TMI Blog1981 (1) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ended from time to time. By an agreement dated November 5, 1972, the original agreement was extended for a period of eleven months from January 1, 1973. The 'leave and licence' agreement was thus in force on February 1, 1973, with effect from which date S. 15A was inserted in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by an amendment (Maharashtra Act 17 of 1973). The effect of S. 15A was that any person who was in occupation of any premises on February 1, 1973 as a licencee was deemed to have become, on that date, for the purposes of the Act, a tenant of the landlord, in respect of the premises or part thereof in his occupation. On April 28, 1979, the first respondent purported to terminate the 'leave and licence' agreement and called upon the appellant to hand over possession of the Studios to the first respondent. Immediately, on May 8, 1979, the appellant filed Declaratory Suit No. 2326 of 1979 in the Court of Small Causes, Bombay, praying for a declaration that the plaintiff-appellant was a monthly tenant of the two studios and all other structures and open land covered by the agreement and for fixation of standard rent and other reliefs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act were not attracted at all. For a clear appreciation of the rival submissions, the relevant provisions of the Bombay Rent, Hotel Lodging House Rates Control Act, 1947, may first be set out. Section 5(4A) defines a licensee as follows: (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 in a hotel, lodging house, hostel, guest house, club, nursing home, hospital sanatorium, dharmashala, home for widows, orphans or like premises, marri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (1) In areas specified in Schedule I, this part shall apply to premises let or given on licence for residence, education, business, trade or storage. Sec. 15A which deems certain licensees in occupation of premises on 1.2.1973 as tenants says: 15A. (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 manner the operation of sub-section (1) of section 15 after the date aforesaid. Sec. 28(1) which prescribes and prohibits the jurisdiction of certain Courts says: 28(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery or equipment must necessarily go alongwith the building if it is to be used for the business. If premises did not, by definition include a building given on licence but meant only a building which was let, it could perhaps be argued with great force that the expression premises would not take within its stride a business let as a business, but the situation is changed by the inclusion of any building given on licence in the definition of premises , and by the deeming of a licensee as a tenant under S. 15A of the Act. A licensee is not really a tenant but is a person deemed to be a tenant because of Sec. 15A of the Act. A building in which a person is licensed to run a business is premises within the meaning of S. 5 (8) and 5 (8A), to which Part II of the Act is made applicable by S. 6(1) notwithstanding the fact that the building is not let as such. Shri Mridul relied upon Uttamchand v. S. M. Lalwani and Dwarka Prasad v. Dwarka Das Saraf in support of his contention that having regard to the definition of premises the licensee of a business or industry which is carried on in a building cannot be considered to be the licensee of the premises as such, indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paratus and fittings including, 'subsidiarily and incidentally', the building. It will be seen that in both the cases there was no question of a licence, nor any question of a licensee being deemed to be a tenant. The question concerned a lease and the question was whether what was demised was a business or a building as such. If what was intended to be demised was a business, the Act would not apply. If what was intended to be demised was a building the Act would apply. The test of dominant intention was applied and it was found in each of the cases that the lease was of a business and not of accommodation'. The question in the present case is entirely different and is one of construction of the provisions of the Bombay Rent, Hotel Lodging House Rates (Control) Act, 1947, which deem a licensee to be a tenant and, by definition, include a building or a part of a building given on licence within the meaning of the expression premises , and, expressly make the Act applicable to premises given on licence for business. We are of the view that the Bombay Rent, Hotel Lodging House Rates (Control) Act, 1947, applies to a licence to use a building even if the building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Studios and other premises, machineries and equipments were to be used by the licensees in a prudent manner. The agreement further stipulated that no tenancy rights were to be understood as having been created by the licensors in favour of the licensees. The interest created was that of licensees only. The licensees were to carry on their business of motion picture films' production in the licensed premises under the name and style of Natraj Studios (P) Ltd. The agreement is thus seen to be a composite agreement which gave 'leave and licence' (1) to use the studios and other premises for producing films and (2) to use the machinery and equipment for the same purpose. The licensors parted with possession of the Studios and the machinery in favour of the licensees. Notwithstanding the fact that the agreement was a composite one and the two licences were to operate 'simultaneously and together', there could be no gainsaying the fact that the Studios and other premises were certainly given on licence for the business of producing films. The parties themselves were conscious that the licence granted