PRABHUDAS DAMODAR KOTECHA Vs MANHARBALA JERAM DMODAR
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: SLP(C) No.-020763-020764 / 2007
Diary number: 30290 / 2007
Advocates: Vs
T. MAHIPAL
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 6726-6727 OF 2013 (Arising out of SLP (Civil) NO.20763-764 OF 2007)
Prabhudas Damodar Kotecha & Ors. …. Appellants
v.
Manhabala Jeram Damodar & Anr. ...Respondents
J U D G M E N T
K. S. Radhakrishnan, J
Leave granted.
2. We are, in these appeals, concerned with the question
whether a suit filed by a licensor against a gratuitous licensee
under Section 41(1) of the Presidency Small Causes Courts Act,
1882 (for short “the PSCC Act”), as amended by the Maharashtra
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Act No.XIX of 1976 (for short “1976 Amendment Act”) is
maintainable before a Small Causes Court, Mumbai. .
3. The Division Bench of the Bombay High Court in Ramesh
Dwarikadas Mehra v. Indirawati Dwarika Das Mehra (AIR
2001 Bombay 470) held that a suit by a licensor against a
gratuitous licensee is not tenable before the Presidency Small
Causes Court under Section 41 (1) of the PSCC Act, and it should
be filed before the City Civil Court or the High Court depending
upon the valuation. The Division Bench held that the expression
“licensee” used in Section 41(1) of the PSCC Act has the same
meaning as in Section 5 (4A) of the Bombay Rents, Hotels and
Lodging House Rates (Control) Act, 1947 (in short “the Rent
Act”). Further it was held that the expression “licensee” as used
in Section 5(4A) does not cover a gratuitous licensee. The
Division Bench in that case rejected the ejectment application
holding that the Small Causes Court at Bombay lacked
jurisdiction.
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4. In Bhagirathi Lingawade and others v. Laxmi Silk Mills,
in an unreported judgment of the Bombay High Court dated
03.09.1993, another Division Bench of the Bombay High Court
expressed the view that Section 5(4A) and Section 13(1) of the
Rent Act, 1947 are not at all relevant in interpreting the scope
and ambit of Section 41 of the PSCC Act, under which suit was
filed.
5. The Full Bench of the Bombay High Court, which is the
Judgment under appeal, reported in 2007 (5) Maharashtra Law
Journal 341, answered the question in the affirmative overruling
the Ramesh Dwarikadas Mehra case (supra), the legality of
which is the question, that falls for our consideration.
FACTUAL MATRIX
6. Respondent Nos.1 and 2 along with other plaintiffs (who are
now deceased) filed a suit L.E. and C. No.430/582 of 1978 under
Section 41 of the PSCC Act before the Small Causes Court,
Bombay against the appellants (original defendants) for recovery
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and vacant possession of one bed room in Flat No.16, Ram Mahal,
Churchgate, Mumbai and also for other consequential reliefs.
Plaintiffs submitted that the defendants were in use and in
occupation of the above premises as their guest-house and so far
as hall and kitchen are concerned, family members of the plaintiff
and defendants were using it as common amenities. The
plaintiffs also claim that they are in occupation of another bed-
room in the suit flat and no monetary consideration was charged
by them from the defendants for exclusive use and occupation of
one bed-room and joint use of the hall and kitchen as common
amenities. Permission granted to the defendants to use the
premises was later revoked and since they did not vacate the suit
flat and continued to hold possession wrongfully and illegally, suit
was filed for eviction.
7. The Small Causes Court decreed the suit on 07.02.1997 and
ordered eviction of the appellants with a specific finding that they
are gratuitous licensee. The appellants preferred an appeal
before the Appellate Bench of Small Causes Court, which was
dismissed on 05.04.2003. Against that order both the appellants
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and respondents filed writ petitions before the High Court,
Bombay and the respondents’ writ petition was for claiming
mesne profits.
8. The Defendants questioned the jurisdiction of the Small
Causes Court, Mumbai to entertain and try the suit before the
learned Single Judge of the High Court of Bombay, placing
reliance on the judgment of the Division Bench in Ramesh
Dwarkadas Mehra’s case (supra) contending that the licence
created by the plaintiffs in favour of the defendants was
gratuitous, i.e. without consideration, hence the suit is not
maintainable in that Court. Learned Single Judge vide his order
dated 16.01.2006 referred the matter to a larger bench.
Consequently, a Full Bench was constituted.
9. The Full Bench of the Bombay High Court formulated the
following questions for its consideration:
(i) Whether the expression “Licensee” used in section 41(1) in Chapter VII of PSCC Act, not having been defined therein, would derive its meaning from the expression “licensee” as used in sub-section (4A) of section 5 of the Rent Act and/or whether the expression “licensee” used in section 41(1) of PSCC Act is a term of
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wider import so as to mean and include a “gratuitous licensee” also?
(ii) Whether a suit by a “licensor” against a “gratuitous licensee” is tenable before the Presidency Small Cause Court under section 41 of PSCC Act?
Both the above mentioned questions, as already indicated, were
answered by the Full Bench in the affirmative, the correctness of
otherwise of those findings is the issue that falls for our
consideration.
