Bombay High Court
Sohanlal Ambalal Johari (Dr.) vs M.M. Amonkar And Ors. on 18 August, 1980
JUDGMENT S.K. Desai, J.
1. Both these petitions may be disposed of by a common order. The petitioner before me in both the matters in one Dr. Sohanlal Ambalal Johari. The respondent to the petitioners are the widow and children respectively of Dr. N.D. Amonkar (hereinafter referred to as Dr. Amonkar Senior). Dr. Amonkar senior was the tenant of certain premise on the fourth floor of Bombay Mutual Terrace at Sandhurst Bridege, Bombay. In these premises leased out by him initially from the Bombay Mutual Life Assurance Society and subsequently after nationalisation of life insurance business from Life Insurance Company of India, he ran a hospital called "Dr. Amonkar Hospital". A sketch plan of the said hospital has been tendered and marked Exhibit G. This was done in this Court as I found that without an accurate sketch plan of the entire hospital and the premises in dispute it was rather difficult to understand and clarify various points of controversy. The rent paid by Dr. Amonkar senior was Rs. 1100/- p.m. for the entire premises on the fourth floor. We are concerned in these two petitions with the area shaded in green as shown in the said sketch pan Exhibit G which is a cabin admeasuring 11'-2" x 15'-6". As the plan Exhibit G indicates, this cabin has been carved out of the waiting room by means of a wooden partition and it is in evidence that by means of this wooden partition which has grill at the top the rather large waiting room has been divided into two parts. Certain photographs of the partition are found on the record and it is perceived from the photographs that there are in fact two doors giving access to these premises but it is also in evidence that the door on the right (as seen from the waiting room) is the one which was used at all material times.
2. It is this cabin which is the subject matter of the proceedings in the Court of Small Causes to which we will now advert. The principal of the two proceedings was the declaratory suit filed by Dr. Johari, being R.A. Declaratory Suit No. 779/2893 of 1973. The said suit was for a declaration that the plaintiff i.e. Dr. Johari had become a protected license under the Bombay Rent Act as amended by Maharashtra Act No. XVII of 1973. An injunction was also sought in the said suit against the defendant restraining them from taking forcible possession of the suit premise or any part thereof and further preventing the plaintiff his agents and servants etc. desiring to see him from reaching the suit premise. Necessary relief was also sought regarding the user of the common waiting room and the water and electricity available in the side premises. The other proceeding in the Court of Small Causes was an ejectment application filed daffiest the said Dr. Johari by the widow and children of Dr. Amonkar senior to eject him from the said premise and recover from him vacant possession of the same. The premises were described in the Application R.A. No. 259-E of 1976 as the portion of the waiting room of the applicant's hospital known as Dr. Amonkar Hospital, Bombay Mutual Terrace, S.V. Road, Bombay. In the said application it was alleged that the respondent Dr. Johari had been given the said premises on a leave and licence basis.
3. It appears that prior to bring inducted in these premise as a licensee, Dr. Johari was occupying certain premises on the third floor of the very building Bombay Mutual Terrace. This was also as a licensee of another doctor Dr. Sheth. Dr. Sheth, asked Dr. Jhorit to vacate premises and accordingly he was on the lock out for other premises ion which he could carry on his professional work. It may be mentioned that Dr. Johari is a consulting surgeon. He is F.R.C.S. (Eng.) and F.R.C.S. (Eadin.). He is an Honorry Professor of surgery attached to the grant Medical College and Honorary Surgeon attached to the G.T. Hospitals and the Bombay Hospital. He was having consulting rooms as a surgeon in the said third floor premises which he was asked to vacate and sought alternative premises where he could cry on his profession as a consulting surgeon. To turn again to Exhibit G it will be found that shaded blue is a larger cabin shown in Exhibit G as occupied by one Dr. Ravalia. This cabin also has access from the waiting room and it would appear from the said plan Exhibit G, that access to the premises both shaded green and shaded blue would be available only through the said waiting room. The portion shaded blue is larger than the portion shaded green. The measurements shown in Exhibit G are 15-9" x 20'-6" (ignoring the passage) and the portion shaded blue also seems to consist of a cabin formed by means of a wooden partition and it is the admitted position that this larger cain was being occupied by the said Dr. Ravalia. This Dr. Ravalia has been a professional colleague of Fr. Johari. He is also a practising surgeon senior to Dr. Johari and has been attached to the G.T. Hospital. He is also M.S. (Bom.), F.R.C.S. (Eng.) and a F.R.C.S. (Edin.). It appears to be admitted position that Dr. Ravalia knew Dr. Amonkar senior since 1954 and his relations with Dr. Amonkar senior and Amonkar family were and are extremely cordial. He was using the large cabin almost since 1954. Since Fr. Johari was also occupying certain premise in Bombay Mutual Terrace an since he was in touch with Dr. Revalia, he seems to have contracted Dr. Amonkar senior and some time in earlier 1970 discussed the possibility of having his consulting rooms in Dr. Amonkar Hospital premise. I am using the expression "Dr. Amonkar Hospital premises" in a descriptive sense referring to the entire premises taken on tenancy basis by Dr. Amonkar senior without deciding at this stage whether the consulting room subsequently given to Dr. Johari can or cannot be regarded in law as part of Dr. Amonkar Hospital. It has been contended by Mr. Advani appearing on behalf of Dr. Johari that properly sealing these premise (the green shaded portion of the consulting room) cannot be regarded as a part of Dr. Amonkar Hospital. I will defer discussion on this point and the conclusion thereon to a later stage in the judgment.
4. Subsequent to these talks which took place in earlier 1970 Dr. Johari came to occupy the consulting room with effect from 1st May, 1970. It appears to be the admitted position that because of his teaching assignment and being attached to be a number of hospitals he was principally using it as a consulting room in the evening only. There is some controversy as to user by Dr. Johari of the premise earlier than 4 p.m. and I will defer consideration of this controversy to a later part of this judgment. Four or five days after he came to occupy the cabin, Dr. Johari admittedly signed a writing which has been marked Exhibit 1 in the proceedings. We will have occasion to refer to this writing a little later on as the same is very vital to the case of the respondent and if the said writing is accepted as its face value and given its full and due effect, the petitioner must clearly fail. It is, however, the case of the petitioner Dr. Johari that the writing Exhibit 1 did not reflect the true state of affairs that it was not to be acted upon and was taken by Dr. Amonkar senior only as a precaution against inquiries which may be made by his landlords viz. the Life Insurance Corporation of India. Another similar writing signed by Dr. Ravalia in 1962 has also been examined, although Dr. Ravalia claims that there was an earlier writing signed by him in 1954. Such writing however, has not been produced.
