Parineeta Chaudhari and ors. Vs. Mohammed HussaIn A. Furniturewalla - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the legal presumption under section 24 if applied on the basis of the said agreement it would necessarily follow that the petitioners were obliged to vacate the suit premises on expiry of the licence period in january, 2005. the petitioners have obviously failed to comply with the said obligation. according to the learned counsel for the respondent, however sub-section (2) of section 24 obligates the court to determine the damages in respect of the suit premises from the date when the delivery of possession of the suit premises had become due under the licence agreement which in the present case was 16th january, 2005. the argument clearly overlooks that sub-section (2) of section 24 is an enabling provision which authorises the competent authority to impose damages on the licensee who has continued to occupy the premises even after the licence period had expired.khanwilkar a.m., j.1. heard counsel for the parties.2. rule. rule made returnable forthwith by consent. mr. godbole waives notice for the respondent. as short question is involved, petition is taken up for final disposal forthwith by consent.3. this writ petition under article 227 takes exception to the judgement and order passed by the additional commissioner, konkan division, mumbai dated 4th february 2008 in appeal/desk/mrca/rev/345/07. by the said decision, the revisional authority was pleased to dismissed the revision preferred by the petitioners and instead confirmed the order passed by the competent authority (rent act) konkan division, mumbai in eviction application no. 49 of 2005 dated 28th june, 2007.4. it is not in dispute that the respondent is the owner of the property admeasuring 9,509 sq.ft which is the residential flat bearing flat no. 51 on the fifth floor along with two car parking spaces under the stilts of victoria apartment, st. alexious road, bandra. the respondent allowed the petitioner to occupy the said premises in terms of leave and licence agreement dated 25th march 2003 for a period of 22 months therefrom. inspite of expiry of the licence period, the petitioner continued to occupy the suit premises. not only that, petitioner filed suit for declaration that they are tenants in respect of the suit premises bearing r.a. declaratory suit no. 729 of 2005 in the small causes court at bandra. that suit was filed in october 2005. soon thereafter, respondent filed application before the competent authority under section 24 of the maharashtra rent control act for eviction of the petitioner who were occupying the suit premises as licensee in terms of leave and licence agreement dated 20th march 2003 which admittedly expired in january, 2005. in the said proceedings, the petitioners raised several issues. in that proceedings, the principal stand taken on behalf of the petitioners was that they were occupying the suit premises as tenants and not as licensee. that claim of the petitioner was on the assumption that inspite of expiry of the licence period in january 2005, the respondent owner neither called upon the petitioner to vacate the suit premises nor issued any legal notice and continued to accept the monthly rent from time to time. that conduct of the respondent amounted to waiver and acquiescing of the position that the petitioners were treated to be tenants in respect of the suit premises. the competent authority considered all aspects of the matter and applied the legal mandate in relation to the contents of the leave and licence agreement being conclusive proof in view of section 24 of the act especially explanation (b) under the said section. applying the said principle and on considering the documentary evidence on record, the competent authority proceeded to accept the case of the respondent that the petitioners overstayed the licence period and were liable to be evicted from the suit premises. the competent authority besides ordering the eviction of the petitioners further directed the petitioners to pay damages at the rate of rs. 56,000/- per month from 16th january, 2005 till handing over possession of the suit premises to the respondent. this decision of the competent authority dated 28th june 2006 was challenged before the revisional authority by way of revision under section 44 of the maharashtra rent control act. the said revision application has been dismissed by the revisional authority by the impugned judgement and order. the revisional authority has upheld the opinion expressed by the competent authority and found that no manifest error has been committed by the competent authority in passing the order of eviction against the petitioner and for that matter, requiring the petitioner to pay damages. the revisional court confirmed the order passed by the competent authority in its entirety. it is this decision which is the subject matter of the challenge under article 227 of the constitution of india.5. the first grievance of the petitioner is that the factum of waiver which was pleaded by the petitioners has been overlooked and not considered in its right perspective. according to the petitioners, the positive act of the respondent in not issuing legal notice to the petitioners after the licence period was over coupled with the fact that the respondent continued to accept the monthly compensation from the petitioners was indicative of the fact that the respondent had treated the petitioner as tenant in respect of the suit premises. this argument does not commend to me. in the first place, the plea of waiver has to be expressly pleaded and proved. in any case, the argument of waiver is unavailable in view of the statutory mandate which postulates that the agreement of licence in writing shall be conclusive evidence of the fact stated therein. from the leave and licence agreement dated 25th march, 2003, which was pressed into service before the court before, it is more than clear that the arrangement between the parties was purely one of leave and licence and the relationship created between the parties on account of the said transaction was that of licensor and licensee. the legal presumption under section 24 if applied on the basis of the said agreement it would necessarily follow that the petitioners were