and that therefore he cannot be called 'tenant' of the puit premises, in view of the above provisions. Therefore, in the absence of relationship of the landlord and tenant between the petitioner and the respondent, the provisions of the Act have no application to the present case.
17. The Supreme Court had the occasion to deal with this question in Dr. Rikhy H.S. v. New Delhi, Municipal Committee, , and held:
"Tenant means any person by whom or on whose account the rent is payable for a premises and includes the surviving spouse of any son or daughter or father or mother of a deceasaed tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.....The word tenant does not include the word liccncee. In order to call a person a tenant there should exist in the first place the relationship of landlord and tenant. Mere receipt of rent by the landlord does not make the person from whom the rent is received a tenant. The rent need not be paid by the tenant himself. It could be paid by any person on his behalf."
18. Admittedly, in the instant case, no rent has been fixed and paid either by the petitioner as tenant or by anybody on his behalf to the suit premises. The petitioner was permitted to reside in the suit premises free of rent in lieu of his services as an Archak of the temple with the understanding that he could remain there as long as he continued as the Archak of the temple.
19. In a subsequent decision in B. M. Lall, (dead) by his L.Rs. v. M/s. Dunlop Rubbeji Co. (India) Ltd., , the Supreme Court had an occasion to consider the distinction between lease and license arising out of W.B. Premises Tenancy Act. It' held in paragraphs 4 and 5 as follows:--
"A lease is the transfer of a right to enjoy the premises, whereas a license is a privilege to do something on the premises which other wise would be unlawful. If the agreement is in writing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease, if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not conclusive, though it is a very important indication in favour of tenancy. If a servant is given a personal privilege to stay in a house for the greater convenience, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money, but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the less a tenant because he is also a servant."
20. In this context, we will have to see whether there was any such agreement in writing between the parties in the instant case. PW 1, Secretary of the Math, has nowhere stated in his evidence in the eviction proceedings that there was such an agreement in writing between him and the petitioner nor has he produced anything in that behalf. So, it was only an oral agreement on which the petitioner was permitted to occupy the premises for the services he was rendering as an Archak of the temple. Now we have to consider whether such an agreement was a lease or a licence. The pleadings undoubtedly establish that by virtue of the oral agreement, the landlord permitted the petitioner to occupy the suit premises free of rent for his services as an Archak of the temple and that; no rent whatever was fixed and paid by him for the suit premises. It is only a privilege:conferred on the petitioner by the landlord to: enjoy the suit premises as long as he continued' as an Archak performing poojas in the temple.
21. The question whether a transaction was.a lease or a.licence was answered by the English Courts long back, in Errington v. Errington and Woods, (1952) 1 KB 290 (298), wherein it has been held that the test of exclusive possession is not conclusive and this has been followed by the Supreme Court in Associated Hotels of India Ltd. v. R. N. Kapoor, , further holding though it is a very important indication in favour of tenancy".
22. As held in Nippon Menkwa Kalmshiki v. F. Portlock, AIR 1922 Bom 70 by the Bombay High Court, a service occupation is a particular kind of licence whereby a servant is required to live in the premises for the better performance of his duties. Formerly, the occupation of the servant was regarded as a tenancy unless it was a service occupation.
23. In Torbett v. Faulkner, (1952) 2 TLR 659 at p. 660, Denning, L.J., said :
"a service occupation is, in truth, only one form of license. It is a particular kind of license whereby a servant is required to live in the house in order to better to do his work. But it is now settled that there are other kinds of licence which a servant may have. A servant may in some circumstances be a licensee even though he is not required to live in the house, but is only permitted to do so because of its convenience for his work."
24. Following the above authorities, the Supreme Court in B. .M. Lall's case (supra) Held in paragraph 4 as follows : --
"The question is whether the occupier under this agreement is a tenant or a licensee. The distinction between a lease and a licence is well known. Section 105 of the Transfer of Property Act defines a lease. Section 52 of the Indian Easements Act defines a licence. A lease is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. If the agreement is in writing it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant is not decisive."
25. The Supreme Court in a subsequent judgment in Dipak Banerjee v. Smt. Lilabati Chakraborty, , held if paragraph 6 as follows:--
"In order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent."
Proceeding further, it held in paragraphs 10 and 12:
".....It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub-tenancy. This frustrates and defeats the purpose of the Rent Act."
To say so, it relied on the decision of the Court, of appeal in England in Barnes v Barratt (1970) 2 AH ER 483, the extract of which' contained in paragraph 10 in Dipak Banerjee's case is to the effect:
".....The Rent Act, 1956 cannot be fitted into a position where the services can be rendered in exchange of the right of occupation. This question arose in England in the case of Barnes v Barratt, (1970) 2 All ER 483 There the defendants occupied part of the house which was let to C. The defendants has exclusive use of three rooms and a kitchen while C had similar use of two rooms. The bathroom was shared. In return for their use of the abovementioned accommodation the defendants cleaned part of the house, cooked for him and paid electricity, gas and fuel bills for the whole of the house. On more than one occasion C refused to accept any payment of rent. The arrangement continued from 1951 until C's death in February, 1969. The interests of C were then surrendered to the plaintiffs who were the landlords. The plaintiffs claimed possession of the whole house. The county court Judge ruled that the defendants were tenants within the protection of the Rent Acts and were not licensees, since the services rendered by defendants, according to the county court Judge, constituted Jrent. The Court of appeal in England held that the defendants were granted personal privilege of occupation and not tenancy. It was further held that even if there was a tenancy, the Rent Acts did not apply to it, because there was no agreed monetary quantification of rent nor any agreed method of quantification....."
26. Sri U. L. Narayana Rao strongly relied on the above authorities in support of his contention that the petitioner having been appointed as an Archak to do poojas in the temple, was conferred personal privilege of being in occupation of the suit premises without payment of rent quantifiable in terms of money much less any agreed method of quantification of rent. Therefore, he cannot be called a tenant of the respondent and hence question of existence of relationship of landlord and tenant between them does not arise and consequently the provisions of the Act have no application to the present case. The bum and substance of what has been discussed above, being that the petitioner was permitted to occupy the premises in question in lieu of his services to the temple as an Archak for which he never paid any rent in terms of money, and that it was nothing but a personal privilege conferred on him to be so for better performance of his duties in the premises where the temple is situated, accepting the contention of Sri Narayana Rao, I hold that the court below was justified in holding that there was a relationship of landlord and tenant between the petitioner and the respondent and accordingly directing the petitioner to vacate the premises within three months from the date of order on the ground under Section 21(1)(h) and (g) of the Act. Hence, the order under revision made by it cannot be sustainedand the same is liable tp. be set aside.
27. In the result and for the reasons stated above, this revision petition is allowed and the order under revision is set aside.
28. At this stage, Sri Keshava lyengar, learned counsel for the respondent-Math, brought to my notice that the respondent is a charitable institution, that the services of the petitioner having been terminated, another Archak has been appointed who has been now performing poojas in the temple and who is coming from a place 5-6 kms., away from the temple for want of accommodation in the temple premises and that therefore the suit filed by the petitioner may be directed to be disposed of early. Sri Narayana Rao, learned senior counsel for the petitioner, also brought to my notice that steps have been taken in the suit to effect certain amendment seeking to challenge the termination of the services of the petitioner as an Archak of the temple. In the circumstances, it is directed that the suit in O.S; No. 2511 of 1989 pending on the file of the Civil Judge, Bangalore City, shall be heard and disposed of within a period of four months from the date of receipt of this order.
29. A copy of this order may be sent to the trial Court immediately. Ordered accordingly.
30. Petition allowed.