For claiming protection under section 15-A of the Bombay Rent Act, three requirements are necessary to be proved by licensee :---
(i) the person must be in possession on 1st day of February, 1973 ;
(ii) he must be in occupation of premises or part thereof which is not less than a room, and
(iii) he should be in possession as a licensee.
There is no dispute that the first two conditions are satisfied by defendant No. 1. The question is whether he is a licensee as contemplated by the provisions of section 5(4-A) of the Bombay Rent Actor not? Section 5(4-A) defines 'licensee' as follows :---
"5(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 having and 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 any employee or this spouse who or account of the exigencies of service or provision of a residence attached to his of her post or office is temporarily not occupying the premises, provided that he on she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, crache, 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".
This definition can conveniently be divided into three parts-(1) general; (2) inclusionary part and (3) exclusionary part. In this matter, I am concerned with the exclusionary part. The first part suggests the category of licensees who are in possession and control of the premises entirely. In other words, where a licensor does not retain any control over the premises and the dominant object in creating the license is to give the premises in occupation of the licensee entirely. The third part deals with those cases where possession is not given entirely to other party. It suggests that some control is retained by the licensor over the premises. This part mentions 'a person conducting a running business belonging to the licensor'. In such a case, the dominant object is not to give the premises in possession of the other party but to give the business for running the same and incidentally possession of the premises is handed over. The licensor does not lose his control over the premises entirely. The Chambers 20th Century Dictionary gives the meaning of 'conduct' as follows :---
"to lead or guide, to direct, to manage act or method of leading or managing, escort, management".
Similarly the New World Dictionary of Webster's gives the meaning of 'conduct' as "conducting skill supervising by using by one's executive skill, knowledge or wisdom - the process or way of managing or directing, management, handling."
This indicates that where the licensor primarily wants to take the advantage of the skill of the other party and, therefore, the business is given for the purpose of running, it can be said to be given for conducting. In effect, in all those cases, conductor is put in possession only for the purpose of running in view of his skill. In the present case, I find that it is not the case of the plaintiff that defendant No. 1 was given the business in view of his skill. Further, the premises were given entirely in the control of defendant No. 1. The plaintiff or his father did not retain any control whatsoever either in the premises or in the business. The business run in the shop was of the licensees. The plaintiff has not given one reason or mentioned any motive why the running business was given to defendant No. 1. All this indicates the dominant object in putting the defendant No. 1 in possession was to create licence in respect of the premises and not to give the running business for the purpose of mere conducting. In my view, the business was given in possession of defendant No. 1 incidentally along with certain articles. However, this does not obliterate the real intention and object of the parties i.e., to give the premises on license.
12. In my view, there must be some reason in giving the running business for conducting to the other person such as disability to conduct the business or the intention must be to give the business temporarily in possession of another for some reason. In that case one can say that the business belongs to licensor. If this is not so then the original landlord and licensor can collude to take advantage of shortage of accommodation and share in the benefits by putting the licensee out of reach of the provisions of Bombay Rent Act, or the licensor himself may pocket those benefits and in the process real landlord shall be deprived on the one hand and on the other such licensee shall be deprived of statutory protection completely. However, in both the cases the licensee shall be at the mercy of the other party. The sword of losing possession shall ever remain hanging on his head unless he satisfies the whims and demands of the other party. He may be in possession exclusively for decades and carry on business on his own, but he will have no protection. The very object of giving protection to licensees can be defeated with impunity if this is allowed. The present case can be a good illustration where no reason has been pleaded or pointed out why business was given for conducting. The licensor has acted as middleman only. This is not at all contemplated by the exclusionary clause of section 5(4-A).
13. In my opinion, it is necessary to give restricted meaning to this exclusionary clause contained insection 5(4-A) in view of the object of the Bombay Rent Act. The object of the Act is to give statutory protection to persons who are exclusively in possession of the premises. In fact, section 15-A was introduced by the Maharashtra Act 17 of 1973 with a view to widen protection and to include the licensees who were in possession on 1st February, 1973 of premises which was not less than a room under its protective umbrella. If restricted meaning is not given to this exclusionary clause, then the distinction between the licensee and the persons mentioned in that clause would be blurred and even those who were put in possession of the premises exclusively and doing their own business for years shall be excluded. It is not desirable. It is necessary to consider the dominant object or intention of the parties against the background of all the factors mentioned above. The courts below have failed in this.
14. In my view, the reasons given by the learned Judge of the Court below for holding that defendant No. 1 falls in the exclusionary part i.e., (i) name of the shop was not changed : (ii) some furniture and stock-in-trade was given to defendant No. 1 when he started business in the premises; (iii) the shop license stood in the name of plaintiff and (iv) defendant No. 1 never insisted that rent receipts should be issued in his name, are such that they do not militate against holding the defendant No. 1 as licensee failing in first part and protected. In fact, it was not necessary for defendant No. 1 to change the shop name since business was done in that name for long. He might have taken some furniture and stock-in-trade when started the business instead of buying new one. Further, in view of close relations the shop license might have continued in the name of plaintiff. It is not possible for me to accept these facts as indicating that the defendant No. 1 was a person merely conducting the running business belonging to the licensor and was falling under the exclusionary part of section 5(4-A).
15. In my view, therefore, the defendant No. 1 was a licensee squarely falling within the first part ofsection 5(4-A) and was entitled to get the protection under the Bombay Rent Act in view of section 15-A(i) as he has fulfilled all the three requirements as mentioned above by me.
Bombay High Court
Varisalli Mohammed Ilias vs Abdul Sattar Gulam Hussein (Since ... on 6 August, 1991
citations: 1992 (1) BomCR 27
Bench: P Patankar
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