Vijaysinh Gordhandas and others v. Mahdhuribai wd/o Mahadhvdas Govindji and another
1994-01-28
B.P.SARAF
body1994
DigiLaw.ai
JUDGMENT -Dr. B.P. SARAF, J.:-By this writ petition the petitioners, who are the trustees of a charitable trust known as "Dhanji Mulji Bhatia Nivas Trust", have challenged the judgment and order dated 26 November, 1986 of the Additional Chief Judge of the Court of Small Causes at Bombay in Appeal No. 185 of 1986 holding, inter alia, that the respondent No. 1 was a protected licensee/deemed tenant as per the provisions of section 35-A(1) read with section 5(4-A) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("Bombay Rent Act") in respect of the premises of the trust in her occupation and modifying the order of the trial Court accordingly. 2. The petitioners are the trustees of "Dhanji Mulji Bhatia Nivas Trust". One Haridas Dhanji Mulji, under a trust deed dated 16 October, 1938 created the said trust and settled the property known as Dhanji Mulji Bhatia Nivas, 36/69 Cavel Cross Lane, Kalbadevi Road, Bombay -2, (hereinafter referred to as "the trust property"). The said trust deed provides that the managing trustee or the trustees shall permit or allow the trust property to be used or occupied as residence by poor and indigent members of the Bhatia community free or on payment of nominal fees. The trust deed further provides that the amount of compensation or fees charged from such persons occupying the trust property should not exceed the amount of ground rent, municipal taxes and other outgoings. By the said trust deed the settler also empowered the trustees to frame rules and regulations in respect of the trust property to provide, inter alia, for (a) the admission of deserving poor and indigent Bhatia to the benefits conferred and provided by those trusts; (b) the exclusion of undesirable persons therefrom; (c) the requisites or qualifications for admission; (d) the circumstances under which any occupier may be expelled or any person receiving any benefit thereunder shall be excluded; (e) the cases in which persons other than deserving occupiers or persons may be allowed to occupy any part of the trust premises with deserving occupiers or persons; (f) the nominal fees for rents to be paid by each occupier. In pursuance of the authority given under the trust deed, the trustees framed rules applicable to persons occupying the trust property.
In pursuance of the authority given under the trust deed, the trustees framed rules applicable to persons occupying the trust property. Rules 3, 11, 12, 13 and 20 which have a bearing on the controversy in the present case are set out below : "2. It is in the diserotion of the Trustees as to who or which family should be permitted to reside in this Nivas and also about the time when the user should be stopped and the premises should be vacated. 11. No family shall keep in the premises any person whose name is not mentioned in the application made by it or permit any one sleep therein without the written permission or keep any person in its premises by taking money or shall bring any sick person or friend without the written permission. None shall keep any longer in this Nivas. 12. No family shall allow any other family or person to use the premises obtained for its own use and if it is found out otherwise than this, then the original family and the persons residing with without it shall be asked to vacate forthwith. 13. If any family keeps closed the premises given for it to use for more than thirty days, it shall be presumed that the family is not in need of the premises and the trustees have power to take possession thereof. If anybody wants to go out for more than thirty days for any important reason he shall have to take permission of the trustess in advance by written application. 20. As this Nivas is constructed for those who are eligible to take its help, the trustees will make inquiries about each family every year and if during the inquiry the trustees find that any family or families is/are not eligible for giving help, the trustees will ask them to vacate the Nivas by 30 days written notice. But the trustees have a right to make any family and the persons residing with him to vacate the premises given to him for use without notice and the trustees will not be bound to give any reason for the same". 3. In pursuance of the powers conferred on the trustees, respondent No. 1 - Madhuribai was allowed by them to use room No. 3 on the third floor of the trust property at a nominal compensation of Rs. 6.50 per month.