Arguments
10. Shri Soli J. Sorabjee, learned senior counsel appearing for the
appellants, submitted that the Full Bench was in error in
overturning a well-reasoned judgment of the Division Bench of the
High Court in Ramesh Dwarkadas Mehra’s case and contended
that the licence created by the plaintiffs in favour of the
defendants was admittedly gratuitous and hence a suit for
eviction of such a licensee is not maintainable in a Small Causes
Court. Further, it was pointed out that the intention of the
Legislature was that the “licence” contemplated in Section 41 of
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PSCC Act must take its colour from Section 5(4A) of the Rent Act
1947, which specifically excludes a gratuitous licensee, hence,
such a suit is maintainable only before a competent civil court.
Learned senior counsel also pointed out that it is an established
position of law that, under Section 9 of the Code of Civil
Procedure, 1908, the jurisdiction of a Civil Court cannot be ousted
unless such an ouster is expressed or clearly implied and such a
provision has to be strictly construed. Shri Sorabjee also
submitted that Section 41 of the PSCC Act, as initially enacted,
used the expression “permission” and not “licence”, despite the
Easements Act, 1882, which is indicative of the legislative intent
that Section 52 of the Easements Act, not being pari materia,
ought not be relied on in determining the scope and meaning of
the term “licensee” in Section 41 of PSCC Act.
11. Shri Sorabjee also pointed out that, till 1976, the PSCC Act
continued to use the expression “permission” and the 1976
Amendment to the PSCC Act was inspired only by 1973
Amendment to the Rent Act 1947. Further, it was also submitted
that 1976 Amendment was specifically made to PSCC Act to
harmonize it with the Rent Act 1947. Shri Sorabjee also
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submitted that Section 41 of the PSCC Act, by virtue of the 1976
Amendment, was completely reworded to specifically reflect the
language used in Section 28 of the Rent Act 1947 so as to make
it pari materia. In other words, it was submitted that, after the
1976 Amendment, the Rent Act 1947 and PSCC Act, are cognate
and pari materia statutes which form part of the same system.
Learned senior counsel pointed out that the statutes dealing with
the same subject matter or forming part of the same system are
pari materia statutes. Reference was made to the judgments of
this Court reported in Mansukhlal Dhanraj Jain v. Eknath
Vithal Ogale (1995) 2 SCC 665, R v. Herrod (1976) 1 All ER 273
(CA) and Ahmedabad Pvt. Primary Teachers Assn. V.
Administrative Officer and Ors. (2004) 1 SCC 755.
12. Shri Sorabjee also submitted that the Statement of Objects
and Reasons of 1976 Amendment proceeds on the premise that
the “licence” contemplated by Section 41 of PSCC Act is a non-
gratuitous one which provides that, under the existing law, the
licensor had to go to different Courts for recovery of possession
and licence fee and that the intention of the Legislature was
always to confine the jurisdiction of the Small Causes Court to
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eviction proceedings and proceedings for the recovery of
rent/licence fee, not to evict a gratuitous licensee. Shri Sorabjee
also submitted that the expression “licence” contemplated in
Section 41 of PSCC Act does not include a gratuitous licensee,
which is also in consonance with the principle of Nocitur a sociis,
which provides that words must take colour from words with
which they are associated. In support of this contention, reliance
was placed on the judgment of this Court in Ahmedabad Pvt.
Primary Teachers Assn.’s case.
13. Shri Sorabjee also submitted that the respondents have
proceeded on a wholly incorrect premise that the Rent Act 1947
only protects the licensees who were in possession on
01.02.1973. It was pointed out that by virtue of 1973
Amendment to the Rent Act 1947, protection was given to all
“licensees” defined in Section 5(4A). It was also submitted that
certain licensees were given the status of deemed tenants under
Section 15A and that only those licensees who had subsisting
license on 01.02.1973 were given the status of deemed tenants.
Learned senior counsel pointed out that if all the licensees were
deemed tenants, there would not have been any need to insert
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the word “licence” in various provisions of the Act. Learned
senior counsel also pointed out that these aspects were
overlooked by the judgment in appeal, unsettling the law laid
down by the Division Bench of the High Court in Ramesh
Dwarkadas Mehra’s case (supra).
14. Shri Shekhar Naphade, learned senior counsel appearing for
the respondents, submitted that the Full Bench of the Bombay
High Court is right in holding that the expression “licensee” used
in Section 41(1) of PSCC Act does not derive its meaning from the
expression “licensee” as defined in Section 5(4A) of the Rent Act
1947 and that the expression “licensee” used in Section 41(1) of
PSCC Act is a term of wide import so as to mean and include a
gratuitous licensee. Learned senior counsel also submitted that
the argument of the appellants that the Rent Act 1947 is pari
materia with Section 41 of PSCC Act or same system statute, is
totally misconceived. Shri Naphade also submitted that the
“licence” contemplated in Section 41(1) of PSCC Act be
considered as licence, as defined in Section 52 of the Easements
Act. Shri Naphade also pointed out that though Section 41(1) of
PSCC Act, as originally enacted, refers to occupation of premises
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with permission, such permission means permission as referred to
in Section 52 of the Easements Act which is a contemporaneous
statute, i.e. Easements Act, the Transfer of Property Act and
Section 41 of PSCC Act. In support of that principle, learned
senior counsel placed reliance on the judgment of this Court in
National & Grindlays Bank Ltd. v. The Municipal
Corporation of Greater Bombay (1969) 1 SCC 541 and Tata
Engineering and Locomotive Company Ltd. v. The Gram
Panchayat, Pimpri Wachere (1976) 4 SCC 177.
