Associated Hotels of India Ltd., Delhi
Vs. S. B. Sardar Ranjit Singh [1967] INSC 292 (7 December 1967)
07/12/1967 BACHAWAT, R.S.
BACHAWAT, R.S.
MITTER, G.K.
CITATION: 1968 AIR 933 1968 SCR (2) 548
CITATOR INFO :
F 1974 SC 280 (6) R 1987 SC2055 (6) R 1989
SC1141 (19)
ACT:
Delhi and Ajmer Rent Control Act (38 of
1952), s. 13(1) proviso (b), (c) and (k)-Hotel premises Constituents of subletting-Knowledge
of sub-letting, if waiver.
HEADNOTE:
The respondent-landlord of a hotel filed a
suit for eviction of his tenant-appellant under s. 13(1) proviso (b) and (c) of
the Delhi and Ajmer Rent Control Act, 1952 on the allegation that the appellant
had sub-let several rooms.
These occupants were doing business, which
were not confined to the residents of the hotel. The occupants were given exclusive
possession of the rooms occupied by them. The appellant did not retain any
control and dominion over these rooms. It was not a condition of the grants
that the keys would be left at the reception counter, or that the keys would be
retained by the appellant. The occupants were at liberty to take away the keys
if they liked. The occupants availed themselves of the services of the hotel
sweeper for their own convenience. The appellant retained control of the corridor,
but the entrance to the corridor was open day and night. The occupants paid
monthly sums to the appellant as the consideration of the sub-leases. The appellant
tenant denied the allegations and pleaded that the respondent landlord had
waived the breaches, if any. The suit was decreed which the High Court, in
appeal maintained HELD : The landlord was entitled to the decree for eviction.
[558 B] On the question whether the occupier
of a separate apartment in a premises is a licensee or a tenant, the test is
has the landlord retained control over, the apartment Normally, an occupier of
an apartment in a hotel is in the position of licensee as the hotel-keeper
retains the general control of the hotel including the apartment. But it is not
a necessary inference of law that the occupier of an apartment in a hotel is
not a tenant. A hotel-keeper may run a first class hotel without sub-letting
any part of it. Where as in this case, the hotel-keeper retained no control
over the apartment, the occupier was in the position of a tenant.
The onus to prove sub-letting was on the
respondent. The respondent discharged the onus by leading evidence showing that
the occupants were in exclusive possession of the apartments for valuable
consideration. The appellant chose not to rebut this prima facie evidence by
proving and exhibiting the relevant agreements. [553 D; 554 C-D, F-H;
555 C; 556 E] Under s. 2(g)
"premises" does not include " a room in a hotel or lodging
house". The sub-lessee of a room in a hotel is, therefore, not a tenant
and cannot claim protection under s. 13 from eviction, nor can he ask for
fixation of standard rent. But, because a room in a hotel is not premises, it
does not follow that the room is not a part of the hotel premises or that a
sub-letting of the room is not a contravention of cls. (b) and (c) of the
proviso to s. 13(1). [555 F-G 556 A] Associated Hotels of India Ltd. v. R. N.
Kapoor, [1960]1 S.C.R. 368, followed.
Addiscombe Garden Estates Ltd. & Anr. v.
Grabbe and Ors.
[1958] 1 QB. 513 and Helman v. Horsham
Assessment Committee, [1949] 2 K.B.
335,referred to.
549 A waiver is an intentional relinquishment
of a known right.
There can be no waiver unless the person
against whom the waiver is claimed had full knowledge of his rights and of facts
enabling him to take effectual action for the enforcement of such rights.
Assuming that the landlord can waive the requirement as to consent, it was not
shown that the respondent waived it. It is said that the respondent knew of the
sub-lettings as be frequently visited the hotel up to 1953 and he must have
known of the occupation of some of the occupants. But he came to know of the
other lettings in 1958 only. Moreover, the precise nature of the grant was
-never communicated to the respondent. [557 B-D] Dhanukdhari Singh v. Nathima
Sahu, [1907] 11 C.W.N. 852, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1249 of 1967.
