Afsar Shaikh Vs. P.N. Kaul and anr. - Court Judgment

Excerpt:
bombay rents, hotel and lodging house (rates control) act (57 of 1947) as amended by act no. 18 of 1987) sections 6(4) and 13a-2 - licensee continuing to occupy after expiry of licence period before 1.10.1987--licence not subsisting or existing on the date of amendment. eviction order by the competent authority not sustainable.;the licence having come to an end on 1.7.1986 was not subsisting on 1.10.1987, when the amending act 18 of 1987 came into force, the provisions as amended were not applicable to the case in question. on 1.10.1987 when the act was brought into effect the licence was not subsisting and therefore the definition of licence has no relevance. the order passed by competent authority could not be sustained and was liable to be set aside. - promotion; [v.g. palshikar, actg, c.j., a.p. deshpande & r.m. borde, jj] maharashtra employees of private schools (conditions of service) regulation act, 3/1978, section 5; promotion to post of head master of primary school held, seniority is to be counted from date he acquires requisite educational and training qualifications. for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. no person can be legally appointed who does not hold training qualification. hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority. for appointment to the post of head master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under schedule b of the m.e.p.s. rules. the seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in schedule b. - 11. a close and careful reading of sub-section (4) of section 6 would show that by this enactment the provisions of section 13a-2 and part iia were made applicable to the premises given on licence for residence by landlord referred to in section 13a-2 on or after commencement of the bombay rent control amendment act, 1986. the plain language or sub-section (4) of section 6 clearly indicates that the premises given by a landlord referred to in section 13a-2 on licence for residence on or after commencement of the bombay rent control amendment act, 1986 i. to encourage the system of giving premises by landlords on licence basis and on the failure of the licensee to deliver possession of the licensed premises to landlord on expiry of period of licence, to enable the landlord to get possession of licensed premises speedily, the aforesaid amendments in bombay rent control act were brought. rather it may well be a matter of degree the greater the unfairness, the more it is to be expected that parliament will make it clear if that is intended (1991) 2 aii. sub-section (4) of section 6 as well as section 13a-2 were enacted by the same amending act i. and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a cooperative 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 exigencies of servr.m. lodha, j.1. the competent authority, pune division, pune by its order dated 14.3.1989 in m.a. no. 27 of 1988, p.n. kaul and anr. v. afsar shaikh, allowed the application for eviction filed under section 13a-2 of the bombay rent control act, and, held that the applicants were entitled to recover possession of the premises in question and ordered the eviction of the occupant-petitioner herein. the competent authority also directed the occupant to pay damages at double the rate of licence fee or charge of the premises fixed under the agreement of licence with effect from 1.7.1986. this order passed by the competent authority is under challenge in this civil revision application.2. briefly stated facts of the case are that the respondent no. 2 herein mrs. raj dulari ganju (for short, 'licensor') and her caretaker made an application for eviction under section 13a-2 of the bombay rents, hotel and lodging house rates (control) act, 1947 (for short, 'rent control act') against the petitioner herein (for short 'licensee'). in the said application it was averred that the premises in question i.e. flat no. 2 on plot no. 52 survey no. 604/1605 + 608, lulla nagar, pune was given to the licensee on licence for a period of 33 months with effect from 1.10.1983 and written leave and licence agreement was executed between the parties. according to the licensor, the licence fee was rs. 900/- and compensation charges for use and occupation every month was rs. 600/-. after expiry of the licence period though the licensor requested the landlord to vacate the premises, the licensee did not vacate. in the application, it was averred that cause of action to file application arose on 1.8.1986 when the term of licence expired and licensee did not vacate the premises and continued to occupy it illegally. the licensor thus prayed that decree for eviction be passed against the licensee and she be directed to hand over peaceful vacant possession of the suit flat and licensee be ordered to pay double the agreed compensation for the period of occupation alter the expiry of the licence. the said application was contested by the licensee and a plea was set out that he was not licensee but tenant at the monthly rent of rs. 600/-. according to licensee he continued to occupy premises in question on expiry of the period of 33 months as tenant in the disputed premises. the licensee also set-up the plea that the competent authority had no jurisdiction