15. Shri Naphade also submitted that the expression “licensor”
or “licensee” or “landlord” and “tenant” used in Section 41 of
PSCC Act, as amended by the Maharashtra Act No. XIX of 1976,
relate to “immoveable property” and Section 52 of the Easements
Act which defines a “licence” has a inseparable connection to
immoveable property and property law. Learned senior counsel
pointed out that the expression “licensee” is used as an antithesis
to the concept of tenant and, therefore, the licensee under
Section 41(1) must mean a person having a licence as defined in
Section 52 of the Easements Act. Shri Naphade also submitted
that the Maharashtra Act of 1976 made necessary changes in
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Chapter VII of PSCC Act which contained Sections 41 to 49 and by
virtue of the amendment, the pecuniary restriction on the
jurisdiction of the Small Causes Court placed by Section 18 has
been removed to speed up the proceedings for eviction and to
avoid multiplicity of proceedings. The Legislature also intended
that all cases of licensees and tenants should be tried only by the
Small Causes Court under Section 41(1) of PSCC Act.
16. Before considering the rival contentions raised by the
counsel on either side and the reasoning of the Full Bench, it is
necessary to examine the historical settings of the various
legislations.
LEGISLATIVE HISTORY
PSCC Act:
17. The PSCC Act came into force on 01.07.1882. In that year,
the Transfer of Property Act as well as the Easements Act was
also enacted. Under the PSCC Act, Small Causes Courts were
established in Calcutta, Madras, Ahmedabad and Bombay and the
PSCC Act was enacted to consolidate and amend the law relating
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to Courts of Small Causes established in the Presidency Towns.
Small Causes Court was conferred with the jurisdiction to try all
suits of a civil nature where value of the subject matter did not
exceed Rs.10,000/- as per Section 18, subject to exceptions in
Section 19 of PSCC Act. Small Causes Courts, at that time, were
treated as a Civil Courts in the hierarchy of the Courts. Chapter
VII of PSCC Act, as it stood prior to the Maharashtra Amendment
Act, 1976, contained Sections 41 to 46 conferring limited
jurisdiction of recovery of possession of immoveable property on
Small Causes Court giving summary remedy for recovery of
possession of immoveable property of the prescribed value.
Section 41 of PSCC Act then stood as follows:
“41. Summons against persons occupying property without leave.- When any person has had possession of any immovable property situate within the local limits of the Small Cause Court’s jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission, or another person, or of some person through whom such other person claims,
and such tenancy or permission has determined or been withdrawn,
and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in
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compliance with a request made to him in this behalf by such other person,
such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property.
18. Proceedings at that time were initiated by filing an
application, not a suit. Even the Bombay Rent Act, 1939 and
Bombay Rent Act, 1944, did not give exclusive jurisdiction to any
Court. Legislative history indicates that in respect of premises
having annual rack rent up to Rs.2,000/-, the proceedings for
recovery of possession between landlord and tenant were to be
filed in Small Causes Court under Chapter VII of the PSCC Act and
in case where the annual rack rent exceeded Rs.2,000/-, the
recovery suits were to be filed in the Original Side of the High
Court.
19. Bombay Rent Act 1947 also brought lot of changes to the
Rent Act of 1939 and 1944 and Section 28 of the 1947 Act
provided that exclusive jurisdiction was conferred on the Small
Cause Court in respect of all the suits between landlord and
tenant relating to recovery of rent or possession irrespective of
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value of the subject-matter. Suits between landlord and tenant
pending on the original side of the High Court were transferred to
the Presidency Small Cause Courts, Mumbai and were to be tried
under the provisions of the Rent Act. Even landlords were
prohibited from recovering any amount in excess of standard rent
which was pegged down at the level of rent in September, 1940
or on the date of first letting. Even the landlord's right of evicting
tenant was also severely curtailed and the landlords could recover
possession only on proof of grounds of eviction enumerated under
the Rent Act, therefore, they started letting out their premises
under an agreement of leave and license. Proceedings for
recovery of possession against the licensee though started filing
suits under Section 41 of the Small Cause Courts Act, the
defendants in those cases starting denying that there were
licensees but tenants and that the agreement of leave and licence
was sham and bogus and hence not binding. Even the findings
rendered by the Small Cause Court in exercise of its jurisdiction
under Section 41 on the question of tenancy was not final and the
aggrieved party had a right to file a regular suit for declaration of
the title resulting in multiplicity of the proceedings. Chapter VII of
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the PSCC Act was later amended by the Maharashtra Act No. XLI
of 1963. The object of the Amendment in a nutshell is as follows:
“In view of the fact that the provisions of Section 47 of the Presidency Small Cause Courts Act, 1882 are abused by the parties in an application under Section 41 and the litigation is protracted on account of parties in certain cases claiming the right to be tried under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Act deletes sections 45 to 47 of the Presidency Small Cause Courts Act, 1882 and empowers the Small Cause Court to decide as a preliminary issue the question whether an occupant is entitled to the protection of the Rent Control Act and to lay down that only one appeal can be preferred against the order and no further appeal can lie. New Section 49 provides that recovery of possession shall be a bar to a suit in any court except on the basis of title to the immovable property other than as title.”
20. Section 42A which provided that if in an application made
under Section 41, the occupant raises a defence that he is a
tenant within the meaning of Bombay Rent Act, 1947 then
notwithstanding anything contained in that Act, the question shall
be decided by the Small Cause Court as a preliminary issue. The
question of filing civil suits against licensee even after the
introduction of Section 42A depended upon the value of subject
matter.
Bombay Rent Act
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21. Bombay Rent Act, 1925 was repealed by the Bombay Rent
Protection Act, 1939. Both the Acts did not contain any special or
separate definition of “license” nor did they deal with “licensees”.