Appeal from the judgment and decree dated
July 21, 1967 of the Delhi High Court in Regular First Appeal No. 166-D of
1965.
A.K. Sen, Rameshwar Nath, P. L. Vohra and
Mahinder Narain, for the appellant.
Bishan Narain, Radhey Mohan Lal and Harbans
Singh, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. This appeal arises out of a suit for ejectment instituted by a
landlord against a tenant. It is common case that the suit is governed by the
provisions of' the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952)
hereinafter referred to as the Act. The material provisions of s. 13(1) of the,
Act are as follows :
"13. (1) Notwithstanding anything to the
contrary contained.
in any other law or any contract, no decree
or order for the recovery of possession of any premises shall be passed by any
Court in favour of the landlord against any tenant (including a tenant whose
tenancy is terminated) :
Provided that nothing in this sub-section
shall apply to any suit or other proceeding for such recovery of possession if
the Court is satisfied(b)that the tenant without obtaining the consent of the
landlord in writing has, after the commencement of this Act,(i)sub-let,
assigned or otherwise parted with the possession of the whole or any part of
the premises; or 550 (ii) used the premises for a purpose other than that for
which they were let; or, (c) that the tenant without obtaining the consent of
the landlord has before the commencement of this Act,(i)sub-let, assigned or
otherwise parted with the possession of, the whole or any part of the
premises;, or (ii)used the premises for a purpose other than that for which
they were let; or (k)that the tenant has, whether before or after the
commencement of this Act, caused or permitted to be ,caused substantial damage
to the premises, or notwithstanding previous notice has used or dealt 'with the
premises in a manner contrary to any condition imposed on the landlord by the
Government, or the Delhi Improvement Trust while giving him a lease of the land
on which the premises are situated;" The respondent constructed the
building known as the Hotel Imperial, New Delhi, on land leased to him by the
Secretary of State for India in Council under a perpetual lease deed dated July
9, 1937. By a deed dated August 18, 1939, he leased to the appellant the hotel
premises together with fittings and furniture for a term of 20 years commencing
on September 15, 1939. On January 28, 1958, the respondent instituted the
present suit alleging that in breach of the express conditions of the lease
dated August .18, 1939, the appellant sub-let portions of the premises and made
unauthorised additions and alterations in the premises, that on such breaches
he was entitled to determine the lease and he did so, by notice in writing
dated January 6, 1958. He claimed eviction of the appellant on the grounds
mentioned in cls. (b), (c) and (k) of the proviso to s. 13(1) of the Act. The
appellant filed its written statement on April 3, 1958 denying most of the
material allegations in the plaint.
The appellant also pleaded that the
respondent had waived the breaches, if any, of the conditions of the lease by
accepting rents with knowledge of such breaches and particularly by accepting
rent on or about January 3, 1958.
On April 24, 1958, Sri P. L. Vohra, counsel
for the appellant, made the following statement before the trial Court :
"The plaintiff can seek ejectment of the
defendant only under section 13 of Act 38 of 1952. In case the 551 plaintiff
succeeds in establishing the liability of, the defendant for ejectment on any
of the grounds given in .section 13 of the Rent Act, the defendant would not
seek any protection under the terms of the lease deed dated 18th August, 1939
executed between the parties, as regards the period of lease fixed therein. .
." Having regard to the pleadings and statement of counsel, the Court
settled the following issues on May 12, 1958 :
"1. Whether the defendant had sublet,
assigned or otherwise parted with possession, of any part of the suit premises
before the commencement of Act 38 of 1952 ?
2. If so, was the same done with express or
implied consent of the plaintiff ?
3. Whether the defendant had sublet, assigned
or otherwise parted with possession of any part of the suit premises after the
commencement of Act 38 of 1952 ? 4.If so, was the same done with the prior
consent in writing of the plaintiff ? 5.Whether the defendant has used the
tenancy premises for a purpose other than that for which they were let ?
