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Emperor Vs. Sherif Dadumiyaji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCrimnal Revisional Application No. 433 of 1929
Judge
Reported in(1930)32BOMLR332
AppellantEmperor
RespondentSherif Dadumiyaji
DispositionApplication dismissed
Excerpt:
.....-- agreement to pay a certain amount for use and occupation-liability of the person in possession--lease-rent-farmer-'owner' and 'occupier', liability of.;the municipal corporation of bombay acquired certain premises, which were used as bullock and buffalo stables, for a public purpose. the corporation did not proceed with the demolition of the stables, and, on march 10, 1925, passed an agreement of farming the stables to the petitioner as licensee on his undertaking to pay rs. 180 per month 'as compensation for use and occupation by him as licensee.' all repairs and requisitions were to be attended by him and he was to give vacant possession of the premises on one month's notice. he used all the stables for his buffaloes except one which he used as a motor-garage. the municipal..........is called the rent.6. it is clear from the terms of the agreement that the applicant was put in exclusive possession of the premises although the time for which the property was to remain in the applicant's possession is not expressly specified. but there is a provision that he need not give vacant possession without a month's notice. that provision, in our opinion, implies that the exclusive possession or enjoyment of the property which the applicant was to have under the agreement was to be at least for a period of one month. further, there is a provision in the agreement that a sum of rs. 180 was to be paid every month in respect of the use and occupation of the premises by the applicant. the consideration here set out would, in our opinion, be the money rendered periodically.....
Judgment:

Mirza, J.

1. The applicant applies for revision of his conviction and sentence on a charge under Section 231 of the City of Bombay-Municipal Act.

2. The Bombay Municipality acquired in 1924 certain premises at Bapty Road for a public purpose which was the extension of the Municipal workshops. At the date of the acquisition sixteen parsons including the applicant were in occupation of the premises as tenants from the original owner and were using the premises as bullock and buffalo stables. The Municipality did not proceed with the demolition of the stables but allowed the occupants to continue on the premises by leave and license. Later the Municipality experienced a difficulty in collecting compensation from the occupants and on March 10, 1925, entered into an agreement with the applicant whereby the applicant was to pay to the Municipality a monthly sum of Rs. 180 as compensation for the use and occupation by him as licensee of the said premises. During the continuance of the agreement, the licensee was to be at liberty to continue the occupancy of the remaining fifteen occupants of the premises as licensees, to recover from them the amounts they had agreed to pry for their occupancy of the premises as licensees, and in case any of them vacated the premises to substitute for him any other occupant but on condition that such new occupant was to occupy the premises only as licensee and would vacate the same on being given forty-eight hours notice. The agreement further provided that the applicant was to give vacant possession of the premises to the Municipality on being given one month's notice.

2. It appears that the applicant is the owner of all the buffaloes that are now on the premises and is using one of the stalls on the premises as a place for garaging his motor car. On May 2, 1929, the Municipal Commissioner on behalf of the Municipality served a requisition on the applicant requiring him under Section 231 of the City of Bombay Municipal Act to drain the motor garage into the existing drain with all the necessary appliances and fittings. The requisition is dated April 24, 1929. The applicant having failed to comply with the requisition the present prosecution was launched against him.

3. In his statement before the learned Presidency Magistrate, 2nd Court, the applicant stated that he was a tenant of the Municipal Commissioner but was not a rent farmer. He admitted that in part of the stable he had kept buffaloes and that there was a garage where he had kept his motor car. He further admitted that all the buffaloes in the stable belonged to him.

4. It has been urged before us by Mr. Bhandarkar on behalf of the applicant that the applicant is not an owner or occupier of the premises within the meaning of Section 231 of the City of Bombay Municipal Act. In view of the applicant's statement before the Magistrate it is not open to Mr. Bhandarkar in our opinion to contend that the applicant is not the occupier of the motor garage in respect of which the requisition has been made. Mr. Bhandarkar has further contended that the requisition made by the Municipality is in respect of the premises which are alleged to be in the applicant's occupation as a rent farmer and the applicant is not a rent farmer under the terms of the agreement but only a licensee. The terms of the agreement no doubt do not use the terms lease, demise, or rent. But to constitute a lease it is not essential that such terms should be used.