3. In pursuance of the powers conferred on the trustees, respondent No. 1 - Madhuribai was allowed by them to use room No. 3 on the third floor of the trust property at a nominal compensation of Rs. 6.50 per month. For that purpose, she was required to submit a form to the trustees stating her net monthly income, occupation and the number of persons who would be residing with her in the trust premises. She also agreed to abide by the rules and made a categorical statement that she had no right of a tenant in respect of the premises given to her for use. 4. In the year 1970, the petitioners revoked the above licence granted in favour of the respondent No. 1 by their advocates notice dated 23 October, 1970 and called upon her to hand over vacant possession of the premises to the trust. Respondent No. 1 replied to the above notice by her advocates letter dated 20 November, 1970. She denied that she was a licensee in respect of the premises in question and contended that she was a tenant and, as such, protected under the Bombay Rent Act. The petitioners thereupon filed an application in the Court of the Small Causes at Bombay for her eviction. The said application was dismissed for default on 2 February, 1973. The application for restoration was also dismissed on 7 August, 1974. The petitioners thereafter filed a second application before the Court of Small Causes on 4 October, 1974 for recovery of possession of the suit premises from respondent No. 1. 5. One of the preliminary objections raised by the respondent No. 1 before the Court of Small Causes (hereinafter "the trial Court") was that in view of the provisions of the Bombay Rent Act she had become a protected tenant with effect from 1 February, 1973. The trial Court took up the preliminary issue for determination and by his judgment and order dated 16/18 January 1985 held that the respondent had failed to prove that she was monthly tenant of the suit premises and consequently she was not protected under the Bombay Rent Act. The respondent preferred appeal before the Appeal Bench of the Court of Small Causes at Bombay. The Appeal Court decided in favour of the respondent.
The respondent preferred appeal before the Appeal Bench of the Court of Small Causes at Bombay. The Appeal Court decided in favour of the respondent. It held that the respondent was protected licensee/deemed tenant in respect of the premises in her occupation as per the provisions of section 35-A(1) read with section 5(4-A) of the Bomaby Rent Act and hence protected under the provisions of the said Act. The petitioners have challenged the above order of the Appeals Court by the present writ petition. 6. I have perused the impugned orders of the courts below. It appears that the material facts of the case are not in dispute. There is no controversy about the trust deed and its contents and the rules and regulations framed thereunder. There is also no dispute about the fact that the room in question was allotted by the trustees of the trust to respondent No. 1 as a deserving poor and indigent Bhatia at a nominal fee of Rs. 6.50 per month. The controversy by the respondent No. 1 is a legal controversy only. According to her, on 1 February, 1973 she had become a deemed tenant of the room in question by virtue of section 15-A of the Bombay Rent Act inserted by the Maharashtra Act 17 of 1973. Counsel for the petitioners submits that the respondent No. 1 cannot get the benefit of section 15-A of the Act for reasons more than one. First the respondent No. 1 is not a licensee within the meaning of Clause (4-A) of section 8 of the Act which defines the expression "licensee". Second, respondent No. 1 ceased to be a licensee in the year 1970 itself when a notice was served on her revokting the licence from 23 October, 1980. 7. In reply, the counsel for respondent No. 1 submits that so far as the first aspect of the question whether there was a revocation of the licence in 1970 by the notice dated 23 October, 1970 or the revocation that took place when the second application for ejectment was filed on 4 October, 1974 is concerned, it is a question of law still to be decided by the trial Court and this Court should not go into the same at this stage.
The only issue to be decided by this Court, according to the counsel for the respondent, is whether respondent No. 1, if she continued to be a licensee of the premises belonging to the trust on the 1st day of February, 1973, can be said to have become a deemed tenant of the said premises under section 15-A read with section 5(4-A) of the Bombay Rent Act. Section 15-A of the Act reads as under : "15-A. Certain licensees 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 licensee 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 sub-section 15 after the date aforesaid".
(2) The provisions of sub-section (1) shall not affect in any manner the operation of sub-section (1) of sub-section 15 after the date aforesaid". Clause (4-A) of section 5 defines a licensee in the following terms: "(4-A) "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 thereof 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; but does not 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, 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, dharmashala, 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 a residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increase for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or party 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 accodingly;" A conjoint reading of the above provisions makes it clear that certain categories of persons in occupation of the premises specified therein, who would otherwise fall within the definition of licensee, have been carved out of it by specifically saying so in the definition of "licensee" in Clause (4-A) of section 5.