to entertain and try the application since he was tenant and even otherwise the provisions of section 13a-2 of the rent control act were only applicable to the agreement of leave and licence executed on or after 1.10.1987.3. the competent authority held that it has jurisdiction to try the matter and provisions of section 13a-2 were applicable. relying on explanation (b) of section 13a-2 to the effect that the agreement of leave and licence in writing shall be conclusive evidence of the fact stated therein, the competent authority held that it cannot go into the question raised by the licence that he was tenant in the disputed premises on the face of the written agreement of leave and licence dated 1.10.1983. the competent authority thus, passed the order of eviction and for payment of damages as already observed above.4. mr. dalvi, learned counsel for the petitioner contends that on the face of the admitted facts that leave and licence agreement was executed on 19.10.1983 effective from 1.10.1983 for a period of 33 months and the said licence ended on 30th june, 1986, no licence was subsisting on the date section 13a-2 was introduced in rent control act and, therefore, the provisions of section 13a-2 of the rent control act were not attracted. mr. dalvi, learned counsel for the petitioner would submit also that in application the licensor has averred that cause of action to file the application arose on 1.8.1986 when the period of licence expired and when the licensee did not vacate the premises and continued to occupy it illegally and, therefore, on the face of this pleading, section 13a-2 was not attracted. mr. dalvi, the learned counsel for the petitioner also submits that the competent authority also held while deciding issue no. 4 that the agreement provided the period of 33 months w.e.f. 1.10.1983 and that period expired before the commencement of section 13a-2 and, therefore. in view of the decision of this court in ravindranath h. hiremath (lt. col.) v. prashantkumar buttan (1994) 2 mh.l.j. 1731, the order passed by the competent authority cannot be sustained.5. mr. bhosle, learned senior counsel appearing for the licensor in reply firstly urged that the licensee admitted in his affidavit filed before the competent authority that he continued to occupy the flat after expiry of the agreement dated 1.10.1983 on the same terms and conditions and, therefore, licensee was occupying the premises under the same terms and conditions of the licence under which he was permitted to occupy the premises and, therefore, on 1.10.1987 licence was subsisting according to the licensee himself. in this connection, mr. bhosle referred to section 5(4a) of the rent control act. the learned senior counsel would al so contend that this case also involved the same question which has been referred by me in civil revision application no. 210 of 1989 to the division bench for answer whether the provisions of the amendment to the bombay rent control act by maharashtra act no. xviii of 1987 introduced on 1.10.1987 is applicable to the licences created prior to 1.10.1987 but continued to be in existence on or after 1.10.1987 and, therefore, this case should also be referred to the division bench.6. coming to the last submission made by the learned senior counsel for the licensor first, it may be at the outset observed that in this civil revision application the question referred by me to division bench for answer in civil revision application no, 210/89 does not arise. it is true that while hearing civil revision application no. 210/891 was not able to persuade myself with the view taken by m.l. dudhal, j. in ravindranath h. hiremath's case (supra) to the extent it was held therein that amendment to the bombay rents, hotel and lodging house rates control act by maharashtra act no. xviii of 1987 introduced on 1.10.1987 was applicable also in respect of licences created prior to 1.10.1987 provided the licence continued to be in existence on or after 1.10.1987. in my reference order dated 25.9.1996 passed in civil revision application 210/89, shri bhagwan laxman v. smt. gangubai, i expressed my view thus:11. a close and careful reading of sub-section (4) of section 6 would show that by this enactment the provisions of section 13a-2 and part iia were made applicable to the premises given on licence for residence by landlord referred to in section 13a-2 on or after commencement of the bombay rent control amendment act, 1986. the plain language or sub-section (4) of section 6 clearly indicates that the premises given by a landlord referred to in section 13a-2 on licence for residence on or after commencement of the bombay rent control amendment act, 1986 i.e. 1.10.1987 shall be subject to the provisions of section 13a-2 and part iia. the language of sub-section (4) of sections 6 and 13a-2 being clear and unambiguous is required to be read as it is and nothing is required to be read into. when the new provision of section 6(4) makes the provision that the licence for residence relating to the premises given by a landlord referred to in section 13a-2 on or after the commencement of bombay rent control amendment act, 1986 shall be subject to section 13a-2 and part iia whereby special forum has been created to meet the object of the amendment act, it obviously