5. Towards the end of 1971, Dr. Amonkar senior died and thereafter his widow has continued as the proprietress of Dr. Amonkar Hospital. Some time towards the end of 1972 there appears to have been some reconsideration as regards the premise occupied by Dr. Johari and ultimately on 24th March, 1973, Dr. Johari made a complaint to the Inspector in charge of the Gamdevi Police Station stating that he had been threatened by Dr. (Miss) Usha Amonkar, that if he (Dr. Johari) did not vacate the premise by the end of March, 1973, the consulting room (shaded green) would be forcibly occupied and Dr, Johari's furniture, equipment and other valuable articles would be thrown our. After this complaint was made at the Police Station a letter that Dr. Johari's attachment as Honorary Surgeon to Dr. Amonkar Hospital was not required with effect from 1st April, 1973 forenoon and that he should accordingly take steps to make arrangements for his private consultations elsewhere. This letter has obviously to be read in conjunction with the variting Exhibit 1 signed by Dr. Johari which he gave to Dr. Amonkar senior within a few days of being allowed the use of the consulting room. This letter was followed by another complaint by Dr. Johari to the same Police Station and this was on 29th March, 1973. It was stated therein that a registered letter (the letter dated 20th March, 1972) had been received by Dr. Johari on 26th March, 1972. He informed the Inspector of Police, Gamdevi Police Station, that he (Dr. Johari) was taking appropriate proceeding to protect his rights but that as he was apprehensive of extra legal measures, he sought police protection and wanted the Inspector to post a policeman at the premise. Dr. Johari also wanted the widow and children of Dr. Amonkar to be warned against taking the law in their own hands.
6. Immediately thereafter Dr. Johari filed a suit in the Bombay City Civil Court at Bombay and obtained from that Court an injunction against the defendants (the widow and children of Dr. Amonkar senior) that they should not evict Dr. Johari from his consulting room except by due process of law wise the legal disputes between the parties fell squarely within the jurisdiction of the Small Causes Court. Ultimately, both the parties moved that Court. Dr. Johari did so by filing the declaratory Suit No. 779/2893. This was in June, 1973. Mrs. Amonkar and other children of Dr. Amonkar senior filed Ejectment Application No. 259/E of 1976. In the said suit a written statement was filed by the defendants on 7th March, 1974. Dr. Johari in his turn filed defence in the ejectment application. In the ejectment application the necessary issue was framed which was whether the respondent (Dr. Johari) proves that he is the protected license and/or subtle and in respect of the suit premises concerned in the application and at that stage the parties agreed that the decision on the above issue would be as per decision in the said declaratory suit. Thereafter evidence was recorded by the Court in the declaratory suit. On behalf of the plaintiff Dr. Johari examined himself as the sole witness. On behalf of the defendants two witnesses were examined. One was Dr. D.M. Amonkar who was the second defendant in the said suit and who had been working with Dr. Amonkar senior in Dr. Amonkar Hospital. The second and the only other witnesses examined on behalf of the defendants was Dr. Ravalia. After considering the evidence and the documents brought on record, the learned Single Judge of the Court of Small Causes held that Dr. Jophari failed to prove that the premises has been given on leave and licence to him by Dr. Amonkar senior and accordingly it was held the plaintiff was not entitled to the declaration or injunction sought for in the suit. The trial Court held as proved that the plaintiff was not given the cabin on leave and licence basis. It held as proved that Dr. Johari had been allowed the limited of the cabin as Honorary Surgeon attached to Dr. Amonkar Hospital. The trial Court after negativing the case of the plaintiff went on to consider, even if the plaintiffs case was accepted, whether he was protected by the provisions of the amend Rent Act. It considered the definition of the term "licensee" as defined by section 5(4-A) of the Bombay Rent At band after considering the said provisions together with section 15-A(1), accepted the submission of the defendants that the suit premises could not be considered to be premise as defined and were not under the exclusive control of the plaintiff. It may be said that the learned Single Judge did not give a definite finding specifically but observed that the defendant's contention appeared to be more probable. The learned Single Judge also considered the allied question as to whether the premise Single Judge also considered the allied questions as to whether the premise could be regarded as being part of a hospital and according to the learned Single Judge Dr. Johari was carrying on his business or professions connected with hospital work. It was accordingly held that even if the plaintiff's case was accepted, the premise given to the plaintiff would be covered by the conclusions as provided by section 5(4-A) of the amended Bombay Rent Act. Accordingly the view of the learned Single Judge was that the plaintiff had failed to prove that he was a protected licensee of the premise. Accordingly, Dr. Johari's suit was dismissed with costs. The aggrieved plaintiff thereafter filed an appeal which was numbered as Appeal No. 152 of 1977 and was heard by a bench of Judge of that very Court consisting of the Chief Judge and an Additional Chief Judge. The said appeal was ultimately dismissed with costs. It would appear from a perusal of the appellant judgment that the Appellate Court confirmed the findings of the trial Court on the question that the suit cabin could not be considered as separately given as there was no separate access thereto except through the waiting room. It also accepted the finding of the trial Court that it had been established on the evidence that Dr. Johari was given the premises as he was appointed as an Honorary Surgeon of Dr. Amonkar Hospital. The Bench also laid great emphasis on the fact that Dr. Johari was using the cabin only in the evenings. Apart from these considerations which, in the opinion, disentitled the premises from being considered as premises in respect of which protection was afforded to licensees by the amendment of 1973, it held that Dr. Johari's sit was required to be negatived by holding that the alleged licence did not subsist on 1st February, 1973. It gave this finding on the basis of paragraph 24th March, 1973. According to the Appellant Bench it was clear that long before February 1973, the defendants had revoked the licence given to Dr. Johari and hence on this ground also he was not entitled to succeed in the suit.
7. As stated earlier the appeal was dismissed with costs. The decision in the ejectment application followed the ultimately Dr. Johari was held liable to be evicted from the premise. Being aggrieved by the dismissal of his suit and the order in the ejectment application Dr. Johari has come to this Court by filing a special civil application and a writ petition.
8. It has to remembered in the first place that I am considering a petitioner or an application under Article 227 of the Constitution of India and normally in such proceeding conclusion of facts drawn from the evidence ought not to be lightly interfered with. If on the evidence two views are possible or if documents are capable of two possible constructions, then merely because the High Court feels that the view other than that which found favour with the Court below is the better view, would not be sufficient in a proceeding under Article 227 of the Constitution of India to substitute the so-called better view for the view of the trial Court. The position, however, would be different if in the proceedings or in the judgment it could be shown or established that the approach of the trial Court and of the appellants courts which confirmed the decree of the trial Court was on any particular finding perverse or generally biased or not fully imparities. If grave infirmity suggestive of such attitudes can be indicated then the ordinary constraints which fetter the powers of superintendence would no longer exists and fuller inquiry in depth would be called for.
9. The question then which is required to be considered is whether there is anything which would suggest some bias in the courts below, some lack of impartiality or any similar impropriety of approach which would require this Court to exercise its power of superintendence in the full unrestricted and manner and even to reappreciate the evidence in depth and fully as if it was a first Appellate Court.
10. In my view, both at the trial stage and at the appellate stage there are certain disturbing features revealed in the respective judgments which impel me to consider the evidence fully without the ordinary restraint which this Court ordinarily must put on itself in proceedings under Article 227 of the Constitution of India. These two disturbing feature will be immediately indicated.
11. As far as the trial Court was concerned, I have already stated that the defendant closed their case after examining two witnesses only viz. the second defendant as defence witness No. 1 and the said Dr. Ravalia. Mr. Advani has taken me through this evidence and has drawn my attention to various unsatisfactory features thereof and in particular he brought to my attention the contradictions between the testimony given in Court and affidavit earlier sworn by the said Dr. Ravalia. Dr. Ravalia made no secret about his close ties with the Amonkar family. It is clear therefore that he cannon be regarded as a disinterest witness. On various aspects it has been established that Dr. Ravalia's attitude to giving evidence in Court is rather cavalier and he willing to sign any affidavit or to swear to anything as would help the party whom he has come to help. As a matter of fact Dr. Amonkar (the second defendant) has given evidence in a more restricted and more responsible manner the Dr. Ravalia.
