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Vithal Krishnaji Nivendkar Vs. the State - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 916 of 1959
Judge
Reported in(1959)61BOMLR1662
AppellantVithal Krishnaji Nivendkar
RespondentThe State
DispositionAppeal dismissed
Excerpt:
.....other than the standard rent or the permitted increases, in respect of the grant, renewal or continuance of a lease of any premises,.shall, on conviction, be punished with imprisonment for a term which may extend to six months and shall also be punished with fine which shall not be less than the amount of the fine, premium or sum or deposit or the value of the consideration received by him. 4. is the amount received by the accused fine or premium or other like sum or deposit or any consideration other than the standard rent? if it is not fine or premium it is not 'other like sum' because in the context in which it is used the expression 'other like ;sum' must be read ejusdem generis with fine or premium. in its normal connotation the expression 'consideration' in the law of..........received rs. 3,251 from the complainant on behalf of the landlord.4. is the amount received by the accused fine or premium or other like sum or deposit or any consideration other than the standard rent? the amount is not received as fine, and we will assume that the amount was not received as premium: if it is not fine or premium it is not 'other like sum' because in the context in which it is used the expression 'other like ;sum' must be read ejusdem generis with fine or premium. but, in our judgment, the amount received by the accused is 'any consideration other than the standard rent...in respect of the grant of a lease of...premises'. the expression 'consideration' is used in its normal connotation, and is not restricted to consideration other than pecuniary consideration.5. we are.....
Judgment:

Shah, J.

1. The accused, Vithal Krishnaji Nivendkar, was tried before the Presidency Magistrate, 7th Court, Dadar, Bombay, for an offence under Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947. The learned Magistrate convicted the accused of the offence charged and sentenced him to suffer simple imprisonment for one day and to pay a fine of Rs. 3,251 and in default of payment of fine to suffer simple imprisonment for one month. Against that order of conviction and sentence, this appeal has been preferred.

2. The complainant is one Parduman Ramsingh, who migrated to Bombay sometime in the year 1949. In November 1957 the complainant came to learn that residential accommodation in Waghe Hall at St. Xavier Road at Parel was available. The complainant went to the office of the Tillori Kunbi Samajonnati Sangh ;and met the accused, who was the President of the Sangh and responsible for the management of the building of the Sangh. The accused demanded Rs. 4,000 as pugree and Rs. 85 p.m. as rent for granting on rent residential accommodation in the building of the Sangh to the complainant. There was some bargaining between the complainant and the accused and ultimately an amount of Rs. 3,251 was settled as the amount, to be paid by the complainant to the accused as consideration for granting the tenancy. The accused asked the complainant to write a letter dictated by the accused wherein it was recited that the amount of Rs. 3,251 was to be a donation by the complainant to the Sangh. At the date of these negotiations, the building of the Sangh was under construction and it was expected to be readv sometime in February 1958. In January 1958 the complainant paid three amounts of Rs. 1,000, Rs. 500 and Rs. 751, and he paid Rs. 1,000 on Mav 4, 1958. The complainant occupied two rooms leased to him in Tillori Kunbi Sangh Waghe Hall building on May 1, 1958. The accused gave to the complainant a consolidated receipt for Rs. 3,251. Thereafter the complainant also paid Rs. 85 as rent for one month; and a receipt was given by the accused. The complainant then filed a complaint in the Court of Presidency Magistrate, 7th Court, against the accused charging the accused with having committed an offence under Section 18(1) of the Act LVII of 1947, The accused admitted that he had received the amount of Rs. 3,25.1. Pie, however, pleaded that he was not the landlord and that, in any event, the amount was received by him as a donation to the Trust and not as consideration for granting the tenancy. The learned Judge, on the evidence, rejected the contentions raised by the accused and convicted and sentenced him as stated hereinbefore.

3. Section 18(i) of the Act LVII of 1947 in so far as it is material provides:

If any landlord either himself or through any person acting or purporting to act on his behalf or if any person acting or purporting to act on behalf of the landlord receives any fine, premium or other like sum or deposit or any consideration other than the standard rent or the permitted increases, in respect of the grant, renewal or continuance of a lease of any premises,... shall, on conviction, be punished with imprisonment for a term which may extend to six months and shall also be punished with fine which shall not be less than the amount of the fine, premium or sum or deposit or the value of the consideration received by him....

A landlord receiving1 unlawful charges or a person on behalf of' the landlord receiving unlawful charges is liable to be punished under Section 18(1) of the Act. 'The accused is not the landlord within the meaning of Section 5 of the Bombay Act LVII of 1947, but admittedly lie has received Rs. 3,251 from the complainant on behalf of the landlord.

