Bombay High Court
Mazda Theaters Pvt. Ltd. vs Sharad Laxman Galvankar, Since ... on 28 July, 2000
Equivalent citations: (2000)102BOMLR10
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. By this common judgment, I shall dispose of these two writ petitions since they arise out of the same order and involve the identical question.
2. The only argument canvassed by the learned Counsel for the petitioners appearing in both the writ petitions is that the Appeal Court seriously erred in not holding cabins in the room as less than the room within the meaning of Section 15A of Bombay Rents, 'Hotel Lodging House Rates (Control) Act, 1947.
3. The controversy arises in the facts stated thus:
The petitioners v. Mazda Theaters Pvt. Ltd. are the owners of the property known as "Naaz Building" situate at Lamington Road, Bombay. A room in the said building was let out to Mrs. Sukurma Rani, who was monthly tenant of the petitioners. The said tenant - Mrs. Sukurma Rani, according to the petitioners, was in arrears of rent for more than 6 months and was a defaulter. The petitioners terminated the tenancy of the said tenant the then filed an Ejectment suit being R.A.E. Suit No. 458/1873 of 1978 for possession of the suit room on the ground of default in payment of rent amongst others. The said tenant did not appear and accordingly ex parte decree came to be passed in favour of the petitioners on 9.2.1979. The execution of the said decree was levied by the petitioners in which warrant of possession was issued. The warrant of possession was obstructed by various persons including the respondents in these writ petitions. The petitioners took out Obstructionist Notice No. 171 of 1979. The said Obstructionist notice was contested by the Obstructionists inter alia on the ground that they were not bound by the decree since they were protected licensees and deemed tenants in respect of the cabins in their occupation. The obstructionists set up the case that the original tenant inducted them much before 1.2.1973 as licensees on the basis of leave and licence agreements and the said leave and licence agreements were subsisting on 1.2.1973. The parties led evidence and the Judge, Small Causes Court vide its judgment and order dated 6.2.1984 made the obstructionist notice absolute and directed obstructionists to remove themselves from the suit premises on or before 30.4.1984 failing which it was directed that warrant of possession be executed against them. Aggrieved by the judgment and order passed by the Judge, Small Causes Court, the obstructionists preferred appeals before the two Judge Bench of the Small Causes Court. The Appellate Bench vide their judgment and order dated 15.10.1987 allowed the appeals, set aside the judgment and order passed by the trial Judge of Small Causes Court and consequently discharged the obstructionist notice.
4. Before me there is no challenge to the findings that the concerned obstructionists came in possession in their respective cabins before 1.2.1973 on the basis of leave and licence agreements granted by original tenant and that on 1.2.1973 such leave and licence agreements were subsisting. The only contention raised by the learned Counsel for the petitioners is that each cabin in occupation of the respective obstructionist is less, than the room as contemplated by Section 15A of the Bombay Rents, Hotel Lodging House Rates (Control) Act,' 1947 (For short "Bombay Rent Act").
5. Section 15A which was inserted in the Bombay Rent Act by Maharashtra Act No. 17 of 1973 confers deemed tenancy upon certain licensees in occupation on 1.2.1973. Section 15A reads thus:-
15A. Certain licence in occupation on 1st February, 1973 to become tenants. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licence he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
(2) The provisions of Sub-section (1) shall not affect in any manner the operation of Sub-section (1) of Section 15 after the date aforesaid.
6. A licensee is defined in the Act under Clause 4A in Section 5 of the Bombay Rent Act which was also introduced by Maharashtra Act No. 17 of 1973. Clause 4A of Section 5 reads thus:-
4A. "Licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part hereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960; taut does not include a paying guest, a member of n family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor, (or a person having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital or sanatorium,) or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharamshala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigencies of service or provision of residence attached to his 01 her post or office is temporarily not occupying the premises, provided that h= or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises or a person having accomodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions "licence", "licensor" and "premises given on licence" shall be construed accordingly.