12. It is important to note that after this evidence was closed which was on 18th September, 1976, the case was kept for arguments by the trial Court on 4th October, 1976. On that day, however, arguments could not be heard and the matter was kept back. On 12th October, 1976 an application was made in the trial Court on behalf of Dr. Johari for recalling Dr. Ravalia for further cross-examination.
13. Now, Dr. Ravalia's evidence was to the effect that like Dr. Johari, Dr. Ravalia had also been given a consulting room (although from a much earlier date) in his capacity as a consulting surgeon attached to Dr. Amonkar Hospital and that he was paying certain amounts as and by way of contribution towards electricity charges, water and user of staff and other amenities of the hospital. Now, in his application Dr. Johari brought to the attention of the Court that on 8th October, 1976 he had come to know that in his income tax returns Dr. Ravalia had claimed deduction of these payments as rent paid by him. The necessary particulars are to be found in paragraph 4 of the said application. According to this paragraph Dr. Ravalia had claimed payment or rent of Rs. 1870/- for 1972-73, a sum of Rs. 2250/- for 1973-74 and a sum of Rs. 2295/- for 1974-75. By the said application two prayers were made before the trial Court. It was first urged that Dr. Ravalia be recalled for further cross-examination and that a witness summons or a letter of request be issued to the commissioner of Income Tax for production of the income an returns of Dr. Ravalia for the said three years.
14. Now, to my mind the application was quite germane and if the allegation had been admitted, the same had been established, we would have had some yardstick for the purpose of evaluating the testimony of Dr. Ravalia. Of course, Dr. Ravalia might have admitted that he had claimed these deductions for income tax purposes, although they were not rents but contributions as he has deposed to, and the Court would then have been required to consider the said explanation, if offered by Dr. Ravalia. Dr. Ravalia might have denied that he had claimed such deduction which fact then could have been established and this would have gone a long way in establishing or destroying Dr. Ravalia's credibility as a witness. It is to be remembered that the application was made immediately after the closing of the evidence so that there was no question of reopening evidence recorded much earlier. However, as was natural, the application was opposed by a short affidavit filed on behalf of the defendants by the second defendant and the application was rejected by the trial Court. In my opinion, the order rejecting the application is a most unsatisfactory order and suggests-at least it has suggested to mea lack of judicial approach to the proceedings and is indicative of some bias in favour of the defendants and against the plaintiff. The trial Court, in my opinion, has deliberately sought by this order to shift out an important aspect of the matter and the approach to the application can hardly be regarded as fair, proper or just.
15. Whenever such applications are made, it is they duty of the Court to consider whether the fresh evidence sought to be recorded is relevant to the controversy between the parties. If it finds that such evidence may have some vital bearing on the controversy or appreciation of the evidence led on any crucial question, such evidence must be allowed to be led even at a belated stage. In this case the stage obviously was not that belated. The evidence was, in my opinion, quite relevant and pertinent. Despite this the evidence has been shift out and this would indicate the rather improper approach of the trial Court. Further, it has to be noted that there was no affidavit filed by Dr. Ravalia opposing investigation into his income tax returns. If at all there was a question of privilege or confidentiality, it was for Dr. Ravalia to claim it. The order, with respect, makes somewhat strange reading and I am totally dissatisfied with the manner in which the application was rejected.
16. As far as the appeal Court is concerned. Mr. Advani made a grievance of the fact that although he had made a complaint as regards the order rejecting this application in Ground 27 of the memo of appeal the appeal Court has not dealt with the said complaint. He has complained of the observation made by the Appellate Bench that the plaintiff could be non-suited on the ground that the licence was not subsisting on 1st February, 1973. In his submission, which I am inclined to accept this conclusion is an impossible one on the pleadings and on the evidence on record and only indicates the wrong approach of the Appellate Bench.
17. Mr. Advani, took me through the pleadings in the declaratory suit where after referring to the facts (according to Dr. Johari) the plaintiff has sought a declaration that he is a protected licensee under Maharashtra Act No. XVII of 1973. In the plaintiff he has referred to the complaints as well to the letter dated 20th March, 1973 to which I have adverted earlier. I was thereafter taken through the written statement and in the written statement it has been advered in paragraph 15 that the plaintiff is not and cannot be a licensee within the meaning of Act XVII of 1973, but it has not been alleged any where that the alleged licence, if any, was revoked and stood revoked prior to 1st March, 1973. Further, to the said written statement is annexed as Ex. 1 the writing which was taken from Dr. Johari in which it has been indicated that he was allowed to practice his private consultation in the premises as Honorary Surgeon to Dr. Amonkar Hospital. Thus the case of the defendants clearly was that Dr. Johari was permitted to have his private consultation in the said cabin because he was Honoray Surgeon attached to Dr. Amonkar Hospital and he was paying certain monthly amounts as his contribution towards expenses incurred towards electricity, telephone, use of furniture and instruments. Thus, by the writing set up by the defendants and annexed to the written statements, the user of the cabin Dr. Johari for his private consultations was linked to his capacity and appointment as Honoray Surgeon to Dr. Amonkar Hospital. Now, by the letter dated 20th March, 1973 this capacity was sought to be terminated with effect from 1st April, 1973. This would imply even without reference to the second paragraph of the said letter that Dr. Johari's right to carry on private consultations in the cabin would exist upto 31st March, 1973 and come to an end with effect from the 1st day of the month following. This is the natural implication; but to leave no doubt it is made clear by the ultimate paragraph of the said letter that on receipt of the letter Dr. Johari should take steps and make arrangements for his private consultations elsewhere. Thus, irrespective of the question whether the right of user of the said cabin by Dr. Johari would or would not be covered by the concept of a licence under the amendment, the so-called right of user was undoubtedly subsisting on the date of the said letter and it is impossible for any judicial Tribunal to have come to the conclusion by reference to paragraph four of the complaint to the Gamdevi Police Station that there was a revocation of the licence prior to 1st February, 1973. This revocation has not been pleaded in the written statement, has not been deposed to by Dr. Amonkar and is inconsistent with the letter of 20th March, 1973. That the Appellate Bench was required to read paragraph four of the complaint in isolation in this manner in order to arrive at such finding would seem to indicate a lack of judicial and impartial approach in the appellate decision also.
18. It has to be emphasised, however, that merely because an application has been wrongly decided or the point or question of the subsistence of the licence held against the plaintiff in a perverse manner would not be sufficient to hold that the conclusions of the trial Court on other points affirmed by the Bench are required to be brushed aside and the matter decided in favour of the petitioner before me. The approach, however, of both the courts below as is clear from these two conclusions, is quite suggestive and in this matter, therefore, it has become necessary to embark upon the review in depth the entire evidence, including the oral testimony of the witnesses as well as the documentary material brought on record, and to re-examine the issues not being fettered by the findings of facts given by the courts below. To this extent then the above conclusions assume great importance.
19. In order to consider the evidence and to appreciate it, is becomes necessary to refer briefly to the statutory provisions on which reliance was placed by Dr. Johari. Upto 1973 the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, only intended to confer protection on tenants and the courts were often called upon to decide the nice distinction between a tenant and a licensee. One of the tests was exclusive possession, but this was not a decisive test.