excludes the licences created earlier to the commencement date whether existing or not existing on that date. the law makers found that many a landlord prefer to keep their premises vacant instead of letting them or giving them on licence for fear of not getting the premises back when they want the same for their own use as it requires several years to get possession of such premises through court of law. to encourage the system of giving premises by landlords on licence basis and on the failure of the licensee to deliver possession of the licensed premises to landlord on expiry of period of licence, to enable the landlord to get possession of licensed premises speedily, the aforesaid amendments in bombay rent control act were brought. it thus entitles the licensor to recover the possession of premises from licensee on expiry of the period of licence by making an application to the competent authority. sub-section (2) of section 13a-2 makes the provision that any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises he is liable to pay damages at double the rate of licence fee or charge of premises fixed under the agreement of licence till he is dispossessed by the competent authority. it is cardinal principle of construction that every statute is prima facie prospective unless it is made to have retrospective operation expressly or by necessary implication and that rule of prospective operation is generally applicable where it imposes new burdens or impairs existing rights or obligations. 'nova constituted futuris formam imponere debet non praeteritts' i.e. a new law ought to regulate what is to follow, not the past, principles of statutory interpretation by justice g. p. singh (sixth edition) at page 319-320 quotes statement of rule formulated by stangthton lj. in secretary of state for social security v. tunnicliffe in the following words: 'the true principle is that parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them unless contrary intention appears. it is not simply a question of classifying an enactment as retrospective or not retrospective. rather it may well be a matter of degree the greater the unfairness, the more it is to be expected that parliament will make it clear if that is intended (1991) 2 aii.e.r. 712. the aforesaid principle needs to be applied while construing section 13a-2 . it is clear from perusal of section 13a-2 that it does not provide a procedure simpliciter, but also imposes a liability on such licensee to pay damages at double the rate of licence fee or charge of premises fixed under the agreement of licence if he does not deliver the possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises. in my view when such liability is created upon the licences which came into existence on or after the commencement of the bombay rent control amendment act. 1986 and a special forum and remedy is provided therefor, it cannot be made applicable to the licences which were existing or subsisting on the date of the corning into force of section 13a-2 i.e. 1.10.1987. it cannot be lost sight of that both the provisions viz. sub-section (4) of section 6 as well as section 13a-2 were enacted by the same amending act i.e. bombay rent control amendment act. 1986 and they came into effect on the same date i.e. 1.10.1987 and the predominant intention-of the legislature in enacting the said provisions as indicated from statement of objects and reasons was to create a speedy forum for licence of residence created on or after the commencement of the bombay rent control amendment act, 1986. if a licence was created on or before 1.10.1987, on the terms and conditions mutually agreed and the licensee did not know that in case he did not vacate the premises on expiry of the licensed period, he would be saddled with liability of paying damages at double the rate of licence fee or charge of the premises fixed under the agreement, merely because the licence was subsisting on 1.10.1987 when the bombay rent control amendment act, 1986 came into force, he could be saddled with such liability determinable and enforceable by competent authority.12. the real issue in each case as to its construction is as to the scope of particular enactment having regard to its language and the object discernible from the statute read as a whole. the intention of the legislature is required to be gathered from the language used in sub-section (4) of section 6 and section 13a-2 , the object of its enactment, the nature of the rights affected or the liabilities created and the circumstances under which the said statute was passed, and, in my view taking all these factors into consideration, the language used in sub-section (4) of section 6 and section 13a-2 , the right created in favour of such licensor-landlord to recover possession of premises given on licence on expiry of licence by making application before competent authority and the explanation that an agreement of licence in writing shall be conclusive evidence of the fact stated therein, the liability imposed upon the licensee to pay damages at double the rate of licence fee or charge of premises fixed under agreement and the objects and reasons highlighted in clauses 5 and 13 of statement of objects and reasons while enacting sub-section (4) of section 6 and section 13a-2 , the only