In the year 1944, Bombay Rent, Hotel and Lodging House Rates
(Control) Act 1944 was enacted followed by the 1947 Act. Rent
Act, 1947 also did not deal with expressions “license” or
“licensee” and their rights and there were widespread attempts to
evade the rigour of the rent control legislation by entering into
“leave and licence” agreements in order to prevent rampant
evasion. Bombay Rent Act was amended in the year 1973 to
bring “licensees” within the purview of the Rent Act, 1947 by
adding Section 5(4A) and Section 15A.
22. Statement of Objects and Reasons of Maharashtra Act 19 of
1973 reads as follows:
“It is now notorious that the Bombay Rents, Hotel and lodging House Rates Control Act, 1947, is being avoided by the expedient of giving premises on leave and license for some months at a time; often renewing from time to time at a higher license fee. Licensees are thus charged excessive license fees’ in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee. It is necessary
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to make provision to bring licensees within the purview of the aforesaid Act. It is therefore provided by Cl.14 in the Bill that persons in occupation on the 1st day of February 1973 (being a suitable anterior date) under subsisting licenses, shall for the purposes of the act, be treated as statutory tenants and will have all the protection that a statutory tenant has, under the Act. It is further provided in Cl. 8 that in the case of other licenses, the charge shall not be more than a sum equivalent to standard rent and permitted increases, and a reasonable amount for amenities and services. It is also provided that no person shall claim or receive anything more as license fee or charge, than the standard rent and permitted increases, and if he does receive any such excessive amounts, they should be recoverable from the licensor.” (Emphasis supplied)
23. Section 15-A introduced in the said Act stated that a person
as on 1st February, 1973 in occupation of any premises or any part
of which is not less than a room as licensee under a subsisting
agreement of leave and license, he shall on that day deemed to
have become tenant of the landlord for the purpose of Bombay
Rent Act, 1947 in respect of the premises or part thereof in his
occupation. The definition of the expression “tenant” in Section
5(11) was also amended to include such licensee as shall be
deemed to be the tenant by virtue of Section 15A. The
expression “licensee” was also inserted by Sub-section (4A) in
Section 5 which provided that a person in occupation of the
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premises or of such part thereof which is not less than a room, as
the case may be, in a subsisting agreement for license given only
for a license fee or charge but excluded from its sweep a
gratuitous licensee.
Maharashtra Act XIX of 1976
24. Maharashtra Act XIX of 1976 made drastic changes in
Chapter VII of PSCC Act by which Chapter VII was substituted for
the original Chapter VII (Sections 41 to 49). Under Chapter VII of
the 1976 Amendment, the proceedings for recovery of possession
under Section 41 no more remained summary and they were
given status of regular suits. For easy reference, we may refer to
both sub-sections (1) and (2) of Section 41, which reads as
follows:
41. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court.- (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and
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licensee, or a landlord and tenant relating the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings. (2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fees or charges of rent thereof, to which the provisions of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force, applies.
25. The Statement of Objects and Reasons of the 1976
Amendment is also relevant and same is extracted hereunder:
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“ STATEMENT OF OBJECTS AND REASONS
At present in Greater Bombay, all suits and proceedings between a landlord and tenant relating to recovery of possession of premises or rent, irrespective of the value of the subject matter lie in the Court of Small Causes, Bombay under Section 28 of the Bombay, Rent, Hotel and Lodging House Rates Control Act, 1947. Under that section, suits and proceedings for the recovery of the license fee between a licensor and licensee as defined in that Act also lie in the Court of Small Causes, irrespective of the value of the subject matter. Under Chapter VII of the Presidency Small Causes Court Act, 1882 an application can be made by a licensor for recovery of possession of premises, of which the annual value at a rack rent does not exceed three thousand rupees. If the rack rent exceeds three thousand rupees, the licensor has to take proceedings in the City Civil Court where the rack rent does not exceed twenty five thousand rupees and for higher rents in the High Court. Similarly, for recovery of license fees to which the provisions of the Bombay Rent Control Act do not apply, the licensor has to seek his remedy in the Small Causes Court, the City Civil Court or the High Court, as the case may be, according to the value of the subject matter. Under the existing law, the licensor has to go to different Courts for recovery of possession of premises and license fees and if the plea of tenancy is raised by the defendant and succeeds, the matter has again to go to the Small Causes Court. Similarly, where proceedings on the basis of tenancy are started in the Small Causes Court and subsequently the plea of license is taken and succeeds, the plaint is returned and has to be represented to the City Civil Court or the High Court as the case may be, depending on the valuation. Thus, there is unnecessary delay, expense and hardship caused to the suitors by going from one Court to another to have the issue of jurisdiction
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decided. Moreover, Chapter VII of the Presidency Small Causes Courts Act envisages applications which culminate in orders and are always susceptible of being challenged by separate suits on title where relationship is admittedly not between a landlord and tenant. 2. In order to avoid multiplicity of proceedings in different Courts and consequent waste of public time and money and unnecessary delay, hardship and expense to the suitors, and to have uniformity of procedure, it is considered expedient to make the required supplementary provisions in the Presidency Small Causes Court Act, so that all suits and proceedings between a landlord and tenant or a licensor and licensee for recovery of possession of premises or for recovery of rent or license fee, irrespective of the value of the subject matter should go to and be disposed of by the Small Causes Court, either under that Act or the Rent Control Act. 3. The Bill is intended to achieve these objects.”