20. By Maharashtra Act No. XVII of 1973 far-reaching amendments were made to the said Act (hereinafter referred to as "the rents Act"). A definition of "licensee" was introduced by section 5(4-A) and protection was conferred on licensees by section 15-A of the Rent Act. With these amendments the definition of "premises" in section 5(8) as well as relevant portions of section 13 i.e. section 13(1)(e) and section 15 of the Rent Act, were also amended. Principally, however, we are concerned with section 5(4-A) read with section 15-A although the amendments to the other provisions will assist us in properly construing and interpreting these provisions. A further amendment of section 5(4-A) took place by Maharashtra Act No. XXXI of 1979 and it has been contended by Mr. Abhyankar appearing on behalf of the Amonkar family that the claim of Dr. Johari to be a protected licensee will be governed by the provisions of the Rent Act a it stands amended both by the earlier amendment of 1973 and the subsequent amendment of 1979. This aspect also will have to be considered.
21. By the amendment of 1973 a licensee in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part under a subsisting agreement for licence given for a licence fee or charge. The definition of "premises" in section 5(8) has been also amended to include any building or part of a building let or given on licence separately. By section 15-A it has been provided that notwithstanding anything contained elsewhere in the Rent Act or anything contrary in any other law for the time being in force, or in any contract, the licensee in occupation of premises or any part thereof which is not less than a room be deemed to have become, for the purposes of the Rent Act, the tenant of the landlord. This would imply that in respect of a licensee as would fall within the definition of the term contained in section 5(4-A) read with the further requirement indicated in section 15-A, the landlord i.e. in case of licence, the licensor, would be entitled to recover possession of the licensed premises only as provided by sections 12 and 13 of the Rent Act. It is clear, however, that the concept of licence as indicated by section 5(4-A) read with section 15-A of the Rent Act is somewhat narrower than the one under the Indian Easements Act. Further all licensees are not given protection. In the first place, the premises or the part thereof in respect of which protection is claimed must not be less than a room. Further, the licence in respect of these premises must be subsisting on 1st February, 1973. The licensee must be in occupation of the premises for a licence fee or charge. Finally, the premises must not be premises which are excluded from protection specifically under section 5(4-A).
22. If the premises in dispute between the parties before me are considered, it will be required to be held that the cabin in which Dr. Johari carried on his consultation practise must be regarded as a room and would satisfy one of the requirements which is prescribed in section 15-A. This has not been seriously disputed by Mr. Abhyankar. Similarly, disagreeing totally with the approach of the Appellate Bench it must be held that the arrangement between the parties under which Dr. Johari was permitted the user of the cabin-and I deliberately use the word arrangement was subsisting on 1st February, 1973. However the finding as regards satisfaction of the other two requirements would depend upon arriving at a proper conclusion as to the nature of this arrangement. To put it in other words, was the cabin given for consultation to Dr. Johari because he was appointed and did in fact act as Honorary Consulting Surgeon Dr. Amonkar Hospital ? Further, was the cabin given to him only for use in the evening after 4 p.m. or 5 p.m. and whether Dr. Amonkar senior or the proprietor of Amonkar Hospital had reserved to himself or herself the right to use the cabin in he remaining hours?. One other question which is required to be considered would be whether Dr. Johari paid any licence fee or charge for the use of the cabin or whether the amount he was paying was rateable contribution towards the expenses of the hospital ?.
23. In the first place, the nature of the work being done in the said hospital will be required to be considered. It appears to be the admitted position that Dr. Amonkar Hospital is predominantly if not solely, a maternity and gynecological hospital. It has been deposed of by the second defendant that in the said hospital maternity and gynecological work is done, although according to him the hospital is equipped to do general surgical work. Maternity patients come directly or are sent by general practitioners. The second defendant has also indicated what surgical assistance would be required in Dr. Amonkar Hospital. He has deposed that he and defendant No. 3 are competent to do all the gynecological work. As far as surgical assistance is concerned, Dr. Amonkar junior has deposed that in a general hospital such assistance, if necessary, would be taken from the house Surgeon. He has however, stated further that in Dr. Amonkar Hospital there is no Houseman or House Surgeon and all the work is done by the qualified medical members of the Amonkar family. The surgical problems which are likely to arise in a hospital such an Amonkar Hospital have also be deposed to by Dr. Ravalia.
24. Bearing in mind the work done, at the said hospital, the first question which is required to be considered is whether in March, or May, 1970 which is the period during which talks took place between Dr. Amonkar senior and Dr. Johari, was there need or necessity for attaching a consulting surgeon of Dr. Johari's qualifications and statute to Dr. Amonkar Hospital ?. Once the question is put in these terms, the answer must be in the negative and the answer becomes the obvious and the only possible answer when it is realised that in 1970 when the cabin was allowed to be used by Dr. Johari. Dr. Ravalia was already attached to the said hospital carrying on his consulting work in a larger cabin (shaded blue in Ex. G.. Dr. Ravalia thus was available for such surgical problems the rare ones-which were likely to arise in the course of the usual work done in Dr. Amonkar Hospital. At this stage it becomes necessary to consider the writing which was signed by Dr. Johari. This writing Ex. 1 is on a stamp paper of Rs. 1.50 and it reads as follows :-
"I, the undersigned Dr. S.L. Johari state that I am Honorary Surgeon to Dr. Amonkar Hospital. I am allowed to practise my private consultation in the premises. I am neither licensee nor sub-tenant.
I have to bear rateably the expenses incurred towards telephone, electricity, use of furniture and instruments."
25. Now the first point which would seem to arise would be : Does a hospital appoint honorary Surgeons in this manner by taking writings on stamp paper from them? It is quite clear that the writing is really not taken to record the appointment of Dr. Johari but to protect Dr. Amonkar senior in respect of the use of the said cabin allowed to be made by Dr. Johari. This impression gathers strength by the admission taken in the said writing from Dr. Johari that he claimed neither the status of a licensees nor sub-tenant in respect of the premises i.e. the cabin where he was allowed to have his private consultation.
Sd/- S.L. Johari".
26. The second paragraph in the said writing which I have earlier extracted would also to be in the nature of protection secured by Dr. Amonkar senior against any contention which may be raised by the landlord that he had either sublet the cabin or was profiteering by allowing Dr. Johari to use the same for his private consultation. It has been admitted by the second defendant in his evidence that the figure settled viz. Rs. 201/- per month was an ad hoc figure and so attempt was made at the end of the first month or at any time prior or subsequent to the execution of Ex. 1 to quantity the total expenses or what could be fairly or equitably attributed to Dr. Johari's user of the said cabin. It would also appear from the consideration of the blue shaded and greed-shaded portions in Ex. G that amounts were determined as payable by Dr. Ravalia and Dr. Johari respectively not on the basis of their sharing any expenses nor even on the basis of the area of the respective cabins but on a footing which as not been brought out. Areawise, the rate charged to Dr. Ravlia works out to much less than the one charged to Dr. Johari, but the explanation for this is quite simple viz. that Dr. Ravalia was allowed to use the cabin far back in 1954, whereas Dr. Johari came in the picture only in 1970. It is clear to me from the evidence on record that the amount charged to Dr. Johari was not his proportionate contribution towards the expenses of the hospital but it was an amount charged for allowing him to use the said cabin for his personal consultation work.