by the licensor in favour of the licensee was in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Small Causes and jurisdiction is denied to other Courts (1) to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises, (2) to try any suit or proceeding between a licensor and a licensee relating to the recovery of licence fee or charge, (3) to decide any application made under the Act and, (4) to deal with any claim or question arising out of the Act or any of its provisions. Exclusive jurisdiction to entertain and try certain suits, to decide certain applications or to deal with certain claims or questions does not necessarily mean exclusive jurisdiction to decide jurisdictional facts also. Jurisdictional facts have necessarily to be decided by the Court where the jurisdictional question falls to be decided, and the question may fall for decision before the Court of exclusive jurisdiction or before the Court or ordinary jurisdiction. A person claiming to be a landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant within the meaning of the Act subsists between the parties. The Courts which have jurisdiction to entertain and try such a suit are the Courts specified in S.28 and no other . In Raizada Topandas Anr. v. M/s. Gorakhram Gokalchand the plaintiff instituted a suit in the City Civil Court, Bombay, against the defendant for a declaration that the plaintiff was in lawful possession of a shop and for an injunction restraining the defendants from entering the shop. The plaintiff alleged that the defendant was licensee for a definite term of years and that the period of licence stipulated under the agreement had expired (The suit was instituted before S.15A was introduced into the Act by the 1973 amendment). The defendant's plea was that there was a relationship of landlord and tenant between the parties and that the Court of Small Causes alone had jurisdiction to try the suit and not the City Civil Court. It was held by this Court that since the plaintiff did not admit the relationship of landlord and tenant between him and the defendant, the defendant could not, by his plea force the plaintiff to go to a forum where, on his own averments, he could not go. The Court, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Maharashtra Cooperative Societies Act and the jurisdiction of the Court of Small Causes under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Court held that whether or not the Registrar of Co-operative Societies was a 'Court' whose jurisdiction was ousted under S.28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the jurisdiction of the Registrar was surely ousted on broader considerations of public policy. The Court pointed out that the Rent Act had a specific social objective in view and for the achievement of that objective it was necessary that the Court set up under the Rent Act alone should deal with a dispute between a landlord and a tenant and that in accordance with the provisions of the Rent Act. Necessarily, the jurisdiction of the Registrar was ousted. The Court said (at pp. 901, 902); The scheme of the various Rent Acts and the public policy underlying them are clear; the policy is to give protection to the tenants. Various powers have been conferred on the authorities under the Rent Acts to grant protection to the tenants against ejectment and other reliefs claimed by the landlords ...... If the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Rent Act that the question would arise to be determined by the High Court whether the relationship between the plaintiff and the defendant in the particular case before it was that as between landlord and tenant. If it came to the conclusion that it was not so, it would continue to have the jurisdiction to try the suit and would be able to try the suit on the merits to its logical conclusion. If, on the other hand, the High Court came to the conclusion that the relationship between the plaintiff and the defendant was as between landlord and tenant it would cease to have jurisdiction on that determination and the suit would be liable to be transferred to the Small Causes Court which, under s. 28 of Bombay Act LVII of 1947, would be the only Court to have jurisdiction to try the suits as between landlords and tenants falling within the purview of s. 28 . In Sabavva Kom Hanmappa Simpiger v. Basappa Andaneppa Chiniwar, the question directly arose, as in the present case, whether s. 28 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947, excluded reference to arbitration of a dispute relating to recovery of rent or possession of premises. It was held by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Small Causes and if the respondent wanted to rely upon the arbitration clause an application under s. 34 of the Arbitration Act should have been made to the Court of Small Causes before the written statement was filed. That was not done. It was said that the Court of Small Causes would have no jurisdiction to stay the proceedings under s. 34 of the Act as it was precluded from exercising any jurisdiction over arbitration proceedings under s.40. There is no substance in this argument. S. 40 of the Arbitration Act declares that a Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising thereout. We do not see how it can be said that the Court of Small Causes is exercising jurisdiction over any arbitration proceedings merely because the agreement between the parties contains an arbitration clause and the Court is asked to stay a proceeding before itself. The jurisdiction under s. 34 may be exercised by the judicial authority before which the proceedings are pending and not by the Court which has jurisdiction over the arbitration proceedings. This is clear from the language of s. 34 of the Arbitration Act. An application under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