7. The licensee as defined in Clause 4A if in occupation of any premises or any part thereof on 1.2.1973, which is not less than a room by legal fiction becomes tenant in respect of such premises or part thereof. The expression pertinently falls for determination in the present two writ petitions is "not less than a room" occurring in Section 15A. The Bombay Rent Act does not define the term "room". There is no escape hence from falling back upon its ordinary and contextual meaning. The Websters Encyclopedic Unabridged Dictionary describes "room" thus:
a portion of a space within a building or other structure, separated by walls or partitions from other parts....
The Concise Oxford Dictionary (9th Edition) describes "room" as follows:
A part of a building enclosed by walls of partition, floor and ceiling....
P. Ramanatha Aiyar's Law Lexicon describes "room" thus:
In its broadest sense a room is any space or apartment separated from others by partition, and in this sense any closet or any small apartment would be a room....
The Readers' Digest Great Encyclopedic Dictionary provides meaning of "room" as: Part of house or other building enclosed by walls or partition....
8. The Bombay Rent Act is a beneficial legislation for protecting tenants from misuse of landlord's power to evict them in days of scarcity of accommodation. The aims and objects of Maharashtra Act No. 17 of 1973 by which Clause 4A in Section 5 and Section 15A were brought on the Statute book were to provide protection to the licensees similar to that of a statutory tenants in respect of the premises or part of the premises residential or otherwise. The legislature, of course, intended to provide protection to the licensees of subsisting licence on 1.2.1973 who were in occupation of the premises or part of the premises not less than a room. Since the term "room" has not been defined by legislature and Bombay Rent Act is beneficial legislation, the term has to be given the meaning as is understood in usual common parlance though, in the broad and wide manner. Tested from this touchstone an independent cabin in a room in its broad and wide sense shall be a room. If there are more cabins in a room and each one of them is separated from the other by partition, each one of such cabin, may be a room in common parlance since in its broad sense, a room is any space or apartment separated from others by partitions and in that sense any closet or a small apartment or a cabin would also be a room. The use of term "room" in Section 15A is also used in relation to an interior portion of a building or structure or part of building or structure or like nature divided by walls or partitions. In the present case, the evidence which has come on record clearly shows that each of the cabin is covered upto ceiling on three sides and on one side there are three windows. Each cabin has independent entrance and can be locked separately. The evidence has also come to the effect that there is open passage outside the cabins and at the extreme end of the passage, there is common door. Each cabin, therefore, is separate and independent room as is understood in common parlance. The Appeal Bench of Small Causes Court, therefore, rightly held that the obstructionists are in occupation of the premises or part of premises not less than a room. The character of each cabin as a room under Section 15A is not changed merely because all cabins are carved out of one room premises let out to original tenant since licensees in occupation of part of premises not less than a room as on 1.2.1973 are protected.
9. The learned Counsel appearing for the petitioners placed heavy reliance on the judgment of the learned Single Judge of this Court in Chandravadan Shukla and Ors. v. Mrs. Charulata Hashmukrao Dave 1989 Mah R.C.J. 53.In that case the question before the learned Single Judge was whether a licensee inducted by the licensee of the tenant is entitled to protection under Section 15A of Bombay Rent Act and the learned Single Judge held that creation of licence by the licensee of the tenant does not afford protection to such licensee under Section 15A. The said judgment, therefore, has no application in the facts and circumstances of the case because the obstructionists are licensees inducted by the original tenant and their licence was subsisting on 1.2.1973. Section 15A provides protection to, (i) the licensee who is licensee within the meaning of Section 5(4A) of Bombay Rent Act ; (ii) such licensee is in occupation on or before 1.2.1973 and (iii) the occupation of such licensee is in respect of any premises or any part thereof which is not less than a room. In the present case, the obstructionists satisfy all the three conditions aforestated.
10. Both the writ petitions therefore have no merit and are liable to be dismissed and are dismissed accordingly.
11. Rule is discharged. No costs.