obliged to vacate the suit premises on expiry of the licence period in january, 2005. the petitioners have obviously failed to comply with the said obligation. the fact that the respondent owner continued to accept the monthly compensation after the licence period was over or for that matter did not issue any legal notice to the petitioners does not militate against the owner. that by itself will not be sufficient to positively hold that the relationship of parties that of licensor and licensee was converted to one of landlord and tenant so as to extricate the petitioner from the action under section 24 of the act. thus understood, no fault can be found with the view taken by the competent authority or for that matter, by the revisional authority in this behalf.6. the grievance of the petitioner that the revisional authority has not considered all the aspects of the matter which it was duty bound to consider is also devoid of merits. the revisional authority has adverted to the relevant aspects but proceeded to hold that the opinion recorded by the competent authority was a possible view and that there was no basis to depart from the said opinion. thus understood, no fault can be found with the approach of the revisional authority in rejecting the revision application for the reasons recorded in the impugned judgement.7. to get over this position, counsel for the petitioner has placed reliance on the decision of apex court in the case of (krishna bahadur v. purna theatre and ors.) reported in : (2004)iiillj555sc . this decision is of no avail to the petitioner. the decision merely restates the settled legal position regarding the principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert for a consideration. it has further asserted that whenever waiver is pleaded, it is for the party pleading the same to show that the agreement waiving the right in consideration of some compromise, came into being. statutory right, however may also by waived by this conduct.8. placing emphasis on this exposition it was argued that the conduct of the respondent owner in not issuing legal notice after the expiry of licence period or for that matter continuing to accept the monthly compensation from time to time was indicative of waiver of statutory right by the respondent to invoke action under section 24 of the act. in the first place, this is not the case made out in the written statement. the case made out in the written statement is one of the conduct of the respondent to indicate that the relationship of the parties in respect of the suit premises was one of landlord and tenant and not that of licensor and licensee.9. be that as it may, the fact that the respondent has instituted application under section 24 of the act almost after 11 months from the expiry of the licence period, does not by itself indicate that the respondent has waived his statutory right of eviction of the petitioner from the suit premises. counsel for the petitioners would then rely on the decision of the calcutta high court in (manicklal dey chaudhuri v. kadambini dassi) reported in a.i.r. 1926 cal. 763 wherein the calcutta high court has observed that acceptance of rent even after suit for ejectment is filed, amounts to waiver. that decision once again will be of no avail to the fact situation of the present case. there is legal presumption under section 24 of the act about the conclusiveness of the contents of the leave and licence agreement. once that legal presumption remains unshattered the question of accepting any other grievance of the petitioner would result in diluting the efficacy of the said legal presumption. as aforesaid, the fact that the respondent continued to accept monthly compensation even after january 2005 does not result in automatic creation of relationship of landlord and tenant between the parties in relation to the suit premises. something more positive has to be not only pleaded but also proved by the respondent to substantiate the stand that after expiry of the licence period the relationship was converted to one of landlord and tenant. that is completely lacking in this case. even if the case of the petitioners that the respondent continued to accept the monthly compensation amount without any demurr even after the expiry of the licence period is to be accepted, that would not necessarily lead to an inference that the relationship of the parties of licensor and licensee is converted to that of landlord and tenant as is suggested. that would merely indicate that the licensor allowed the licensee to overstay the licence period and nothing more. the relationship would still remain of licensor and licensee, in view of the initial entry of the petitioners in the premises as a licensee.10. counsel for the petitioner has then relied on the reported decision of our court (learned single judge) in the case of (ramesh @ bal dhondiba thorat v. vasant dashrathrao ursal) reported in 1997 vi ll.j. 596. the observations in that case will have to be considered in the context of fact situation of that case. in that case, the licence period had expired in july, 1990 whereas the application under section 13-a of the rent act was filed by the owner in the year 1997 after a period of over 7 years. it is in that context this court observed that the competent authority was bound to consider the contention raised on behalf of the applicant that a new relationship had come into existence by virtue of expiry of the original period and the correspondence exchanged between the parties coupled with the fact of acceptance of compensation/rent by the respondent therein.11. in the present case, however, the licence period expired in january 2005. indeed, respondent did not file application under section 24 with immediate despatch but waited till december 2005. it is also true that the respondent accepted the monthly compensation offered by the petitioners from time to time. that alone cannot be the basis to infer that the respondent agreed for change of relationship between the parties from one of licensor and licensee to that of landlord and tenant in relation to the suit premises. in the present case, the courts below have considered the defence of the petitioners in this behalf and rejected the. same. that is the finding of fact which would bind this court. merely