Case Note & Summary
The petitioner, original plaintiff, filed a suit in the Small Causes Court, Bombay seeking a declaration that he was a protected sub-tenant of a shop premises known as 'Mascric Biddi Works' under the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947. The dispute arose from a conducting agreement dated 2/1/1966 entered into between the petitioner and the late husband of the respondent, followed by a similar agreement on 1/7/1967 with the respondent herself. These agreements were renewed from time to time, the last being on 14/2/1987, expiring on 14/1/1988. When the respondent demanded possession, the petitioner filed R.A.D. Suit No. 649 of 1988 on 12/2/1988. The trial court dismissed the suit on 3/8/1995, holding that the conducting agreement did not create a sub-tenancy. The petitioner challenged this dismissal by way of a writ petition. The High Court, after considering the submissions, held that the conducting agreement was merely a license and did not confer any right of sub-tenancy. The court noted that the petitioner failed to prove the ingredients of sub-tenancy and that the trial court's findings were based on proper appreciation of evidence. The writ petition was dismissed, affirming the trial court's decision.
Headnote
A) Rent Control - Sub-Tenancy - Conducting Agreement - Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 - The court considered whether a conducting agreement for running a business creates a sub-tenancy. Held that such an agreement is a license and does not confer any right of sub-tenancy or protection under the Rent Act. The plaintiff failed to prove sub-tenancy and the suit for declaration was rightly dismissed. (Paras 1-3)
Issue of Consideration
Whether a conducting agreement creates a sub-tenancy entitling the licensee to protection under the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947
Final Decision
Writ Petition dismissed. The trial court's order dated 3rd August 1995 dismissing the suit is upheld.
Law Points
- Conducting agreement does not create sub-tenancy
- Licensee cannot claim protection under Bombay Rent Act
- Burden of proof on plaintiff to establish sub-tenancy
Case Details
2005 LawText (BOM) (08) 161
Writ Petition No. 3521 of 1999
Mr. P.N. Joshi for the petitioners, Mr. U.S.R. Singh for the respondent
Shri Purshottam Shankar Shetye (since deceased through legal heirs Vasundhara Purshottam Shetye and Ujwala Hari Shinde)
Smt. Malti Rajaram Parshetye
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Nature of Litigation
Civil suit seeking declaration of protected sub-tenancy under the Bombay Rent Act
Remedy Sought
Petitioner sought declaration that he is a protected sub-tenant of the shop premises
Filing Reason
Respondent demanded possession of the shop after expiry of conducting agreement; petitioner claimed sub-tenancy rights
Previous Decisions
Trial Court (Small Causes Court, Bombay) dismissed the suit on 3rd August 1995
Issues
Whether a conducting agreement creates a sub-tenancy under the Bombay Rent Act
Whether the petitioner is entitled to protection as a sub-tenant
Submissions/Arguments
Petitioner argued that the conducting agreement amounted to a sub-tenancy and he was a protected tenant
Respondent contended that the agreement was a license and did not confer any tenancy rights
Ratio Decidendi
A conducting agreement is a license and does not create a sub-tenancy. The licensee cannot claim protection under the Bombay Rent Act as a sub-tenant. The burden of proving sub-tenancy lies on the plaintiff, which was not discharged.
Judgment Excerpts
The petitioner is the original plaintiff and the respondent is the original defendant.
The controversy revolving around a shop styled as 'Mascric Biddi Works' having measurement 9’ X 15’ situated at Dadar Mumbai.
The learned trial Court after considering the rival contentions, as well as, the evidence led by the parties, by an order dated 3rd August 1995, dismissed the suit for declaration as sought i.e. protected sub-tenant, as contemplated under Bombay Rent, Hotel And Lodging House Rates Control Act, 1947.
Procedural History
Petitioner filed R.A.D. Suit No. 649 of 1988 in Small Causes Court, Bombay on 12/2/1988. Trial Court dismissed suit on 3/8/1995. Petitioner filed Writ Petition No. 3521 of 1999 in Bombay High Court challenging dismissal. High Court dismissed writ petition on 9/8/2005.
Acts & Sections
- Bombay Rent, Hotel and Lodging House Rates Control Act, 1947:
