TMI Blog1991 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Bombay (for short, `the flat') on a monthly rent of ₹ 1,000 (Rupees one thousand) on 10.6.1969. On the same date the appellant, under the Society's rules, applied for its nominal membership stating, inter alia, that he intended to take the flat for temporary use and occupation; that he would not claim any right of permanent nature; and that he would vacate the flat on receipt of notice thereof. By an agreement of leave and licence dated 11.6.1969 entered into between the appellant and Advani, the appellant took exclusive possession of the flat. The agreement was for a period of 11 months and was renewable for 2 further periods of 11 months each. Vide Resolution No. 208 dated 13.6.1969, the Managing Committee of the Society granted the permission. By letter dated 22.1.1972 Advani purported to terminate the licence with effect from 10.3.1972 and asked the appellant to vacate the flat and the appellant having not acceded to the request, Advani informed the Society, which, vide letter dated 22.2.1972 required the appellant to vacate the flat and to deliver possession thereof to Advani on or before the 10th March, 1972. The appellant instead of vacating the flat file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of lease with all its ingredients and not one of leave and licence; that the agreement having been a lease the cooperative Court had no jurisdiction in respect thereof and it was the Civil Court envisaged under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 that would have jurisdiction in the matter; and that even assuming that the Cooperative Court had jurisdiction in respect of a leave and licence created under the provisions of the Act, that Court would not have jurisdiction in this matter, the appellant being only a nominal member and not a tenant member of the Society. Mr. L.A. Kripalani, the learned counsel for the respondents, submits that the agreement was one of leave and licence and not of lease; that in the matter of the agreement the Cooperative Court alone has jurisdiction and no other court; and that being a nominal member of the Society in view of his application for such a membership the appellant would come within the jurisdiction of the Cooperative Court. The first question to be decided in this appeal, therefore, is whether the agreement dated 11.6.1969 was one of lease or of leave and licence. In the agreement dated 11.6.1969 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 22. That the `Licensee' will not surrender their rights under this agreement in favour of anyone else except the `Licensors'. That the `Licensees' shall observe all rules, regulations, and by-laws of the Shyam Cooperative Society as nominal members during the period of this licence. From the above recitals and the terms and conditions there is no doubt that ex facie it is one of leave and licence for use of the flat and fixtures, fittings, furniture etc. and that the licensee would at no time claim tenancy or sub-tenancy in respect of the flat. There is also no doubt that in his application for nominal membership, the appellant stated that he intended to take the flat for temporary use and occupation and that he would not claim any right of permanent nature. In the Managing Committee Resolution No.208 dated 13.6.1969, the appellant was admitted as a nominal member of the Society and was permitted to temporarily occupy the flat. Thus, there appears to be no room for contending, contrary to the terms of the agreement, that the agreement was a lease and the appellant was a tenant of Advani, as such the Bombay Rents, Hotel and Lodging House Rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation of or relation to any cooperative society and laws governing members thereof, whereas in the instant case admittedly Advanai was a tenant co-partner member of the Society and the appellant by virtue of the agreement of licence was also admitted to nominal membership accepting his statement in his application. While interpreting the agreement we have also to see what transpired before and after the agreement. Ex praecedentibus et consequentibus optima bit interpretation. The best interpretation is made from the context. It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done. As was said in N.E. Railway v. Hastings, [1900] A.C. 260(267): The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title. Lease has been defined in section 105 of the Transfer of Property Act as under: A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The essential elements of a lease are: 1. the parties 2. the subject matter, or immovable property 3. the demise, or partial transfer 4. the term, or period 5. the consideration, or rent. The relationship of lessor and lessee is one of contract. In Bacon's Abridgement, a lease is defined as a contract between the lessor and the lessee for the possession and profits of land, etc., on the one side and recompense by rent or other consideration on the other. Hence it has been held that a mere demand for rent is not sufficient to create the relationship of landlord and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord. We do not agree with the submission in an unqualified form. There have been cases where exclusive