6. Whether the defendant has caused
substantial damage to the tenancy premises ?
7. Whether the defendant notwithstanding
previous notice has been. using and dealing with the tenancy premises in a
manner contrary to the conditions imposed on the plaintiff by, the Government
while giving him lease of the site of the tenancy premises ?
8. Is the defendant entitled to special cost
?
9. Whether the plaintiff is estopped or has
waived his right to seek ejectment of the defendant on any of the grounds
mentioned above ? If so, what and to what effect ? 10.Whether the defendant is
entitled to sublet any part of the hotel premises even when there was a clause
to the contra in the lease dated the 18th August, 1939. and in face of
statutory provisions under the Rent Control Act (for reasons given in para 16
of the amended written statement) ?" A tenant holding premises under a
subsisting lease is protected by the lease and needs no protection under the
Rent Act. It was open to the appellant to contend that it was protected by 552
the terms of the lease dated August 18, 1939, that the breaches, if any, of the
conditions of the lease had been waived by the respondent and that the lease
had not determined. But the appellant deliberately elected to seek protection
under s. 13 of the Act only. The appellant's counsel made a' formal statement
in the trial Court that the appellant would not seek any protection under the terms
of the lease deed as regards the period of the lease fixed therein. The Court
accordingly settled the ten issues. Issue No. 8 was not pressed. All the other
issues relate to thegrounds of eviction mentioned in cls. (b), (c) and (k) of
theproviso to s. 13(1) of the Act. Issue No. 9 raises the questionof waiver of
the respondent's right to seek ejectment on those grounds. Thus, the only
questions in issue between the parties was whether the appellant was entitled
to protection from eviction under s. 13 and whether any ground for eviction
under the Act was made out. The case was tried and decided on this footing. We
have come to this conclusion after a close examination of the 'pleadings,
particulars, statement of counsel, issues and the judgment of the trial Court.
No issue was raised on the question whether the breaches of the express
conditions of the lease had been waived by the respondent, and whether the
lease was still subsisting. The appellant sought to raise this plea in the High
Court and also in this Court Having regard to the deliberate stand taken by the
appellant in the trial Court, the appellant cannot be allowed to raise the plea
at a later stage. The lease determined by efflux of time on September 15, 1959.
Had the appellant taken the plea that the lease had not determined by
forfeiture on the date of the institution of the suit, it is possible that the
respondent might have filed another suit for ejectment of the appellant
immediately after September 15, 1959. Because of the stand taken by the
appellant, it was not necessary for the respondent to file another suit. This
appeal must be decided on the footing that the lease had determined by
forfeiture on the date of the institution of the present suit. The respondent
is entitled to a decree for eviction if any of the grounds mentioned in cls.
(b), (c) and (k) of the proviso to s. 13(1) is made out.
The trial Court answered issue No. 5 in the
negative. With regard to all the other issues, the trial Court found in favour
of the respondent, and held that the grounds of eviction mentioned in cls.
(b)(1), (c)(i) and (k) were proved. With regard to the ground of eviction
mentioned in cl. (k), the trial Court held that the appellant was entitled to
relief on certain conditions. The trial Court, however, held that the
respondent was entitled to an unconditional decree, for eviction on the ground
of subletting mentioned in cls. (b)(i) and (c)(i). The appellant preferred 553
an, appeal to the High Court. The High Court agreed with all the findings of the
trial Court, and dismissed the appeal.
The two Courtsconcurrently found that the
appellant had sub-let several rooms, counters, showcases -and garages.
The two Courts found that the appellant had
sub-let rooms to (1) Pan American World Airways, (2) Mercury Travels, India
(Private) Ltd., travel agents, (3) Indian Art Emporium, dealers in curios and
jewellery, (4) Shanti Vijay and Co., dealers in jewellery, (5) Roy and James,
hairdressers, (6) Sita World Travels, travel agents and (7) Ranee Silk Shop, dealers
in saris and curios. The businesses of the sublessees were not confined to the
residents of the hotel.