Such persons include a paying guest, a member of a family residing together, a person in the service or employment of the licensor or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharmashala, home for widows, orphans or like premises. The question that falls for determination is whether the premises of the petitioner trust falls in any of the above categories of excluded premises. 8. Admittedly the premises of the petitioners were to be used for charitable objects for the benefit of the poor and indigent members of the Bhatia community. Under the rules framed by the trustees, it is in the discretion of the trustees to select the person who should be permitted to reside in the said premises and also determine the time and user thereof. It is also in the discretion of the trustees to decide when the premises should be vacated by such occupant. Rule 20 specifically provides that the premises being constructed for those who are eligible to take its help, the trustees are empowered to make enquiries about each family every year and if during the enquiry the trustees find that any family or families is/are not eligible for giving such help, they may ask them to vacate the premises by 30 days written notice. Power is also given to the trustees to make any family and the persons residing with them in the premises of the trust to vacate the same without notice and without assigning any reason. A careful perusal of the scheme of the trust deed and the rules and regulations governing the allotment of premises for user to poor and indigent persons of the Bhatia community for the purpose of their stay clearly goes to show that the occupants are expected to stay there only till their condition improves. The question that arises is whether such premises will fall within the exception contained in Clause (4-A) of section 5 or not. On a careful perusal of Clause (4-A) it appears that "dharamashala, home for widows, orphans or like premises" have been excluded from definition of "licensee" who can claim protection of section 15-A. The premises in question cannot be described as exclusive home for widows or orphans though it may also be used for that purpose.
On a careful perusal of Clause (4-A) it appears that "dharamashala, home for widows, orphans or like premises" have been excluded from definition of "licensee" who can claim protection of section 15-A. The premises in question cannot be described as exclusive home for widows or orphans though it may also be used for that purpose. The question that arises for consideration is whether the expression "like premises" which follows the expression "dharmashala, home for widows, orphans" can be construed to include within its ambit the premises kept for use of the poor and indigent persons. Counsel for the respondents submits that "like premises" must be interpreted ejusdem generis and so read, "like premises" would mean premises similar to home for widows and orphans. He also submits that a careful perusal of the categories of premises excluded from the definition of licensee" in Clause (4-A) clearly shows that it is intended to keep out of the purview of "licensee, occupant" of premises which are used only for temporary accommodation and not the occupants of premises of the trust which are kept for use of the poor and indigent members of the community. 9. I have carefully considered the above submissions. I, however, find it difficult to accept the same. In my opinion, the expressions, "home for widows, orphans or like premises" include the premises of the petitioner trust which admittedly are intended for use of poor and indigent members of the community. It is allotted to such persons for their use as a temporary measure during the period of poverty etc. which is evident from the fact that every year the trustees are required to make enquiries about each family in occupation of the trust property and to ask them to vacate the same if it is found that they were no more eligible for such help. There is a further provision in the trust deed which restricts the period of occupation to 10 years.
There is a further provision in the trust deed which restricts the period of occupation to 10 years. In Clause (6), which gives authority to the trustees to make rules and regulations, inter alia, prescribing the nature and extent of the limits of accommodation in each case, it is said - "...Provided always and it shall be an invariable rule that no individual or family shall be allowed to have the benefit of the trust premises for more than ten years save in cases of quite exceptional need of which the trustees alone shall be the sole judges, or where the poor individual or family is related to the settlor and is otherwise considered by the trustees as deserving of further extension of the period of residence but in no other cases... ...." In my opinion, the expression "or like premises" can be more appropriately construed with the help of the doctrine "Noscitur a sociis" and so construed the conclusion is inevitable that the intention of the legislature was to exclude from the ambit of the definition of "licensees" who can claim to be deemed tenants for availing of the benefits of the Bombay Rent Act. Persons having any accommodation in premises used as home for widows, orphans or "like premises", meaning thereby premises used by persons having similar salient features as widows and orphans, like poor and indigent persons. 10. In view of the above discussion, section 15-A of the Act has no application to the case of the respondent No. 1. She cannot be treated as a deemed tenant under the said section because it is only a licensee within the meaning of Clause (4-A) of section 5 who may be treated as deemed tenant under section 15-A in the conditions and circumstances specified therein. 11. Counsel for respondent No. 1 also referred to the provisions of section 4(2) of the Act which empowers the State Government to exempt premises specified therein from the operation of the Act. One of the categories of premises included therein in sub-clause (iii) is premises held by a public trust for a religious or charitable purpose and let or given on licence at a nominal or concessional rent or licence or charge.
One of the categories of premises included therein in sub-clause (iii) is premises held by a public trust for a religious or charitable purpose and let or given on licence at a nominal or concessional rent or licence or charge. However, in this case it is not necessary for us to go into this aspect of the matter as we are called upon to decide the limited question whether respondent No. 1 can be held to be a deemed tenant who is entitled to the protection of section 15-A of the Act. 12. In view of the above discussion, I find that the learned Appeal Court was not justified in passing the impugned order dated 26 November, 1985. The same is set aside and the order of the trial Court is restored. 13. In the result, writ petition is allowed. Rule is made absolute. No order as to costs. 14. Certified copy expedited. Petition allowed.