The case of Dali Kavas Gai vs Minoo Rustomji Shroff cited by Burjor Antia ("Camouflaged tenancies — II,” Parsiana, August 21, 2013) can easily be differentiated from the case of C. M. Beena and Another vs P. N. Ramachandra Rao cited by me.
In Dali Gai’s case he tried to mislead the Court by claiming that the licence agreement was not an agreement but an application, which stand was contrary to his own pleading as noted by the High Court, which observed in para 13: "It will be material to note that the respondent himself had filed RAD Suit No. 1013/1995 in the Court of Small Causes seeking declaration that he was a tenant. In para 1 of that plaint, he had clearly admitted that the agreement dated 29.4.1993 was entered into. In that suit, he had filed copy of the agreement dated 29.4.1993. It shows that respondent had always treated the said document Ex A-1 as an agreement and not as an application.”
The order of the High Court was challenged in the Supreme Court which refused to admit the Special Leave Petition and dismissed it without giving a reasoned order. Thus, there is no authoritative pronouncement of the law by the Supreme Court in Dali Gai’s case.
In contrast, in the case of C. M. Beena, the Supreme Court has given a reasoned order, wherein it has observed:
"Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the Rent Control legislation... Though the so-called licence expired in 1982 the respondent did not insist on the appellant putting back the respondent in possession of the premises but allowed him to remain in occupation and to continue to do so for a period of about seven years till the date of the institution of the suit... We hold the relationship between the parties to be of landlord and tenant and the possession of the appellant over the premises as that of a tenant.”
Thus, the law has been been laid by the Supreme Court through a reasoned judgment in the case of C. M. Beena, and not in the case of Dali Gai where the Special Leave Petition was dismissed without being admitted.
Readers can access these judgments at the following links: Bombay High Court judgment in Dali Gai’s case: http://indiankanoon.org/doc/299845/; Supreme Court order in Dali Gai’s case: http://courtnic.nic.in/supremecourt/temp/sc%201498808p.txt; Supreme Court judgment in C. M. Beena’s case: http://judis.nic.in/supremecourt/imgst.aspx?filename=20878. This will help them to come to their own conclusion regarding the correct legal position. JEHANGIR GAI
jehangir_gai@hotmail.com
At Parsiana’s request solicitor Burjor Antia of Mulla and Mulla and Craigie Blunt and Caroe responds to Jehangir Gai:
We would like to clarify that, on comparison of the facts in C. M. Beena and Another vs P. N. Ramachandra Rao, which was strongly relied upon by Jehangir Gai, and the cases regarding leave and licence agreements executed by the Bombay Parsi Punchayet (BPP) with their occupants, the matters are not the same, but like chalk and cheese.
Here are the distinctive facts of both cases. In the matter of C. M. Beena the landlord was a private party and the premises allotted was for commercial purposes in a business locality. Further, initially the premises were allotted on monthly tenancy basis in the month of April 1972 and thereafter a leave and license agreement was executed on April 1, 1981 for a period of one year. In contrast, the BPP is a public charitable trust and the decision with regard to allotment of premises on leave and license basis is recorded in the resolution passed by the trustees which categorically reflects the intention of the parties of creating leave and license only.
Also in some of the properties of the BPP the donors have themselves categorically stipulated in the will/transfer deeds that the land on which buildings are to be constructed from their donation should be allotted on leave and license basis only.
The premises allotted by the BPP since inception are on leave and license basis only and not otherwise as in the case of C. M. Beena and Another vs P. N. Ramachandra Rao. Thus, the apex Court’s judgment in the case of C. M. Beena ipso facto will not be applicable to the above facts and circumstances of BPP cases.
In the case of Dali Kavas Gai vs Minoo Rustomji Shroff and Others (BPP) the Bombay High Court has categorically discussed several terms and conditions of the leave and license agreement executed between the trustees of the BPP and its allottees and has come to the conclusion that the agreement executed by Dali Gai is purely leave and license and ruled out the case of tenancy. In the said case also the license period had expired in November 1993, though the licensee continued in possession of the premises and the advocate’s notice was sent on October 6, 1995. Despite this, the case of tenancy put forth by Dali Gai was rejected by the Bombay High Court in a detailed and reasoned judgment.
There is also great distinction on law points in both the above discussed cases. The case of C. M. Beena arises purely out of the provision of the Transfer of Property Act 1882 which is a general law, whereas in Maharashtra cases of tenancy and leave and license are governed by the provisions of Maharashtra Rent Control Act, 1999. As per Explanation (b) of Section 24 of the said Rent Act an agreement of license in writing shall be conclusive evidence of the fact stated therein. This law point has been discussed and settled in several case laws. Thus, when there is a special Act the same will prevail over the general law as per the principles of interpretation of statute. The occupation of the licensees after expiry of the license period in law amounts to rank trespass and they can be evicted by due process of law within 12 years as prescribed under law of limitation.
In the circumstances, the clarifications given by Jehangir Gai in response to my earlier note is misconceived in fact and in law and is not consistent with the prevailing law of the land.
Parsiana had requested BPP chairman Dinshaw Mehta to clarify the reason for refusing to renew Dali Gai’s leave and licence agreement. A reference was made to his case in our issue dated August 21, 2013. Mehta wrote to Parsiana on August 29, 2013:
"Dali Gai was allotted Flat No. D-2/44, Multi-storey Building at Bharucha Baug on April 29, 1993 on leave and licence basis with auto renewal clause. The flat was allotted to him on his representation that he was staying in railway staff quarters and had to vacate due to the impending retirement of his wife from railway service.
"After allotment of the flat we learnt that Dali Gai had an ownership flat in his name, Flat No. 503, A Wing, Gangotri Jangid Complex, Mira Road, Bombay, which was confirmed on investigation. This is why his leave and licence agreement was terminated and a suit was filed for suppressing the fact that he had an ownership flat and because he had obtained the BPP flat by fraud as he had given an affidavit stating that he had no right to either rental or ownership flat, as is normally taken from allottees.”