The letting to Pan American World Airways and
Indian Art Emporium were before the commencement of the Act and the lettings to
Mercury Travels, Shanti Vijay and Co., and Roy and James were after the
commencement of the Act. Sita Travels and Ranee Silk Shop were inducted as
tenants after the institution of, the suit. The entrances to the rooms were in
,the main corridor of the hotel on the ground floor.
The concurrent finding is that the occupants
were given exclusive possession of the rooms occupied by them. The appellant
did not retain any control and dominion over the rooms. It is possible that the
keys of the apartments were sometimes left at the reception counter, but the
evidence on this point was not convincing. It was not a condition Of the grants
that the keys would be left at the reception counter, or that the duplicate
keys would be retained by the appellant. The occupants were at liberty to take
away the keys if they liked'. The occupants availed themselves of the services
of the hotel sweeper for, their own convenience. The appellant retained control
of the corridor, but it is common case before us that the entrance to the
corridor was open day and night. The occupants paid monthly sums to the
appellant as the consideration of the sub-leases. The consideration though
described as license fee was in reality rent. The portion occupied by Roy and
James has an interesting history. It was formerly sub-let to R. N., Kapoor. In
Associated Hotels of India Ltd. v. R. N. Kapoor(1), this Court held by a
majority on a construction of the grant to R. N. Kapoor that he was a lessee
and not a licensee. Roy and James began to occupy this portion of the premises
from February, 1955. According to the appellant, the agreements with Roy and
James, Mercury Travels and Shanti Vijay and Co., were in writing. The appellant
produced several documents in Court at an early stage of the suit. The
appellant's case was that these documents were the relevant agreements.
According to the respondent, the documents were not genuine and the real agree(1)
[196] 1 S.C.R. 36F 554 meats were being withheld. The stamp auditor noted on
the documents the deficiency-in stamps and penalty leviable on them on the
footing that they were lease deeds. The appellant did not contest this note nor
paid the penalty and deficiency as directed by the trial Court. -The surprising
feature of the case is that the appellant did not attempt to prove any of the
documents. Where the agreement is in writing, it is a question of construction
of the agreement whether the grant is a lease or a license. It was for the
appellant to prove the written agreements, and the Court could then construe
them. The appellant has not brought before the Court the best and the primary
evidence of the terms on which the apartments were being occupied. The onus to
prove sub-letting was on the respondent. The respondent discharged the onus by
leading evidence showing that the occupants were in exclusive possession of the
apartments for valuable consideration. The appellant chose not to rebut this
prime facie evidence by proving and exhibiting the relevant agreements. The
documents formed part of the appellant's case. The appellant bad no right to
withhold them from the scrutiny of the Court. In the absence of the best
evidence of the grants, the Courts below properly inferred sub-lettings from
the other materials on the record.
The test of exclusive possession, though not
conclusive, is a very important indication in favour of tenancy, see Addiscombe
Garden Estates Ltd. and Anr. v. Crabbe and Ors.(1) The argument is that as the
landlord is living in the premises, that fact raises the presumption that he
intends to retain the control of the whole of the premises and that the
occupation of the other parts is that of a lodger or inmate and not that of a
tenant, and reliance was placed on Helman v. Horsham Assessment Committee(2)
and the cases referred to therein. Those cases consider what constitute
rateable occupation. In the case last cited, Denning, L. J. said that a person
who is regarded as a lodger for rating purposes need not necessarily be a
lodger for the purposes of the Rent Restriction Acts, while Evershed L.J. seems
to have expressed a contrary opinion.
Normally, an occupier of an apartment in a
hotel is in the position of a licensee as the hotel-keeper retains the general
control of the hotel including the apartment. But it is not a necessary
inference of law that the occupier of an apartment in a hotel is not a tenant.
Where, as in this case, the hotel-keeper retains no control over the apartment,
the occupier is in the position of a tenant. In Halsbury's Laws of England,
Vol. 23, Art. 1028, p. 433, the law is accurately summarised thus "A
lodger who has no separate apartment is only a licensee, and, even though he
has a separate apart(1) [1958] 1 Q.B. 513, 525.