26. We may, on the basis of the above legal and historical
settings, examine the exact intent of the Legislature in inserting
the expressions “licensor” and “licensee” in Section 41(1) of the
PSCC Act by the 1976 Amendment and also whether all disputes
between licensors and licensees are intended to be tried only by
the Small Causes Courts. Before embarking upon such an
exercise, we have to deal with the basic principles of
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interpretation of the expressions which figures in the Statutes
under consideration.
Golden Rule
27. Golden-rule is that the words of a statute must be prima
facie be given their ordinary meaning when the language or
phraseology employed by the legislature is precise and plain.
This, by itself proclaims the intention of the legislature in
unequivocal terms, the same must be given effect to and it is
unnecessary to fall upon the legislative history, statement of
objects and reasons, frame work of the statute etc. Such an
exercise need be carried out, only when the words are
unintelligible, ambiguous or vague.
28. It is trite law that if the words of a Statute are themselves
precise and unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The
above principles have been applied by this Court in several cases,
the judgments of which are reported in Chief Justice of Andhra
Pradesh and Others v. L.V.A. Dixitulu and Others (1979) 2
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SCC 34, Kehar Singh and Others v. State (Delhi Admn.) AIR
1988 SC 1883, District Mining Officer and Others v. Tata
Iron and Steel Co. and Another (2001) 7 SCC 358,
Gurudevdatta VKSSS Maryadit and Others v. State of
Maharashtra and Others AIR 2001 SC 1980, State of H.P. v.
Pawan Kumar (2005) 4 SCC 350 and State of Rajasthan v.
Babu Ram (2007) 6 SCC 55.
29. Section 41(1), as such, came up for consideration before this
Court in Mansukhlal Dhanraj Jain’s case (supra). While
interpreting the said provision, the Court stated that the following
conditions must be satisfied before taking the view that
jurisdiction of regular competent civil court is ousted:
(i) It must be a suit or proceeding between the licensee
and licensor; or
(ii) between a landlord and a tenant
(iii) such suit or proceeding must relate to the recovery of
possession of any property situated in Greater Bombay;
or
(iv) relating to the recovery of the licence fee or charges or
rent thereof.
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30. We are primarily concerned with the condition nos. (i) and
(iii) and if we hold that both the above conditions are satisfied,
then Small Causes Courts will have the jurisdiction to entertain
the suit in question, provided the expression “licensee” means
and include “gratuitous licensee” also. In that context, we have
also to examine whether the expression “licensee” in Section
41(1) of the PSCC Act would mean only “licensee” within the
meaning of sub-section (4A) of Section 5 of the Rent Act 1947.
31. Let us, in this context, make a brief reference to Sub-section
(2) of Section 41 of the PSCC Act, which states, nothing contained
in Sub-section (1) shall apply to suit or proceeding for the
recovery of possession of any immovable property or of licence
fee or charges or rent thereof, to which provisions of Rent Act
1947 apply. A plain reading of this sub-section shows that the
provisions of sub-section shall not apply to suit or proceeding for
recovery of possession of any immovable property or licence fee
to which Rent Act 1947 apply, meaning thereby, if the provisions
of Sub-section (4A) and Sub-section (11) of Section 5 read with
Section 15A of the Rent Act 1947 are attracted, the provisions of
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Sub-section (1) of Section 41 of the PSCC Act cannot be resorted
to to institute a suit between the licensor and licensee, relating to
recovery of licence fee, therefore, if a licensee is covered by
Section 15A read with Section 5(4A) of the Rent Act 1947, the suit
under Section 41(1) would not be maintainable. Section 41(1),
therefore, takes in its compass “licensees” who do not fall within
the ambit of Section 5(4A) read with Section 5(11) and Section
15A of the Rent Act 1947.
32. Gratuitous licensee, it may be noted, does not fall within
Section 5(4A) read with Sections 5(11) and 15A of the Rent Act
1947. The provisions of Section 41(1) also do not specifically
exclude a gratuitous licensee or makes any distinction between
the licensee with material consideration or without material
consideration. Further, it may also be noted that Section 28 of
the Rent Act 1947 do not confer jurisdiction on the Small Causes
Court to entertain a suit against a gratuitous licensee. Section 28
read with Section 5(4A) would show that a party who claims to be
a gratuitous licensee is not entitled to any protection under the
Rent Act 1947.
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PARI MATERIA:
33. Viscount Simonds in A.G. v. HRH Prince Ernest Augustus
of Hanover (1957) 1 All ER 49, conceived the above mentioned
principle to be a right and duty to construe every word of a
statute in its context and used the word “context” in its widest
sense, including “other statutes in pari materia”. Earlier, same
was the view taken in R. v. Loxdale (1758) 97 ER 394 stating
that when there are different statutes in pari materia, though
made at different times, or even expired and not referring to each
other, they shall be taken and construed together as one system
and as explanatory to each other. This Court in State of
Punjab v. Okara Grain Buyers Syndicate Ltd. Okara AIR
1964 SC 669 held that when two pieces of legislation are of
different scopes, it cannot be said that they are in pari materia.
In Shah & Co., Bombay v. State of Maharashtra AIR 1967 SC
1877, this Court held that the Rent Act 1947 and the Bombay
Land Requisition Act, 1948 were not held to be the acts in pari
materia, as they do not relate to the same person or thing or to
same class of persons of things.