possession has been given outside the Rent Act. In Isaac v. Hotel De Paris, Ltd., [1960] (1) All E.R.348, the respondent company owning the hotel de Paris where the lessees of another building called the P.Hotel, it was held that the respondent company were entitled to an order for possession because the relationships between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P.Hotel with no interest in the land at all, and this privilege came to an end with the notice of May, 1956 and that after the notice the appellant remained in occupation at sufferance, and, in the circumstances, the acceptanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived title under a tenant before the 1st day of February, 1973; (aa) any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted, under section 15; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the 1st day of February, 1973; (bb) such licensees as are deemed to be tenants for the purpose of this Act by section 15A; (c) xxx xxx xxx xxx xxx xxx Thus the above sub-section (bb) read with section 15A of the Rent Act makes the `tenant' one of status and not of contract. the licensee has been conferred the status of a tenat. This reminds us of what Sir Henry Maine observed in Ancient Law. The movement of progressive societies had been from status to contract . But Lord Simmonds pointed out in Johnson v. Merston, [1978] 8 All E.R. 37, that since the days of Maine, the movement of the progressive societies in various fields, has been almost the reverse, that is, from contract to status. With acute dearth of accommodation and dire need for it people may agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e use of the property. The definition in the Rent Act includes any person in occupation under a subsisting agreement for licence given for a licence fee or charge of any premises or part thereof in a building vesting in or lease to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960. The appellant would, otherwise, be included within this definition. But he has no subsisting licence, the same having been cancelled on 10.3.72. Section 15A of the Rent Act which was inserted by Maharashtra Act 17 of 1973 provides: Certain licensee in occupation on 1st February 1973 to become tenants. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation . (2) The provisions of sub-section (1) shall not affect in any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rights of contractual tenant including the right to create licence even if he was transferor of an interest which was not in fact the transfer of interest. If the licence have been created before February 1, 1973, the licensee must, by the express terms of section 15A of the Rent Act be deemed to be a tenant and he should, subject to provisions of the said Act be deemed tenant of the landlord on the terms and conditions of the agreement consistent with the provisions of the Act. At paragraph 58 of the report it was observed that there was no reason and there was nothing in the Rent Act or the Statement of Objects and Reasons to indicate that restricted meaning to the expression licence should be given. As the amended section said that whoever was in possession as a licensee should be deemed to have become for the purpose of the Act the tenant of the landlord and there was no warrant to restrict the ordinary meaning of that expression. If the restricted meaning was given then the apparent scheme or the purpose for introduction of the amendment would be defeated at least to a large section of licensees who were contemplated to be protected, as the objects of the Act sought to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society or a person who claims to be a member of the society. xxx xxx xxx xxx xxx xxx Under the above provision the matter of eviction of the appellant by the tenant co-partner member of the society can be said to be touching the business of the society. In Deccan Merchants Cooperative Bank Ltd. v. M/s Dalichand Jugraj Jain Ors., [1969] (1) SCR 887, it has been held that the word business in the expression `touching the business of a society' in section 91 (1) does not mean affairs of the society. It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws. It was, however, held that section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of section 26 of the Bombay Rents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsisting licence. It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of the respondent No. 1 on 10.3.1972. That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of section 15A of the Rent Act and could not, therefore, plead the bar of section 28(1) thereof. In Hindustan Petroleum Corporation Ltd. Anr. v. Shyam Cooperative Housing Society Ors., [1988] 4 SCC 747, at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under section 15A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar's case (supra). The proceedings initiated under section 91 were accordingly quashed. This case is, therefore, distinguishable on facts. Following Bhatnagar's case in Smt. Krishna Rajpal Bhatia and Ors. v. Miss Leela H. Advani Ors., [1989] 1 SCC 52, where a tenant co-partner member of a registered co- partnership type co ..... 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