(2) [1949] 2 K.B. 335.
555 ment, he has not in law an exclusive
occupation, and is therefore in the position of a licensee, if the landlord
retains the general control and dominion of the house, including the part
occupied by the lodger; but, if in fact the landlord exercises no control over
that part, the occupier is a tenant. The occupier does not, however, become a
lodger merely by reason of the fact that the landlord resides on the premises
and retains control of the passages and staircases and other parts used in
common." On the question whether the occupier of a separate apartment in a
premises is a licensee or a tenant, the test is-has the landlord retained
control over the apartment ? The fact that the apartment is a room in a hotel
may lead to the inference that the hotel-keeper retains the general dominion of
the en-tire hotel including the apartment and that the occupier is in the
position of a lodger or inmate. But the inference is not a necessary inference
of law. Where, as in this case, the best evidence of the -rant was withheld
from the scrutiny of the Court, the inference was rightly drawn that the
occupiers were tenants.
At the hearing of this appeal, the appellant
moved an application for reception of the documents as additional evidence. The
genuineness of the documents was disputed by the respondent. In the Courts
below, the appellant made no attempt to prove these documents. We found no
ground for directing a new trial. Having regard to all these facts, we
dismissed the application.
The hotel building constitutes premises
within the meaning of s. 2(g) of the Act.' It is because the hotel building
constitutes Premises that the appellant can claim protection from eviction
under the Act. A room in a hotel is a part of the hotel premises. A sub-letting
of a room in a hotel in contravention of cls. (b) and (c) of the proviso to s.
13(1 ) is a ground for eviction under the Act. Section 2(g) provides that
'premises' does not include " a room in a hotel or lodging house."
The sub-lessee of a room in a hotel is, therefore, not a tenant and cannot
claim protection under s. 13 from eviction, nor can he ask for fixation of
standard rent. see Associated Hotels of India Ltd. v. R. N.
Kapoor(1). If the interest of the tenant of
the hotel premises is determined, the sub-tenant to whom a room in the hotel
has been lawfully sublet becomes under s, 20 a direct tenant of the landlord,
It may be that when the sub-tenant of a room in a hotel becomes a direct tenant
under s. 20 he enjoys the protection of the Act because the room is no, longer
a room in a hotel. But that point does not arise and need not be decided.
Because a room in a hotel is not (1) [1960] 1 S.C.R. 368.
556 premises, it does not follow that the
room is not a part of the hotel premises or that a sub-letting of the room is
not a contravention of cls. (b) and (c) of the proviso to s.
13(1).
The Courts below concurrently found that the
sub-lettings after the commencement of the Act were made without obtaining the
consent of the landlord in writing, and the sub-lettings before the
commencement of the Act were made without obtaining the consent of the landlord
either orally or in writing. We are not inclined to interfere with this
concurrent finding.
It is said that by the lease deed dated
August 18, 1939 the respondent impliedly consented to this sub-letting. Clauses
21 .and 22 of the lease are in these terms "21. That the lessee shall not
be entitled to either transfer or sub-lease the premises or any part thereof to
any other party without the written consent of the lessor and on such transfer,
both the transferee and the lessee shall be liable for the payment of rent to
the lessor and responsible to deliver,possession of the building and equipments
in the same condition as when taken.
22.That the lessee will use the premises only
for the purpose of running a first class hotel." It is -,aid that for the
purpose of running a first class hotel it was necessary to sub-let the
apartments. It is impossible to accept the contention. A hotel-keeper may run a
first class hotel without sub-letting any part of it.
Clause 21-clearly provided that the lessee
shall not sublease the hotel premises or any part thereof. In the teeth of cl.
21, it is impossible to read in cl. 22 an implied consent to sub-letting.