27. It is true, and Dr. Johari has so admitted, that he has used the hospital facilities for performing minor surgical operations on three or four occasions during the period of about two and half to three years before the disputes started between the parties. According to Dr. Johari, however, he was not permitted to use the hospital facilities free of charge on those occasions but amounts had been charged and collected directly from his patients who had availed of the hospital facilities. My attention has been drawn by Mr. Advani to the fact that the claim that hospital facilities were freely availed of by Dr. Johari and his patients suggested in the pleading seems to have been given up the Amonkar at the time when evidence was recorded in the trial Court. There is evidence to the effect that once earlier even when he was the licensee of Dr. Sheth that Dr. Johari had performed a minor operation at Dr. Amonkar Hospital using the operation theatre.
28. Thus, as far as Ex. 1 is concerned, we have the clear position that Dr. Amonkar Hospital did not require any second consulting surgeon when it already had one (Dr. Ravalia) and that the amount payable by Dr. Johari was fixed on any proper considerations as regards the share of expenses of the hospital which could be attributed to him but on an ad hoc footing and principally based on a consideration of the area of the cabin allowed to be used by him.
29. This by itself, however, may, not be sufficient I think there is considerable substance in Mr. Abyankar's arguments that if it could be established that as a matter of right the hospital was entitled to use the cabin when Dr. Johari was not using the same, then Dr. Johari may not be entitled to claim the protection as a licensee. If all that Dr. Johari was given under his agreement with Dr. Amonkar was a limited right of user of the cabin or user restricted to certain hours, then there would be some difficulty in holding that he was entitled to be protected by the amendments made in 1973 in the Rent Act. It has been deposed to by Dr. Amonkar (the second defendant) that during the time when Dr. Johari was not using the said cabin it was being used by the accountant as also by then users as a relaxation room. Apart from the word of Dr. Amonkar and the very unsatisfactory evidence given by Dr. Ravalia, there is nothing to make probable such nurses. Dr. Ravalia evidence is totally worthless in this respect. According to him the nurses of Dr. Amonkar Hospital were using his own cabin even when he was sitting there and having his consultation work. As observed earlier, he is more partisan, more biased and more interested than even the second defendant. As far as the second defendant's evidence is concerned, it would appear to me, bearing in mind the fact that Dr. Johari changed the lock on the cabin immediately after a few days after he was allowed to use the same, that the case of the second defendant of user of this cabin by nurses and by the said accountant is suspect. Mr. Advani laid stress on the observations made at the interlocutory stage by Judge Deshmukh of the Small Causes Court but those are tentative observation and they cannot be used to decide finally whether or not use was made by the hospital staff of the said cabin at a time when Dr. Johari was not using the same. It is important in this connection to note that there is no mention of such right of user in Ex. 1. It is also pertinent to bear in mind the staff alleged to be using the cabin have not been examined. Mr. Advani appearing for Dr. Johari rightly drew my attention to the extensive premises available to Dr. Amonkar Hospital and submitted and there is considerable force in his submission that there was no necessity whatsoever of utilising this cabin. The final question is whether any such use, if any use is assumed for the sake of argument, was as a matter of right ? Dr. Johari has deposed that he used to leave the key of the cabin with the hospital staff. That probably was for the purpose of keeping the premises clean as also for the purpose deposed to i.e. for doing pooja. In this state of the record, I am not in a position to hold that the user of by Dr. Johari of the cabin was not such as would disentitle him tot he protection conferred by section 5(4-A) read with section 15-A of the Rent Act. As a matter of fact Dr. Johari appears to have been doing consultation practise in the cabin after 4 p.m. but was occasionally using it for personal work even prior 4 p.m. This would seem to make no difference to the principal relief sought.
30. The Judges of the Court of Small Causes have laid some emphasis on the fact that access to the cabin was through the waiting room. The fact appears to me to be totally irrelevant for considering the legal position. If the question of access were to be given that importance, it would imply that if there was a subsisting licence in respect of an inside room in any premises such licensees would be required to be denied the protection which the Legislature sought to confer on them by making the amendment of 1973.
31. As far as Ex. 1 is concerned, there seems to be considerable force in the submission advanced by Mr. Advani appearing on behalf of Dr. Johari that the writing was taken only for the protection of Dr. Amonkar senior. This would be borne out by considering the pleadings and the evidence as to what was the talk between the parties at the time when Dr. Amonkar senior agreed probably at Dr. Ravalia's insistence to allow Dr. Johari to do consulting work in this cabin. It would appear that this cabin was available and not in use particularly because Dr. Gaitonde (daughter of Dr. Amonkar senior) had, after her marriage, gone to stay with her husband in Calcutta. I am inclined to accept what has been deposed to by Dr. Amonkar (the second defendant) that Dr. Johari had been given to understand that as and when required he would have to vacate the cabin and more particularly in case Dr. Gaitonde returned to Bombay and wanted to resume her practise in her father's hospital. As Dr. Gaitonde is a paediatrician, her practise would be and could be conveniently carried on a part of Dr. Amonkar Hospital. On a review of the evidence it would appear to me that the agreement between Dr. Amonkar senior and Dr. Johari was to allow to Dr. Johari the use of this cabin for carrying on his private consultation and it was for this permissive user that he agreed to and paid to Dr. Amonkar senior Rs. 201 per month. The writing Ex. 1 was taken from Dr. Johari and a similar writing seems to have been taken earlier from Dr. Ravalia to protect Dr. Amonkar senior from any inquiry which maybe made by his landlords. It is pertinent to note that although Dr. Ravalia has stated that he has given a similar writing in 1954, he only produced the writing of 1962. It is difficult to accept Dr. Ravalia's evidence as regards the earlier writing. It would appear that in 1962 a writing was taken Dr. Ravalia wherein he also agreed that he was carrying on consultation work as a surgeon attached to Dr. Amonkar Hospital. It is pertinent to note that this writing was taken some time after nationalisation of the life Insurance business which took place in 1956 by reason of which Bombay Mutual Terrace building came to be owned by Life Insurance Corporation of India. It is impossible to accept the necessity for having either Dr. Ravalia or Dr. Johari as consulting surgeon to a hospital of the type of hospital which Amonkar Hospital. Was. Ad hoc amounts were being charged to them irrespective of the expenses. Dr. Ravalia was charged less than Dr. Johari although he occupied the large cabin of the two. This must have been due to the fact that his occupation was much earlier in point of time than that of Dr. Johari. This almost totally negatives the contribution theory. There is no clear pleading that the licence given to Dr. Johari had been terminated at any time prior to 1st February, 1973 and the letter dated 20th March, 1973 is clearly destructive of any such contention.
32. Thus, as far as the green shaded cabin is concerned, it would appear to me that in 1970 a licence has been created in favour of Dr. Johari in respect of this cabin and the licence was subsisting on 1st February, 1973. It would appear further the cabin must be considered as premises not being less than a room and apparently, therefore, within the protection conferred on licensees by the amendment of the Rent Act enacted in 1973. It would appear further that the writing Ex. 1 did not represent the real state of affairs as far as Dr. Johari and Dr. Amonkar Hospital were concerned and also as for as Dr. Johari's right to use the said cabin was concerned. I am also totally disinclined to accept the evidence of Dr. Amonkar (Junior) and Dr. Ravalia to the effect that the cabin was being used by other employees at some time in the morning and in the afternoon i.e. at the time when Dr. Johari was not having his consultations. It is not possible, therefore, to hold as Mr. Abhyankar submitted that there was no licence given in respect of the cabin to Dr. Johari or that the licence, if any given, was not such a licence as was intended to be covered by the amendment of 1973.
