Amarjit Singh Vs. R.N. Gupta

Amarjit Singh vs R.N. Gupta

Type Court Judgment Court Mumbai Decided Jun 28, 1995

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Citation: sooperkanoon.com/360254
Court: Mumbai High Court
Judge: R.G. Vaidyanatha, J.
Decided On: Jun 28, 1995
Case Number: Civil Revision Application No. 394 of 1995
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

Tenancy - eviction - Section 13A2 (1) and 13A2 (3) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and Sections 3, 59 and 61 of Evidence Act, 1872 - revision application against Order directing licensee-petitioner to vacate suit premises - whether certain transaction is lease or licence is question ...

Key legal issue: Tenancy
Acts & sections: Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13A2(1) and 13A2(3); Evidence Act, 1872 - Sections 3, 59 and 61

Parties & Advocates

Appellant / Petitioner

Amarjit Singh

Advocate Anita A. Agarwal, Adv.

Respondent

R.N. Gupta

Advocate V.A. Thorat and P.B. Sawant, Advs.

Legal References

Acts: Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13A2(1) and 13A2(3); Evidence Act, 1872 - Sections 3, 59 and 61
Reported In: 1995(4)BomCR538

Excerpt

.....and lodging house rates control act, 1947 and sections 3, 59 and 61 of evidence act, 1872 - revision application against order directing licensee-petitioner to vacate suit premises - whether certain transaction is lease or licence is question of fact based on circumstances of each case - competent authority considered relevant clauses of agreement and oral evidence adduced by parties - transaction between parties was not lease but licence - licencee liable to be evicted on expiry of licence period - impugned order justified. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of..........suit premises. being aggrieved by that order, the petitioner has come up in revision.3. the learned counsel for the petitioner contended that the question whether a particular transaction is one of a lease or licence is a mixed question of law and fact and the finding of the competent authority is erroneous, and therefore, the petition requires to be admitted. reliance was placed on : [1960]1scr368 , associated hotels of india v. r.n. kapur. on the other hand, the learned counsel for the respondent supported the impugned order.4. it is true as observed by the supreme court in associated hotels of india's case : [1960]1scr368 that the question whether in a particular case the transaction is one of a lease or licence is a question of fact to be decided on the peculiar facts and circumstances of the case, the contents of the document, the intention of the parties etc. but in my view, in the present case, we are guided by a special legislation viz. the bombay rent act which contains provisions for leave and licence in addition to tenancies. a special forum is created for eviction of licensees who are continuing in the premises after the expiry of the licence period.section 13-a-2(1) of the bombay rent act provides a procedure for eviction of a licensee before a competent authority. then a special rule of evidence is prescribed in section 13-a-2(3)(b) which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein.in view of this special rule of evidence prescribed under the act we cannot go beyond the document to find out the intention of the parties, the circumstances of the case, the nature of possession etc. as pointed out by the supreme court in the associated hotels of india's case. that rule may be applicable to leases under the general law. but we are concerned with the leave and licence under a particular statute which prohibits taking of extraneous factors other than the contents of the document to find out the.....

Full Judgment

R.G. Vaidyanatha, J.

1. This is a revision petition filed against the order dated 24-3-1995 in Application No. 41 of 1994 on the file of Competent Authority (Rent Act), Konkan Division, Bombay. Heard both the sides.

2. The respondent filed a petition for eviction against the petitioner before the Competent Authority alleging that the petitioner is staying in the suit premises as a licensee and since the period of licence has expired, he is liable to be evicted.

The petitioner's contention was that he is not a licensee, but he is a tenant in possession, and therefore, entitled to protection of the Rent Act.

After recording evidence and hearing both the sides, the learned Authority has held that the transaction between the parties is one of leave and licence and since the period of licence has expired, he directed the licensee to vacate the suit premises. Being aggrieved by that order, the petitioner has come up in revision.

3. The learned Counsel for the petitioner contended that the question whether a particular transaction is one of a lease or licence is a mixed question of law and fact and the finding of the Competent Authority is erroneous, and therefore, the petition requires to be admitted. Reliance was placed on : [1960]1SCR368 , Associated Hotels of India v. R.N. Kapur. On the other hand, the learned Counsel for the respondent supported the impugned order.

4. It is true as observed by the Supreme Court in Associated Hotels of India's case : [1960]1SCR368 that the question whether in a particular case the transaction is one of a lease or licence is a question of fact to be decided on the peculiar facts and circumstances of the case, the contents of the document, the intention of the parties etc. But in my view, in the present case, we are guided by a special legislation viz. the Bombay Rent Act which contains provisions for leave and licence in addition to tenancies. A special forum is created for eviction of licensees who are continuing in the premises after the expiry of the licence period.

Section 13-A-2(1) of the Bombay Rent Act provides a procedure for eviction of a licensee before a competent authority. Then a special rule of evidence is prescribed in section 13-A-2(3)(b) which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein.

In view of this special rule of evidence prescribed under the Act we cannot go beyond the document to find out the intention of the parties, the circumstances of the case, the nature of possession etc. as pointed out by the Supreme Court in the Associated Hotels of India's case. That rule may be applicable to leases under the general law. But we are concerned with the leave and licence under a particular statute which prohibits taking of extraneous factors other than the contents of the document to find out the nature of the transaction.

5. Now in the instant case, the learned Authority has considered the relevant clauses of the agreement and oral evidence adduced by the parties and has come to the conclusion that the transaction between the parties is one of a leave and licence and that the licensee is liable to be evicted on the expiry of the licence period. As far as this point is concerned, I do not find any error apparent on the face of record or error of jurisdiction on the part of the Competent Authority in passing the impugned order.

6. Then a grievance was made that in the agreement the clause relating to payment of security deposit of Rs. 50,000/- has been struck off by the petitioner in the original agreement and that payment of Rs. 50,000/- is an indication that the transaction is one of a lease and not licence. Some explanation is given by the landlord to show under what circumstances he scored off that particular clause. In my view, this contention will not help the petitioner in any way since it is not his case either in the written statement or in the evidence that he had paid cash of Rs. 50,000/- as security deposit to the landlord. When the petitioner himself has not come forward with such a plea either in the pleadings or in the evidence, the fact that the landlord scored off the clause in the agreement will not take the petitioner's case any further.

7. Having considered the arguments on both the sides and having regard to the law bearing on the point under consideration, I do not find any illegality or infirmity in the impugned order.

8. In the result, the revision petition is rejected at the admission stage. However, the petitioner is granted one month's time to vacate the premises.

Same Court & Year Mumbai · 1995 Same Parties Amarjit Singh vs R.N. Gupta Same Subject Tenancy Same Judge R.G. Vaidyanatha, J. Acts & Sections Bombay Rents, Hotel and Lodging House Rates Control Act, 1947...

Tenancy