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34. “Pari materia” words, it is seen, are used in Section 28 of the
Bombay Rent Act, 1947 and Section 41(1) of PSCC Act referring to
the nature of suits in both the provisions would indicate that
those provisions confer exclusive jurisdiction on Small Causes
Court meaning thereby it alone can entertain suits or proceedings
relating to recovery or possession of the premises. Section 28 of
the Bombay Rent Act deals with the suits only between landlord
and tenant and between licensor and licensee relating only to
recovery of licence fee or charge while Section 41 of the PSCC
Act deals with such suits between licensor and licensee also.
Where the premises are not governed by the Rent Act, the
provisions of Section 41 of the PSCC Act would apply, at the same
time where the premises are governed by the provisions of Rent
Act, the provisions of Section 28 would be attracted.
35. When we look at both the provisions, it is clear that the
nature of such suits as envisaged by both the sections is the
same. In this connection, a reference may be made to the
judgment of this Court in Mansukhlal Dhanraj Jain’s case
(supra) wherein this court has dealt with a question whether the
suit filed by the plaintiff claiming the right to possess the suit
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premises as a licensee, against defendant alleged licensor who is
said to be threatening to disturb the possession of the plaintiff –
licensee without following due process of law is cognizable by the
Court of Small Causes Bombay as per Section 41(1) of the PSCC
Act or whether it is cognizable by City Civil Court, Bombay? This
Court while dealing with that question held that the Court of Small
Cause have jurisdiction and that in Section 41(1) of the PSCC Act
and Section 28 of the Bombay Rent Act, 1947, pari materia words
are used, about the nature of the suits in both these provisions,
for conferring exclusive jurisdiction on Small Causes Courts.
Paragraphs 17 and 18 of that judgment would make it clear that
in that case this Court only observed that some expressions in
Section 28 of the Rent Act only are pari materia with the
expressions employed in Section 41(1) of the Small Cause Court
and not stated that the PSCC Act and the Rent Act are pari
materia statutes.
36. We may in this respect refer to Section 51 of the Rent Act
which provides for the removal of doubt as regards proceedings
under Chapter VII of the PSCC Act which states that for removal of
doubt, it is declared that unless there is anything repugnant in the
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subject or context references to suits or proceedings in this Act
shall include references to proceedings under Chapter VII of the
PSCC Act and references to decrees in this Act shall include
references to final orders in such proceedings. The Full Bench of
the Bombay High Court, in our view, is right in holding that
Section 51 of the Rent Act will have to be read with Section 50.
The Court rightly noticed that on the date when the Rent Act
came into force, there were two types of proceedings for recovery
of possession pending in two different courts in the City of
Bombay, that is proceedings under Chapter VII were pending in
the Small Causes Court and also suits were pending on the
original side of the High Court. Section 50 provides that suits
pending in any court which also includes the High Court shall be
transferred to and continued before the courts which would have
jurisdiction to try such suits or proceedings under the Rent Act
and shall be continued in such Courts as the case may be and all
provisions of the Rent Act and the Rules made thereunder shall
apply to all such suits and proceedings. In other words, the suits
pending in the High Court would be transferred to the Small
Causes Court and would be heard and tried there and all the
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provisions of the Rent Act and the Rules made thereunder would
apply to such suits. Section 50 also provided that all proceedings
pending in the Court of Small Cause under Chapter VII shall be
continued in that court and all provisions of the Rent Act and the
Rules made thereunder shall apply to such proceedings. Pending
proceedings under Chapter VII were to be continued as
proceedings under the Rent Act and all provisions and the Rules
under the Rent Act were to apply to such proceedings.
37. Section 51 in that context states that references to suits or
proceedings under the Rent Act shall include references to the
proceedings under Chapter VII of the PSCC Act and references to
decrees in the Rent Act shall include references to final order in
such proceedings. When we make a comparative analysis of the
abovementioned provisions, it is not possible to hold that the Rent
Act and Chapter VII of the PSCC Act are pari materia statutes.
Noscitur a sociis Principle
38. The Latin maxim “noscitur a sociis” states this contextual
principle, whereby a word or phrase is not to be construed as if it
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stood alone but in the light of its surroundings - Bennion on
Statutory Interpretation, Fifth Edition. A-G Prince Ernest Augustus
of Hanover [1957] AC 436, Viscount Simonds has opined that “a
word or phrase in an enactment must always be construed in the
light of the surrounding text. “….words and particularly general
words, cannot be read in isolation; their colour and their content
are derived from their context.” Noscitur a sociis is merely a rule
of construction and it cannot prevail in cases where it is clear that
the wider words are intentionally used by the legislature in order
to make the scope of the defined word correspondingly wider.
The above principle has been applied in several judgments of this
Court like The State of Bombay and Others v. The Hospital
Mazdoor Sabha and Others [AIR 1960 SC 610, (1960) 2 SCR
866] Bank of India v. Vijay Transport and Others, [AIR 1988
SC 151, (1988) 1 SCR 961], M/s Rohit Pulp and Paper Mills
Ltd. v. Collector of Central Excise, (1990) 3 SCC 447,
Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, M/s
Brindavan Bangle Stores & Ors. v. The Assistant
Commissioner of Commercial Taxes & Another, (2000) 1 SCC
674 etc.
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39. We find the expression “licensee” in Section 41 of the PSCC
Act has been used to fully achieve the object and purpose
especially of 1976 Amendment Act and legislature has used clear
and plain language and the principle noscitur a sociis is
inapplicable when intention is clear and unequivocal. It is only
where the intention of the legislature in associating wider words
with words of a narrow significance is doubtful or otherwise not
clear, the rule of Noscitur a Sociis can be applied. When the
intention of the legislature in using the expression ‘licensee’ in
Section 41(1) of the PSCC Act is clear and unambiguous, the
principle of Noscitur a Sociis is not to be applied.