5. A lease is defined in Section 105 of the Transfer of Property Act as.a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money,...to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

6. It is clear from the terms of the agreement that the applicant was put in exclusive possession of the premises although the time for which the property was to remain in the applicant's possession is not expressly specified. But there is a provision that he need not give vacant possession without a month's notice. That provision, in our opinion, implies that the exclusive possession or enjoyment of the property which the applicant was to have under the agreement was to be at least for a period of one month. Further, there is a provision in the agreement that a sum of Rs. 180 was to be paid every month in respect of the use and occupation of the premises by the applicant. The consideration here set out would, in our opinion, be the money rendered periodically within the terms of the definition in Section 105 of the Transfer of Property Act.

7. In order to determine whether the relation subsisting between the Municipality and the applicant is that of lessor and lessee are contended by the Municipality or of licensor and licensee as con tended by the applicant, regard must be had to the substance o: the agreement subsisting between them. The test to be followed in such cases is laid down by Halsbury in the article on ' Land lord and Tenant' in Vol. XVIII of the Laws of England, page 337, paragraph 770, as follows :-

It is essential to the creation of a tenancy of a corporeal hereditament that the tenant should have the right to the exclusive possession of the premises. A grant under which the grantee takes only the right to use the premises without exclusive possession operates as a license, and not as a lease, I: deciding whether a grant amounts to a lease, or is only a license, regard must be had to the substance of the agreement. If the effect of the instrument is t give the holder the exclusive right of occupation of the land, though subject t certain reservations, or to a restriction of the purposes for which it may be used it is a lease; if the contract is merely for the use of the property in a certain way and on certain towns, while it remains in the possession and control of the owner, it is a license. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee require that he should have exclusive possession.

8. The same principle is illustrated by the case of Glenwood Lumber Company v. Phillips [1904] A.C. 405 Lord Davey in his judgment observes:-

If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself.

9. In the case of Indian Hotels Co. v. Phiroz (1922) 25 Bum. L.R. 84 Fawcett J. in his judgment at page 89 in comparing the definition of a lease under Section 105 of the Transfer of Property Act and a license under Section 52 of the Indian Easements Act observes :-

Having regard to these definitions, there is no substantial difference between the Indian and the English law on the subject. The words ' right to enjoy ' in Section 105 of the Transfer of Property Act, when read with the rights of the lessee laid down in Section 10S of the same Act, clearly show that there should also be a right to exclusive possession to constitute a lease under the Transfer of Property Act. Therefore, I take it that the test of exclusive possession is the main one to be applied in deciding this ease.

10. The agreement dated March 10, 1925, amounts, in our opinion, to a lease. The money paid under the agreement is rent. If the applicant is the sole tenant of these premises he would be the occupier within the meaning of Section 231 and therefore liable to comply with the requisition. If he has allowed other persons to occupy parts of the premises and recovers money or any other consideration from them in respect of such occupancy whether it be called rent or compensation for use and occupation he would be a rent farmer. The agreement mentions in one of its preambles that the Municipality has agreed to farm the premises to the applicant. That also indicates that the intention of the agreement was for the applicant to be the rent farmer in respect of these, premises in relation to the then occupants of the premises. If the applicant is to be held to be the rent farmer in respect of these premises he would be deemed to be the ' owner ' according to the ruling in Emperor v. Aziz Gaffoor (1927) 30 Bom. L.R. 1439.

11. The conviction, in our opinion, is correct. The application is dismissed and the rule discharged.

Broomfield, J.

12. I agree and have nothing to add.


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