because another view is possible or that there is some error here or there in the judgement under challenge, cannot be the basis to exercise writ jurisdiction under article 227 of the constitution of india. in so far as the finding recorded by the two courts below on the material issue as to whether the petitioners are liable to be evicted from the suit premises, i have no hesitation in upholding the same as just and proper and in accordance with the legal requirement.12. the next question however is whether the direction issued by the competent authority requiring the petitioner to pay damages at the rate of rs. 56,000/- per month from 16th january 2005 till handing over of possession of suit premises to the respondent can be sustained. in my opinion, the court below have committed manifest error in granting that relief without considering the fact that after expiry of the licence period in january 2005, the respondent did not call upon the petitioners to vacate the suit premises nor informed them that they would be liable to pay damages for continued possession. besides the respondent filed application for eviction only on 10th december 2005. if it is so, the respondent could succeed in getting damages from the petitioners at double the rate of the licence charges of the premises fixed on the agreement of licence only from december, 2005 and not for the anterior period. according to the learned counsel for the respondent, however sub-section (2) of section 24 obligates the court to determine the damages in respect of the suit premises from the date when the delivery of possession of the suit premises had become due under the licence agreement which in the present case was 16th january, 2005. the argument clearly overlooks that sub-section (2) of section 24 is an enabling provision which authorises the competent authority to impose damages on the licensee who has continued to occupy the premises even after the licence period had expired. that relief will have to be granted to the licensor keeping in mind other relevant facts, if any. in the present case, as aforesaid, the respondent did not issue any legal notice whatsoever nor called upon the petitioners to vacate the premises immediately after the licence period had expired in january, 2005 but chose to file said application only on 10th december, 2005. for that reason, the respondent would become entitled for relief of damages only from the date of filing of the application on 10th december 2005 and not for the anterior period.13. the next question is whether the quantum of rs. 56,000/- determined by the competent authority towards damages to be paid on month to month basis by the petitioner can be said to be appropriate. it is not in dispute that the licence agreement in relation to the suit premises provides for monthly charges at rs. 18,000/-. the fact that there is additional agreement between the parties in relation to furniture and fixtures where-under the petitioners are liable to pay charges at rs. 10,000/- per month cannot be reckoned for the purpose of computing damage for the purpose of section 24(2) of the act. for the damages under section 24(2) of the act are in relation of continued occupation of the 'suit premises' even after the expiry of the licence period. no more and no less. if it is so, the direction issued by the competent authority to the extent of requiring the petitioner to pay monthly damages at the rate of rs. 56,000/- (which is inclusive of damages for using the furniture and fixture) cannot be sustained. instead, it will have to be held that the petitioners would be liable to pay damages in respect of suit premises with effect from 16th december 2005 at the rate of rs. 36,000/- per month (twice the rate of licence charges i.e. rs. 18000/- for the 'suit premises') till handing over of possession of the suit premises to the respondent.14. accordingly, this writ petition partly succeeds. rule is made partly absolute in the following terms:(i). the impugned judgement and order directing the petitioners to hand over vacant and peaceful possession of suit premises i.e. flat no. 51, 5th floor, victoria apartment, c.t.s. no. c/545, village bandra, st. alexious road, bandra (w) mumbai 400 050, to the respondent is upheld and confirmed.(ii) the direction issued by the competent authority to the petitioners to pay damages in respect of the suit premises is modified to the effect that the petitioners shall pay damages in respect of the suit premises at rs. 36, 000/- per month with effect from 16th december 2005 till handing over of possession of the suit premises to the respondent.(iii) it is further ordered that the petitioners shall be liable to pay monthly compensation in respect of the suit premises from 16th january, 2005 till 15th december 2005 at the rate of rs. 36, 000/- per month as per the licence agreement.(iv) the petitioners would be entitled to adjustment of amount already paid by the petitioners either to the respondent or deposited in the court as the case may be.(v) in so far as the respondents claim of compensation in respect of furniture and fixtures as per the additional agreement entered between the parties, it will be open to the respondent to take recourse to such other remedy as may be permissible in law. all questions in that behalf are kept open.(vi) the direction issued by the competent authority that the respondent is at liberty to appropriate the amount of security deposit towards the arrears of damages is also upheld and confirmed by this order.(vii) petition disposed of on the above terms with costs.15. at this stage, counsel for the petitioner submits on instructions that petitioners are inclined to carry the matter in appeal before the apex court. for that purpose, it is requested that the possession of the petitioners be protected.16. there is no difficulty in accepting this request. however, the same is acceeded on condition that the petitioners shall deposit the entire arrears in terms of this order in this court within four weeks from today. it is ordered that the possession of the petitioners shall not be disturbed in respect of the suit premises till 24th october 2008 subject to petitioners filing usual undertaking in this court within two weeks from today and comply with the order of deposit as aforesaid.