Contemporenea Expositio
40. Contemporenea Expositan is the best and most powerful law
and it is a recognized rule of interpretation. Reference may be
made to the judgments of this Court in National and Grindlays
Bank Ltd. v. The Municipal Corporation of Greater,
Bombay (1969) 1 SCC 541 and The Tata Engineering and
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Locomotive Company Ltd. v. Gram Panchayat (1976 ) 4 SCC
177.
41. We notice in the instant case that the concept of licence and
lease were dealt with by contemporary statutes - Indian Easement
Act, Transfer of Property Act and Section 41 of the PSCC Act and,
as already indicated, all those statutes were enacted in the year
1882. Therefore, Section 41(1) of the PSCC Act could not have
been contemplated any other meaning of the term “occupation
with permission” but only the permission as contemplated by
Section 52 of the Indian Easements Act. The PSCC Act is a
procedural law and as already indicated, the expression “licensor”
and “licensee” or “landlord” and “tenant” used in Section 41 of
the PSCC Act (as amended by Maharashtra Act No. XIX of 1976)
relate to immovable property and Section 52 of the Indian
Easements Act which defines a licence has an inseparable
connection to immovable property and property law. Legislature
was well aware of those contemporaneous statutes, that was the
reason, why the expression licence as such has not been defined
in the PSCC Act with the idea that the expression used in a
contemporaneous statutes would be employed so as to interpret
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Section 41 of the PSCC Act. Above-mentioned principle, in our
view, would apply to the instant case.
Licensor – Licensee
42. The PSCC Act, as already indicated, does not define the
expression “licensor” and “licensee”. Both these expressions find
a place in Section 41(1) of the PSCC Act. Section 41(1) confers
jurisdiction on Court of Small Causes to entertain and try all the
suits and proceedings between a “licensor” and a “licensee”
relating to recovery of possession of any immovable property or
relating to recovery of licence fee. Section 5(4A) of the Rent Act
defines the term “licensee” so also Section 52 of the Indian
Easement Act, 1882. Sub-section (4A) of Section 5 of the Rent
Act provides that “licensee” means a 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 definition of “licensee” under sub-section (4A) of
Section 5 is both exhaustive as well as inclusive. But it is relevant
to note that the licensee under sub-section (4A) must be a
licensee whose licence is supported by material consideration
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meaning thereby a gratuitous licensee is not covered under the
definition of licensee under sub-section (4A) of Section 5 of the
Rent Act.
43. Let us now examine the definition of “licence” under Section
52 of the Indian Easement Act which provides that where one
person grants to another, or to a definite number of other
persons, a right to do, or continue to do, in or upon the
immovable property of the grantor, something which would, in the
absence of such right be unlawful and such right does not amount
to easement or an interest in the property, the right is called a
licence. This Court in State of Punjab v. Brig. Sukhjit Singh
(1993) 3 SCC 459 has observed that “payment of licence fee is
not an essential attribute for subsistence of licence. Section 52,
therefore, does not require any consideration, material or non
material to be an element, under the definition of licence nor does
it require the right under the licence must arise by way of
contract or as a result of a mutual promise.
44. We have already referred to Section 52 of the Indian
Easement Act and explained as to how the legislature intended
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that expression to be understood. The expressions “licensor” and
“licensee” are not only used in various statutes but are also
understood and applied in various fact situations. The meaning of
that expression “licence” has come up for consideration in several
judgments. Reference may be made to the judgment of this
Court in C.M. Beena and Anr. v. P.N. Ramachandra Rao
(2004) 3 SCC 595, Sohan Lal Naraindas v. Laxmidas
Raghunath Gadit (1971) 1 SCC 276, Union of India (UOI) v.
Prem Kumar Jain and Ors. (1976) 3 SCC 743, Chandy
Varghese and Ors. v. K. Abdul Khader and Ors. (2003 ) 11
SCC 328.
45. The expression “licensee” has also been explained by this
Court in Surendra Kumar Jain v. Royce Pereira (1997) 8 SCC
759. In P.R. Aiyar’s the Law Lexicon, Second Edition 1997,
License has been explained as “A license in respect to real estate
is defined to be an authority to do a particular act or series of acts
on another’s land without possessing any estate therein”. The
word “licensee” has been explained in Black’s Law Dictionary,
Sixth Edition to mean a person who has a privilege to enter upon
land arising from the permission or consent, express, or implied,
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of the possessor of land but who goes on the land for his own
purpose rather than for any purpose or interest of the possessor.
Stroud’s Judicial Dictionary of Words and Phrases, Sixth Edition,
Vol. 2 provides the meaning of word “licensee” to mean a
licensee is a person who has permission to do an act which
without such permission would be unlawful.
46. We have referred to the meaning of the expressions
“licence” and “licensee” in various situations rather than one that
appears in Section 52 of the Indian Easement Act only to indicate
that the word licence is not popularly understood to mean that it
should be on payment of licence fee, it can also cover a
gratuitous licensee as well. In other words, a licensor can permit
a person to enter into another’s property without any
consideration, it can be gratuitous as well.