33. Proceeding on the footing that there was licence given in respect on this cabin and that in respect of this licence a fee was charged to Dr. Johari, the question would still arise whether protection was intended to be conferred by the Legislature on persons similar to Dr. Johari. It is pertinent to note in this connection that various different types of premises have been excluded from the definition of a licensee, as introduced by the amendment of 1973 and this exclusion has been further amplified by the amendment of 1979.
34. At the out set I must state that the manner in which the protection has been conferred and exclusion provided for is totally unsatisfactory and such loose method of drafting laws only adds to the burdens of courts and to the harassment of the litigants. However, the duty of interpreting such laws cannot be shirked even though the task has been made onerous by the Legislature.
35. Broadly speaking, after including within its protective ambit, any premises or part, thereof, in a building vesting in or leased to a co-operative housing society. Section 5(4-A) as originally introduced in 1973 goes on to exclude "a paying guest, a member of a 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 in a hotel, 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......." A perusal of this part of the definition would seem to indicate the different types of persons who are to be executed from the protection conferred by the amendment. The first clause would include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor. Then follows a catena of different types of a accommodations which are to be excluded. These, however, would appear to all in three broad groups ones again. In the first class of exclusion of such accommodations would be persons having any accommodation in a hotel, lodging house, hotel, 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. We are really concerned with this group since it has been contended that the cabin occupied by Dr. Johari must be regarded as accommodation in a hospital and, therefore, outside the purview of the protection conferred by the amendment of 1973.
36. Mr. Advani urged a minor point for my consideration which may be immediately dealt with. It was submitted that the hospital business was carried on portions other than the two cabins occupied by Dr. Ravalia and Dr. Johari respectively and according to Mr. Advani this would be borne out by a perusal of the plan Ex. G. In my opinion, it is impossible to come to such a conclusion by merely looking at the without there being necessary evidence on record although the point is without merit. The tenancy is one and in the entire tenanted premises. Dr. Amonkar senior had been running his hospital. As a matter of fact the waiting room was the waiting room to the hospital and it is part of the waiting room that constitutes the cabin which has been given to Dr. Johari in 1970. Therefore, physically at any rate I would regard this cabin as part of the premises of Dr. Amonkar Hospital. It was then submitted by Mr. Advani that accommodation in a hospital is not to be understood in the sense of any room or place in a hospital but in a limited or restricted manner. According to him accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, dharamshala, home for widows, orphans, or like premises will be required to be understood not in the physical sense but in what may be called a qualitative sense. To illustrate, as far as nursing homes or hospitals are concerned, it was urged that the exclusion must be restricted to patients or convalescents only in such places and cannot be extended beyond these limited categories to other persons. My attention was drawn to a list indicating the excluded licensees contemplated by section 5(4-A) in "The Law Relating to Protected Licensees" by J.H. Dalal, which may now be regarded as one of the standard books on the subject and it would appear from this list to be found at page 43 that the author understood the exclusion as being restricted to patients and convalescents only. However, I find some difficulty in accepting this submission of Mr. Advani. The word 'accommodation' in this part of the definition would not only govern places like hotels, hospitals etc. but also places of amusement or entertainment or like institutions. We do not find any assistance from statement of objects and reasons or notes on clauses on the relevant point, but accommodation in various sorts of premises is kept outside the purview of this protection. If in this list accommodation had been used in connect on with places like hotels, guest house, nursing homes, hospitals and sanatoriums only, then it would not have been very difficult to accept the limited meaning to the term accommodation or to accept it in a restricted sense as Mr. Advani wishes me to accept. A difficulty is created, however, by the word accommodation being used in connection with a place of amusement or entertainment or like institution. How such accommodation be understood in the restricted sense in which Mr. Advani submit the word accommodation is required to be understood qua hotels, guest houses and hospitals ? Reason and logic may perhaps lean in favour of the construction sought to be put by Mr. Advani as far as hotels, guest house, hospitals and sanatoriums are concerned, but reason and logic do not always permit to legislations. The intention of the Legislature is to be gathered from the words used, and the manner of use do not allow me to accept the limited or restricted meaning canvassed for acceptance by Mr. Advani.
37. This does not imply, however, that the matter is at an end. Accommodation in a hospital which need not be restricted to the accommodation given to patients will not include all rooms in a hospital. Physically, it would appear that this cabin is a part of Dr. Amonkar Hospital. That, however, is not enough and would not enable me by itself to hold that the cabin is excluded from the protection intended to be conferred by the amendment of 1973. It would appear that accommodation in a hospital would be required to be understood as accommodation given to a licensee having nexus with the hospital, connected or with the work done in the hospital. In this connection my attention was drawn to a decision of the Supreme Court in which decision sections 2(b) and 7(1) of the Delhi, Ajmer, Merwara, Rent Control Act (19 of 1947) came up before the Supreme Court for consideration. This decision to which immediate reference may now be made is Associated Hotels of India Ltd. v. S.S. Kapoor, . Before considering the decision in some depth, it may be pointed out that even under section 5(8) of the Bombay Rent Act, the word "premises" has been defined not to include a room or other accommodation in a hotel or lodging house.
38. In Associated Hotel's case, the Supreme Court was called upon to decide the question whether the rooms or spaces let out by the appellant Associated Hotels to the respondent Kapoor were rooms in a hotel within the meaning of section 2(b) of the Delhi, Ajmer, Merwara, Rent Control Act under consideration. The question was whether the expression meant a room which in the physical sense was within the building or part of the building used as a hotel or did it mean something more i.e. the room itself was not only within a hotel in the physical sense, but let out to serve what are known as hotel purpose. It may be mentioned that the three Judges consisting of the Bench which decided the said case have given three separate judgments and it will become necessary in order to understand the concept of accommodation in a hotel to refer to thee three judgments in some details to ascertain what the Bench or majority of the said Bench has decide.
39. The question which was required to be considered by the Supreme Court was formulated by S.K. Das, J. in paragraph 3 of his judgment in this manner :-
"......Take, however, case where the room in question is within that part of the building which is used as a hotel, Dharamashala or lodging house, but the room is let out for a purpose totally unconnected with that of the hotel, lodging house or Dharmshala as the case may be. Will the room still be a room in a hotel, lodging house or dharamshala? That, I take, it is the question which we have to answer."
