as a licensee, the only question that remains to be considered is whether such
licensee would be covered by the term “tenant” as defined in Clause 2(5) of
the Rent Control Order. As per Clause 2(5), a person by whom or on whose
account rent is payable for the premises is a tenant. It cannot be disputed
that the appellant is in possession of a stall that is given on license and hence
he is in possession of premises as defined by Clause 2(4A)(b) of the Rent
Control Order. However, merely because the appellant is occupying the
stall which is “premises” under Clause 2(4A)(b) of the Rent Control Order
that by itself would not make him a tenant of said premises. The documents
on the basis of which he was inducted show that he was a licensee as found
herein above. Merely because electrical energy charges are included in the
amount of rent as urged by relying upon Clause 10 of the Rent Control Order,
that would not change the nature of the appellant's occupation. Under
Clause 13(1)(a) of the Rent Control Order, written permission of the
Controller is necessary for determining the lease after giving notice to the
tenant. Clause 13(1)(a) reads as under:
“Clause 13(1): No landlord shall, except with the
written permission of the Controller
(a) give notice to a tenant determining the lease or
determining the lease if the lease is expressed to be
determinable at his option; or”
Thus, if the lease of a tenant is required to be determined only then written
permission of the Controller would be necessary.
The matter can be viewed from another angle. Under Clause
13(1) of the Rent Control Order, written permission of the Rent Controller is
necessary before giving a notice determining the lease. After obtaining such
written permission, the lease can be determined by issuing notice under
Section 106 of the Transfer of Property Act. However, for determining a
'licence', no written permission of the Rent Controller is necessary. The
distinction between a lease and a licence is well recognised. As noted above,
the possession of the appellant was on the basis of licence deeds at Exhibits
38 to 40 and for determination of said licence, there was no requirement of
obtaining the written permission of the Rent Controller.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 194 OF 2010
Suresh Champatrao Chincholkar,
VERSUS
Magan Sangrahalaya Samiti,
CORAM: A. S. CHANDURKAR J.
Dated : DECEMBER 04, 2014.
Citation: 2015(3)MhLj744, 2015(7) ALLMR338