47. We have already indicated the expression “licence” as
reflected in the definition of licensee under sub-section (4A) of
Section 5 of the Rent Act and Section 52 of the Indian Easement
Act are not pari materia. Under sub-section (4A) of Section 5,
there cannot be a licence unsupported by the material
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consideration whereas under Section 52 of the Indian Easement
Act payment of licence fee is not an essential requirement for
subsistence of licence. We may indicate that the legislature in its
wisdom has not defined the word “licensee” in the PSCC Act. The
purpose is evidently to make it more wide so as to cover
gratuitous licensee as well with an object to avoid multiplicity of
proceedings in different courts causing unnecessary delay, waste
of money and time etc. The object is to see that all suits and
proceedings between a landlord and a tenant or a licensor and a
licensee for recovery of possession of premises or for recovery of
rent or licence fee irrespective of the value of the subject matter
should go to and be disposed of by Small Cause Court. The object
behind bringing the licensor and the licencee within the purview
of Section 41(1) by the 1976 Amendment was to curb any
mischief of unscrupulous elements using dilatory tactics in
prolonging the cases for recovery of possession instituted by the
landlord/licensor and to defeat their right of approaching the
Court for quick relief and to avoid multiplicity of litigation with an
issue of jurisdiction thereby lingering the disputes for years and
years.
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48. We may in this connection also refer to the judgment of this
Court in Km. Sonia Bhatia v. State of U.P. and Ors. (1981) 2
SCC 585, wherein this Court was concerned with the ambit of
expression “transfer” and “consideration” occurring in U.P.
Imposition of Ceiling on Land Holdings Act. Both the expressions
were not defined in the Act. In such circumstances, this Court
observed that the word “transfer” has been used by the
legislature in general sense of the term as defined in the Transfer
of Property Act. This Court also observed that the word “transfer”
being a term of well known legal significance having well
ascertained incidents, the legislature did not think it necessary to
define the term “transfer” separately. The ratio laid down by the
apex court in the above-mentioned judgment in our view is also
applicable when we interpret the provisions of the PSCC Act
because the object of the Act is to suppress the mischief and
advance the remedy.
49. The interpretation of the expressions licensor and licensee
which we find in Section 41(1), in our view, is in tune with the
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objects and reasons reflected in the amendment of the PSCC Act
by the Maharashtra Act (XIX) of 1976 which we have already
extracted in the earlier part of the judgment. The objects and
reasons as such may not be admissible as an aid of construction
to the statute but it can be referred to for the limited purpose of
ascertaining the conditions prevailing at the time of introduction
of the bill and the extent and urgency of the evil which was
sought to be remedied. The legal position has been well settled
by the judgment of this Court in M.K. Ranganathan and Anr. v.
Government of Madras and Ors. AIR 1955 SC 604. It is trite
law that the statement of objects and reasons is a key to unlock
the mind of legislature in relation to substantive provisions of
statutes and it is also well settled that a statute is best
interpreted when we know why it was enacted. This Court in
Bhaiji v. Sub Divisional Officer, Thandla and Ors. (2003) 1
SCC 692 stated that the weight of the judicial authority leans in
favour of the view that the statement of objects and reasons
cannot be utilized for the purpose of restricting and controlling
statute and excluding from its operation such transactions which
it plainly covers. Applying the above-mentioned principle, we
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cannot restrict the meaning and expression licensee occurring in
Section 41(1) of the PSCC Act to mean the licensee with monetary
consideration as defined under Section 5(4A) of the Rent Act.
ONE UMBERALLA POLICY
50. We are of the considered view that the High Court has
correctly noticed that the clubbing of the expression “licensor and
licensee” with “landlord and tenant” in Section 41(1) of the PSCC
Act and clubbing of causes relating to recovery of licence fee is
only with a view to bring all suits between the “landlord and
tenant” and the “licensor and licensee” under one umberalla to
avoid unnecessary delay, expenses and hardship. The act of the
legislature was to bring all suits between “landlord and tenant”
and “licensor and licensee” whether under the Rent Act or under
the PSCC Act under one roof. We find it difficult to accept the
proposition that the legislature after having conferred exclusive
jurisdiction in one Court in all the suits between licensee and
licensor should have carved out any exception to keep gratuitous
licensee alone outside its jurisdiction. The various amendments
made to Rent Act as well the Objects and Reasons of the
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Maharashtra Act XIX of 1976 would clearly indicate that the
intention of the legislature was to avoid unnecessary delay,
expense and hardship to the suitor or else they have to move
from the one court to the other not only on the question of
jurisdiction but also getting reliefs.
51. We are of the view that in such a situation the court also
should give a liberal construction and attempt should be to
achieve the purpose and object of the legislature and not to
frustrate it. In such circumstances, we are of the considered
opinion that the expression licensee employed in Section 41 is
used in general sense of term as defined in Section 52 of the
Indian Easement Act.
52. We have elaborately discussed the various legal principles
and indicated that the expression ‘licensee’ in Section 41(1) of
the PSCC Act would take a gratuitous licensee as well. The
reason for such an interpretation has been elaborately discussed
in the earlier part of the judgment. Looking from all angles in our
view the expression ‘licensee’ used in the PSCC Act does not
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derive its meaning from the expression ‘licensee’ as used in Sub-
section (4A) of Section 5 of the Rent Act and that the expression
“licensee” used in Section 41(1) is a term of wider import
intended to bring in a gratuitous licensee as well.
53. We are, therefore, in complete agreement with the
reasoning of the Full Bench of the High Court. In such
circumstances, the appeals lack merits and are, therefore,
dismissed. There is no order as to costs.
……………………………..J. (K.S. Radhakrishnan)
……………………………..J. (Dipak Misra)
New Delhi, August 13 , 2013