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TMI Blog1976 (8) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt does, as it ought to, act with restraint and is loathe to pass any harsh or unpalatable remark concerning the judgment of a High Court. But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make some strong observations when it finds the judgment of the High Court running galore with gross and palpable mistakes of law almost amounting to judicial imbalance in the approach to the case. We regret to say that this is one such case. The appellants had allowed the respondents to occupy the shop premises in question which are situated outside Swadeshi Market, Kalbadevi Road in Bombay under certain agreements of leave and licence which were renewed from time to time. The last agreement was dated April 30, 1965. Duration of the period of licence mentioned in this agreement was in the following terms: (1) This agreement shall be deemed to have commenced from 1st May 1965 and shall remain in force for 11 months and will automatically come to an end on 31st March, 1966 on which day the Party of the Second Part shall remove himself from the premises of his own accord with all his articles and belongings and in event of the Party of the Seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 42A(2) of the S.C.C. Act. By a reasoned order dated December 11, 1972 the appellate Bench upheld the finding of the single Judge and summarily dismissed the appeal. The respondent filed a writ application in the High Court which after hearing the appellants was dismissed on July 3, 1973. The Bombay Rent Act was amended by Maharashtra Act 17 of 1973. By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973 the status and protection of a tenant under the Bombay Rent Act. The respondent, thereafter, by an amendment of his written defence filed in the Small Cause Court proceeded to take the additional plea of protection under Maharashtra Act 17 of 1973. Although the amendment was not fully and effectively allowed by the Small Cause Court Judge, the parties had proceeded on the footing that such a plea became available to the respondent. A learned single Judge of the Small Cause Court held that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March, 1966 the leave and licence agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and to remove his goods which he had been allowed to place on such property. In spite of being asked by the appellants to do so the respondent did not pay any heed. Hence the appellants took recourse to section 41 of the S.C.C. Act. The remedy of section 41 is available only after the permission or the licence granted to the licensee to go on the property has been withdrawn or revoked. If the occupant of the property is not able to show any sufficient cause then order for possession follows under section 43. We now proceed to quote the relevant words of section 5(4A) of the Bombay Rent Act: 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 ........ The inclusive clauses thereafter in the definition of the 'licensee' do not include a licensee in occupation of the premises whose licence already come to an end and in such a case the occupant would not be a licensee under a subsisting agreement. We now proceed to read section 15A: ( 1 ) Notwithstanding anything contained elsewhere in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to deposit in Court ₹ 29/per month which he did. We are happy to note that the learned Judge has rightly not rested his judgment on this ground of deposit of rent by the respondent. There was nothing to show in the records of this case that the appellants had ever accepted any money either in or outside court from the respondent after 31st of March, 1966 by way of any rent of the licenced premises. A person continuing in occupation of such premises after revocation of the licence is still liable to pay compensation or damages for their use and occupation. If at any time such compensation had been paid or accepted it could not undo the effect of the revocation of the licence. In the seventh paragraph of the judgment the learned Judge says: In my judgment the filing of the proceeding under section 41 without terminating the licence and/or the permission granted to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises. There are two infirmities in the said observation. Firstly, according to the appellants' case the licence stood revoked and withdrawn and then they filed the application under section 41 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally make the petitioner's occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises. Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent a right to continue to occupy the premises till he was evicted by an order under section 43. Such a novel proposition of law is beyond our comprehension. If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion. In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say: The fact that the earlier agreement of licence expired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973. It is difficult to understand what furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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