Reliance is placed on the correspondence
passed between the Land Development Officer, New Delhi and the respondent between
April 1948 and February 1949 for establishing that the respondent gave written
consent to the sub-lettings. The Land and Development Officer was then
complaining of the occupation of portions of the premises by Pan American World
Airways and other persons. By his letters dated November 4, 1948 and February
23, 1949, the respondent requested the Land and Development Officer to
regularise the matter adding that in an first class hotels counters of
air-lines and show-rooms of jewellery and curios were always provided.
These letter,.; do not amount to a consent in
writing to sub-lettings of portions of the hotel to the persons mentioned
therein. Moreover, the consent, if any, 'was to the sub-lettings made before
1949 and not to the sublettings made thereafter. It is not possible to infer
from these letters a general consent to all sub-lettings.
557 It is argued that the respondent waived
the requirement of consent to the sub-letting. Any subletting in breach of the
provisions of cl. (b) of the proviso to S. 13 ( 1) is an offence punish-able
under s. 44. Assuming that the landlord can waive the requirement as to
consent, it is not shown that the respondent waived it. A waiver is an
intentional relinquishment of a known right., There can be no waiver unless the
person against whom the waiver is claimed had full knowledge of his rights and
of facts enabling him to take effectual action for the enforcement of such
rights.
See Dhanukdhari Singh v. Nathima Sahu(1). It
is said that the respondent knew of the sub-lettings as he frequently visited
the hotel. It appears that he visited the hotel up to 1953 and he must have
known of the occupation of R. N. Kapoor, Indian Art Emporium and Pan American
World Airways.
But he came to know of the other lettings in
January 1958 only. Moreover, the precise nature of the grant was never communicated,
to the respondent. The Courts below rightly held that the respondent did not
waive his right to evict the appellant on the ,-rounds mentioned in cls. (b)
and (c) of the proviso to s. 13 (1).
We are therefore satisfied that the
respondent is entitled to evict the appellant on the ground of sub-letting of
the rooms. The Courts below held that the appellant had also sublet several
counters, show-cases and garages to various persons. We express no opinion on
the question whether there was any sub-letting of the counters, show-cases and
garages. The sub lettings of the rooms are sufficient grounds of eviction
tinder cls. (b) and (c) of the proviso to s. 13(1).
Clause 2(v) of the head lease granted by the
Government to the respondent provided that the respondent would not, without
the previous consent in writing of the Chief Commissioner.. Delhi or a duly
authorised officer, erect or suffer to be erected on any part of the demised
premises any building other than the buildings erected there on the date of the
lease. The appellant had due notice of the conditions of the head lease.
Notwithstanding such previous notice, the appellant dealt with the premises in
a manner contrary to the conditions imposed by cl. 2 (v). The Courts below
found that contrary to this condition, the appellant made several unauthorised
constructions without obtaining the requisite consent. To give one
illustration, the appellant admittedly constructed a room 16 ft. 6 in X 19 ft.
6 in. with R.C.C. slab and brick masonry
walls. This newly constructed room was -let to Shanti Vijay and Co. On the
ground of unauthorised construction of this room alone it must-be held that the
appellant in contravention of cl. (k) of the proviso to s. 13 (1),
notwithstanding previous notice, dealt with the premises in a manner contrary
to (1) (1907) 11 C.W.N. 848, 852.
558 a condition imposed on the respondent by
the Government while ,giving him a lease of the land on which the premises are
situated. The notice of the conditions imposed by the head lease was sufficient
notice for the purposes of cl.
(k). The ground of eviction under cl. (k) was
thus made out. The Courts below also held that the appellant caused substantial
damage to the premises. We express no opinion on it, and this question is left
open.
It follows that the respondent is entitled to
evict the appellant on the grounds mentioned in cls. (b) (i), (c) (i) and (k)
of the proviso to s. 13(1).
In the result, the appeal is dismissed with
costs. The execution of the decree is stayed for a period of six months from
today. The appellant through Mr. A. K. Sen gives an undertaking that the
appellant will hand over to the respondent, on the expiry of six months, vacant
possession of the entire hotel premises except the portion in the possession of
sub-lessees.
Y.P. Appeal dismissed.
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