In the view of S.K. Das, J. a room in a hotel must fulfil two conditions : it must be part of a hotel in the physical senses, and secondly its user must be connected with the general purpose of the hotel of which it is a part. Applying the test propounded by him he held that the spaces had been let out to Kapoor for carrying on the business of a hairdresser which was, in the opinion of S.K. Das, J. an amenity for residents in the hotel. According it was held that room in question were rooms in a hotel within the meaning of section 2(b) of the Rent Control Act, 1947, under considering Sarkar, J. did not fully agree with the approach of S.K. Das, J. He referred to the judgment of the Delhi High Court in which Khosala, J. had observed that a room in a hotel need not necessarily be a bed room but it must be so intimately connected with the hotel as to be a part and parcel of it, that it must be a room which is an essential amenity provided by an hotel, Sarkar, J. did not agree with this approach of the Delhi Court. According to him, he could not appreciate why any room in hotel is not intimately connected with it by which apparently is meant, the business of the hotel. According to Sarkar, J. the plaint meaning of the expression "room in a hotel" should govern the case before the Court. He, therefore, came to the conclusion that the room in a hotel within the definition is any room in a building in the whose of which the business of hotel is run. Subba Rao, J. was the third Judge constituting the bench. He has dealt with this aspect of the matter in paragraph 28 of the judgment. In this paragraph Subba Rao, J. gives five illustrations which in his opinion would clarify what would be implied in the phrase "a room in a hotel". These five illustrative given by Subba Rao, J. are :
"(1) A owns a building in a part whereof he runs a hotel but leases out a room to B in the part of the building not used as a hotel;
(2) A runs a hotel in the entire building but lets out a room to B for a purpose unconnected with the hotel business;
(3) A runs a hotel in the entire building and lets out a room to B for carrying on his business different from that of a hotel though incidentally the inmates of the hotel take advantage of it because of its proximity;
(4) A lets out a room in such a building to another with an express condition that he should cater only to the needs of the inmates of the hotel; and (5) A lets out a room in a hotel to a lodger, who can command all the services and amenities of a hotel."
In the opinion of Subba Rao, J. in the first illustration, the room has never been a part of a hotel though it is part of a building where a hotel is run. In the second, though the room was once part of a hotel, it ceased to be one, for it has been let out for anon-hotel purpose. In the fifth illustration the room is let out as part of a hotel and there is no doubt whatsoever that it was a room in a hotel. Illustrations 3 and 4 are the important illustrations which would clarify the situation. According to Subba Rao, J. in the fourth illustration the room may still continue as part of the hotel as it is let out to provide an amenity or service connected with the hotel. However, in Subba Rao, J. view, to extend the scope of the words to the third illustration is to obliterate the essential distinction between a room in a hotel and a room in any other building. According to Subba Rao, J. There must be a reasonable nexus between the business of the tenant and that of the hotel. If such nexus is absent, the room for the purpose of the Act would cease to be part of the hotel. Accordingly, Subba Rao, J. is in agreement with the approach of S.K. Das, J. that the room must be let out for some purpose connected with the hotel. Unless, the room was let out for hotel purposes, or unless the nexus is established, the room would not be a room in a hotel although physically it may be part of the premises in which a hotel exists or hotel business is being carried on.
40. Mr. Abhayankar appearing on behalf of the Amonkar family, submitted without prejudice to his principal contention viz. that Dr. Johari was allowed the user of the cabin as a consulting surgeon attached to Dr. Amonkar Hospital that even if the Court were not prepared to accept this position which was established in his submission by Ex. 1, sufficient nexus had been established between the user of the cabin by Dr. Johari and Dr. Amonkar Hospital. As indicated earlier, I am not in a position to accept Mr. Advani's submission that this cabin cannot be considered to be physically part or the Dr. Amonkar Hospital. In my opinion, the onus of establishing this submission was on Dr. Johari. He has failed to bring necessary evidence on record. This failure must compel me to hold that this cabin carved out of the waiting room in the premises or which Dr. Amonkar senior was original the tenant is physically part and parcel of the Dr. Amonkar Hospital. I am equally unable to accept Mr. Abhyankar's principal contention that Dr. Johari was allowed the user of this cabin as a consulting surgeon attached to Dr. Amonkar Hospital. I have already indicated my view that Ex. 1 did not represent the real state of affairs. I have also indicated the reasons for holding or arriving at this view. Bearing in mind the work done at the hospital, the needs of the hospital and the fact that there were already a senior consulting surgeon in the person of Dr. Ravalia available, there was no need for the hospital to have a second consulting surgeon. As a matter of fact whatever surgical work or emergencies were likely to arise were fully capable of being attended to by Dr. Ravalia. Indeed it would appear that both these doctor are ever-qualified for the surgical needs of Dr. Amonkar Hospital and Dr. Amonkar Junior (the second defendant) has very fairly stated that in a general hospital such work would be done by the houseman.
41. Mr. Abhyankar, however, urged that the facts before the Supreme Court in Associated Hotels' case were essentially different from the facts before me. In Associated Hotel's case spaces in the cloak room had been given to a hairdresser and the Supreme Court was required to apply its mind to the question whether these spaces could be continued on regarded as room or rooms in a hotel. According to Mr. Abhyankar, a cabin physically part of hospital premises has been allowed to be used for consulting work by a surgeon and sufficient nexus must be deemed to exist by reason of those facts. According to him further there is a evidence on which it would be required to be held that the hospital had availed of the services of Dr. Johari and that Dr. Johari had in turn also availed of the facilities of the hospital.
42. I would like to dispose of the last submission first. It appears that on three or four occasions during this period of two to two an half years, the operation theatre of Dr. Amonkar Hospital had been utilised by Dr. Johari to perform minor operations. There is a controversy between the parties as to whether this was on payment or not. According to Dr. Johari payment was directly made by his patients. It would appear that the hospital does not maintain proper books of account. At any rate such books do not appear to have been disclosed before the trial Court and it is not possible to hold on this evidence that Dr. Johari was allowed the user of the operation theatre free of that he was allowed to use the operation theatre as a matter of right.
43. Indeed, if Ex. 1 is to be looked at, it does not provide for any obligation on the part of Dr. Johari to use the operation theatre in any manner or for a particular fixed time or to make any payment or the same, nor does it provide for a corresponding obligation on the part of the hospital to allow, Dr. Johari to use the operation theatre. Dr. Johari, under the circumstances must be regarded as having used the operation theatre as he would conceivably use the operation theatre of any nursing home or hospital in the city. Even prior to his coming to the cabin, Dr. Johari had once used the operation theatre of Dr. Amonkar Hospital. The conclusion might conceivably been different if the user had been frequent which would be suggestive the fact that even without documentary proof or any obligation, by the conduct the parties had accepted some similar reciprocal obligation as use by Dr. Johari, is totally unhelpful in reaching the conclusion whether or not his cabin can be regarded as accommodation in a hospital.
44. The second defendant has deposed that Dr. Johari was being consulted occasionally, if not often, whenever surgical problems arose for Dr. Amonkar Hospital. No material, apart from the word of the second defendant, has been brought on record to suggest that Dr. Johari had ever been consulted. No. Hospital record or papers have been produced to prove such consultation. According to Mr. Abhyankar such record are destroyed after two or three years and since there was a gap of more than four year between the probable consultations and the date on which the matter was tried, such record could not be produced in Court. The burden, however, was on the defendants to establish such consultations. At this stage I would observe that Dr. Ravalia's testimony as far as his consultations are concerned is totally unsatisfactory. I would characterise it as almost ludicrous and he has made a pathetic attempt to establish that he was also being consulted although according to him the manner employed and the mode of consultation were totally different from that employed in the other hospitals to which he was attached as a surgeon.