4. Is the amount received by the accused fine or premium or other like sum or deposit or any consideration other than the standard rent? The amount is not received as fine, and we will assume that the amount was not received as premium: if it is not fine or premium it is not 'other like sum' because in the context in which it is used the expression 'other like ;sum' must be read ejusdem generis with fine or premium. But, in our judgment, the amount received by the accused is 'any consideration other than the standard rent...in respect of the grant of a lease of...premises'. The expression 'consideration' is used in its normal connotation, and is not restricted to consideration other than pecuniary consideration.

5. We are unable to agree with the opinion tentatively expressed by Chagla C.J. in Karamsey Kanji v. Velji Virji : (1954)56BOMLR619 on which Mr. Bhasme relies. In that case, the learned Chief Justice has observed that there was considerable force in the submission that the consideration contemplated in Section 18(1) of the Act LVII of 1947 is not a pecuniary consideration but consideration other than pecuniary. The observation was not strictly necessary for the purpose of that case; and, we may, with respect, observe that there is nothing in the context in which the expression 'consideration' occurs in Section 18(1) of the Act, which warrants a restricted interpretation. In its normal connotation the expression 'consideration' in the law of contracts, includes consideration pecuniary as well as non-pecuniary, and there is no sufficient indication in the context which may justify us in restricting its connotation to non-pecuniary eonsideration. We are Unable to hold that the penalty elaiise, which requires the Court to impose a fine which shall not be less than the value of consideration, supports the view that the expression 'consideration' was used in a restricted sense.

6. The contention of the accused that, in any event, there was no nexus between the donation of Rs. 3,251 and grant of the tenancy of the premises in Waghe Hall has no substance. There is clear evidence, on the record, of the complainant and it does not appear to have been shaken in cross-examination, that the accused had as consideration for granting a tenancy of premises in the Waghe Hall demanded initially an amount of Bs. 4,000 as pugree and ultimately he reduced his demand to Rs. 3,251. The learned Magistrate accepted that evidence and we see no reason to differ from him. If acting on tehalf of the Sangh, the accused, as its president, demanded from the complainant a certain amount for giving to the complainant in lease a part of the building of the Sangh, in our judgment, it is consideration in respect of the grant of a lease within the meaning of Section 18(1) of Act LVII of 1947. There is, on the evidence, a clear nexus established between the demand of what is called', euphemistically donation, and the grant of the lease.

7. Our attention was invited by Mr. Bhasme to the decision of the Supreme Court in Tolaram Relumal v. State of Bombay : [1955]1SCR158 and reliance was placed upon, the following passage (p. 1209) :.The section does not make the intention punishable; it makes an act punishable which act is related to existence of a lease. It does not make receipt of money on an executory contract punishable; on the other hand, it only makes receipt of money on the grant, renewal or continuance of the lease of any premises punishable Bind unless. the lease comes into existence, no offence can be said to have been committed by the person receiving the money,

and also upon the view that the words 'in respect of' used in Section 18(f) of the-Bombay Act LVII of 1947, in their widest import must mean relating, to' or 'with reference to' and that this relationship must be predicated of the grant, removal or continuation of a lease, and unless a lease comes into existence simultaneously or near about the time the money is received, it cannot be said that the receipt was 'in respect of' the grant of a lease. In that case a person who was constructing a building, received from his prospective tenant Rs. 2,400 as consideration under an executory agreement to lease certain rooms-in the building when completed, and it was held that the executory contract was not hit by the provisions of Section 18. But we are not, in this case, concerned with a mere executory contract pursuant to which a lease has not 'actually come into existence'. On May 1, 1959, the premises occupied by the complainant were in existence and a receipt was given by the accused in respect of the payments made and the premises were in fact given on lease to the complainant by the accused and the complainant occupied the same as tenant of the Sangh. In our view, the receipt of the money in respect of which an acknowledgment was given on May 1, 1958.,cpupled with the grant of the tenancy on and from that date made the payment of money consideration ins respect of the grant of the lease of the premises within the meaning of Section 18(1) of the Act LVII of 1947.

8. On that view of the case, the learned Magistrate was, in our judgment, right in convicting the accused for the offence under Section 18(1) of the Act LVII of' 1947. We, therefore, confirm the conviction of the accused and the sentence passed upon him. We give one month's time from this day to the accused to* pay the fine. The appeal is dismissed. Interim stay vacated.


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