intention of legislature appears to be to make the said provision applicable to the premises given on licence for residence on or after commencement of bombay rent control amendment act, 1986 i.e. 1.10.1987 and not to the licence for residence given before 1.10.1987 but subsisting on that date. on my thoughtful consideration, for the reasons aforestated by me, with respect, i am unable to persuade myself to agree with the view of shri m.l. dudhat, j. in ravindranath h. hiremath's case (supra) that the provisions of section 13a-2 and part ita arc applicable to the licences though given earlier but were existing on the date of the coming into force of the bombay rent control amendment act 1986 and in my opinion the said view of shri dudhat, j. requires reconsideration by the division bench.7. however, present case is not a case where this controversy is involved. on the face of the averments made in the application in the present case by licensor it is not shown that the licence created w.e.f. 1.10.1983 continued or was in existence on and after 1.10.1987 when sections 6(4) and 13a-2 were introduced. rather it is a specific case set-out by the licensor in the application made under section 13a-2 that the period of licence expired on 1.8.1986 as per the agreement and licensor requested licensee on various occasions to vacate the premises on expiry of the licence agreement but, he did not vacate the same and continued to occupy the premises illegally. thus, it is not a case set-out by the licensor in the application that on 1.10.1987 the licence created in favour of licensee w.e.f. 1.10.1983 for a period of 33 months and expired on 1.8.1986 continued to exist and subsist on or after 1.10.1987. the competent authority has also held that the agreement provided the period of 33 months w.e.f. 1.10.1983 had expired before the commencement of the proceeding. thus, it is clear that the licence, according to licensor came loan end on 1.8.1986 and it was not subsisting on 1.10.1987. in this view of the matter in the present case the question referred by me in civil revision application no. 210/89 does not arise.7a. on the other hand, the present case is covered by the third category carved out by shri m.l. dudhat, j. in ravindranath h. hiremath's case (supra) in respect of licences created prior to 1.10.1987 and terminated prior to 1.10.1987, that section 13a-2 is not applicable. i find myself in respectful agreement with this view of justice dudhat in ravindranath h. hiremath's case (supra) that amendment to the bombay rent, hotel, lodging house rates (control) act by maharashtra act no. xviii of 1987 introduced on 1.10.1987 is not applicable in respect of licences created prior to 1.10.1987 and terminated prior to 1.10.1987 or which came to an end by efflux of time prior to 1.10.1987 or such licences which were not subsisting or existing on 1.10.1987.8. mr. bhosle, the senior learned counsel sought to draw much capital out of the contents of paragraph 6 of the affidavit filed by the licensee before the competent authority wherein he slated that as a matter of fact after expiry of the period of 33 months he continued to occupy the said flat on the same terms and conditions. this statement occurring in para 6 has to be read in entire context of para 6 wherein the licensee submitted that he was in fact not licensee in respect of the disputed flat, but was real tenant and he continued to occupy the premises in question as monthly tenant from month to month alter the expiry of the period of 33 months. from this statement in para 6, it cannot be inferred that the licence which expired on expiry of 33 months continued to exist thereafter. as already observed by me above, the primary facts stated in the application by the licensor do not disclose at all that the licence was subsisting or existing on 1.10.1987.9. section 5(4-a) which defines licence and pressed in service by mr. bhosle, learned senior counsel appearing for licensor also does not help the respondents herein.10. sub-section (4-a) of section 5 reads thus:(4a) 'licensee', in respect of any premises or any part thereof; means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a cooperative 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 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 employees or spouse not exceeding the standard rent and permitted increase for such premises, and any additional sum for service supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions 'licence', 'licensor' and 'premises given on licence' shall be construed accordingly;.11. as already observed above, on 1.10.1987 when the amendment was brought into effect under the rent control act, the licence was not subsisting and, therefore, the definition of licence has no relevance.12. for the aforesaid reasons, the order passed by the competent authority cannot be sustained and has to be set aside which i hereby do.13. civil revision application is accordingly allowed. the order passed by the competent authority, pune division, pune on 14.3.1989 and impugned in the present civil revision application is quashed and set aside. resultantly, miscellaneous application no. 27 of 1988 made by the respondents herein before the competent authority stands rejected. rule is made absolute in aforesaid terms. no costs.