45. On the question of nexus which is required to be established by the Amonkar family I, would observe that nexus in the case before me could be a little more flexible than the one which was considered in Associated Hotels' case by the Supreme Court. In this case I would have held such nexus established had the defendants proved either a genuine appointment of Dr. Johari as the consulting surgeon or a fairly substantial number of rear consultations or advice taken by the hospital authorities from Dr. Johari during this period or a binding obligation on the part of Dr. Johari to utilise the Dr. Amonkar Hospital facilities in a definite ascertained manner and to pay for them or to secure payment for them. As far as the third aspect is concerned, I have already observed that although a limited use is admitted such user was incidental and not under any binding obligation. As regard the first and the second aspect I must hold that the defendants have failed to establish either a real appointment of Dr. Johari as a consulting surgeon attached to Dr. Amonkar Hospital or consultations with him in such capacity during the course of those two or two and a half years.
46. Accordingly it will have to be held that under section 5(4-A) as introduced in 1973, the cabin occupied by Dr. Johari cannot be accepted or regarded as accommodation in a hospital and hence was not out side the purview of the protection conferred on the licensee of that cabin i.e. Dr. Johari which protection was added by Maharashtra Act No. XVII of 1973.
47. That the position under the further amendment which was effected Maharashtra Act No. XXXI of 1979 ? By this amendment persons having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital or sanatorium are also to be denied the protection conferred on licensees by the earlier amendment of the Rent Act which took place in 1973. This further amendment is also not happily worded. Even if the statement of objects and reasons are perused, it will be clear that the amendment actually enacted appears to be wider than the objects indicated and even this wider phraseology is not precise.
48. The note on Clause 2 of the bill reads as under :---
"Clause 2.---By the amendments made in 1973, protection of the Rent Act has been given to licensees also. Section 5(4-A) defines, who are to be considered as licensees for getting the benefit of this protection. Institutions like hospital a, nursing homes and sanatoriums require the service of medical and para medical personnel who are given quarters so that their service may be available easily for the patients. In order that such facilities are not misused and the institutions are not involved in lengthy and frivolous litigation to get back possession, it is found necessary to qualify that such person are not protected licensees under the Act".
49. The word added to section 5(4-A) by the amendment made to the Rent Act by Maharashtra Act XXXI of 1979 must be restricted to persons rendering medical or para medical services to a nursing home, hospital or sanatorium and given accommodation in or near nursing home or sanatorium by the institution. What is clarified by the amendment of 1979 ? As far as accommodation in nursing homes, hospitals and sanatoriums are concerned it is clarified that the exclusion from protection is not restricted to patients of convalescents only. It would extend to and cover persons carrying or rendering medical or para-medical services who are given accommodation in or near there three types of institutions. Further, it is clarified that the accommodation may be within the institution or near the institution. The idea of nexus, however, is made more explicit by the phraseology employed and it is clearly necessary that the accommodation has been provided to facilitate the rendering of medical or para medical services by the persons, given the accommodation to the nursing home, hospital or sanatorium.
50. Proceeding upon the assumption that the relief required to be granted to Dr. Johari would be required to be considered bearing in mind the amendment of 1979, the question is whether he would be covered by the additions as to section 5(4-A) effected by the said amendment. The answer to the query would depend upon the question whether he was allowed the user of this cabin as a consulting surgeon of Dr. Amonkar Hospital or whether in fact he rendered as a consulting surgeon to Dr. Amonkar Hospital in the period during which he used this cabin for his private consultation. Unless either of these is established. Dr. Johari's case would not be covered by the words introduced in section 5(4-A) by Maharashtra Act No. XXXI 1979.
51. In my opinion, the fact established in this case do not indicate that Dr. Johari was given this accommodation for rendering medical services to Dr. Amonkar Hospital, and if that be so, even the amendment of the Rent Act effected in 1979 will be of avail to the defendants. Even proceeding on the footing or assumption that this amendment must be related back and regarded as having been in force right from the inception i.e. 1973, the cabin given to Dr. Johari, or to put it more properly, the licence granted to Dr. Johari to use this cabin for private consultation is not excluded from the protection now conferred on licensees by the amendments effected in the Rent Act after 1973.
52. Before passing the final orders in this writ petition and special civil application I would observe that the fair vie of the evidence recorded by the Court of Small Causes would suggest that Dr. Amonkar senior had obliged Dr. Johari by giving him this accommodation when he was made to level his premises on the third floor of Bombay Mutual Terrace building. At that stage Dr. Johari did not resit his eviction from the third floor premise although the Courts not strangers to licensees or permissive occupants taking the plea of being sub-tenants and sticking on to the premise for years before the litigation is finally ended. At that juncture he vacated the cabin of Dr. Sheth and was permitted to utilise this cabin by Dr. Amonkar senior. The evidence suggests that this cabin was then available because Dr. Ghaitonde, the married daughter of Dr. Amonkar senior, had joined their hospital at Calcutta. Although a substantial amount was being paid by Dr. Johari and was being charged to Dr. Johari, this does not appear to be case of gross profiteering, but a fair charge made for the licence given a brother doctor by a senior doctor. In the normal course, but for the ideas put in Dr. Johari's head by the legislation, I am certain when the premises were required by Dr. Amonkar, Dr. Johari would have vacated the premises and sought either separate premises on ownership basis or sought to secure other licensed premises. To a certain extent, Dr. Johari has taken advantage, as many have taken, of the amendment effected by the Legislature in 1973. However, whatever be the understanding between the two, it does not affect the legal position which I am required to ascertain and indeed I am compelled to pass appropriate orders in this petition in accordance with the conclusions reached on the evidence recorded and in the light of the legal position as ascertained and construed by me.
53. In the result, in Special Civil Application No. 30 of 1979 the Dr. Johari's suit will be decreed in terms of prayers (a) and (b). However, an far as Prayer (b) is concerned, I will make certain clarifications as to what user of Dr. Johari is intended to be protected. In the first place, the user is restricted to the hours 9 a.m. in the morning to p.m. in the evening, excluding Sundays. Further, it is made clear that between 9 a.m. to 4 p.m. the user of the cabin is retracted to Dr. Johari personally, but during these hours Dr. Johari is permitted to have one peon who must be allowed to sit in the waiting room as also access in the same manner as Dr. Johari. I am informed that Dr. Johari has peon during the consulting hours also and for his personal use the same peon or some other peon but only one may be allowed. The consulting work will be restricted to the hours 4 p.m. to 8 p.m., though it is desirable that the work of the patients should be wound up as far as possible at about 7.30 p.m. so that the waiting room may be closed by 8 p.m. as seems to be the usual practice. The order in terms of prayer (b) is granted subject to the above qualifications.
54. As far as prayer (b) is concerned, certain difficulties are likely to arise in future and hence the parties are given liberty to apply for clarification of the injunction in case of difficulty. Such application to be made to the Court of Small Causes. The plaintiff Dr. Johari is directed to give the name of his peon to the person in charge of the hospital and as and when another peon is employed to give the name of such substitute so that unauthorised persons may be prevented from entering the premises.
55. As far as Writ Petition No. 115 of 1979 is concerned, on the findings given by me and the decree granted in terms of prayers (a) and (b) in the suit, the order in ejectment application is required to be quashed. Accordingly, rule in Writ Petition No. 115 of 1979 is made absolute in terms of prayer (a).
56. The parties, however, will bear their own costs throughout as also in the special civil application and the writ petition.