Vithal Krishna Ji Nivendkar v. Parduman Ram Singh & Another

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 52 of 1960. Appeal by special leave from the judgment and order dated September 9, 1959, of the Bombay High Court in Criminal Appeal No 916, of 1959. R. Gopalakrishnan, for the appellant. H. R. Khanna and R, H. Dhebar, for the respondent No. 2. 1962. March 27. The Judgment of the Court wa.8 delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, raises the question whether a sum of money paid ostensibly as a donation by a person to the person acting on behalf of the landlord, which was a charitable trust, in respect of tho grant of a lcaso of the premises, oame within the expression 'fine, premium or other like sum or deposit or any consideration other than the standard rent' in sub-s. (1) of s. 18 of the Bombay 65 Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. Act LVII of 1947), hereinafter called the Act. The question arises in these circumstances.

The appellant was the President, Trustee and Secretary of the Tillori Kunbi Samajonnati Sangh (hereinafter called the Sangh), Bombay, in 1958. The Sangh was a public trust registered under the Bombay Public Trusts Act, 1950. The first respondent approached him for taking on rent one of the residential blocks of W aghe Hall at St. Xavier Road, Parel Bombay, which was owned by the aforeHaid 8augb. Tho appollant agreed to grnnt the lease of tho premises at a monthly rout.al of Rs.85/- in favour of the firnt respondent on payment of Rs.3201/- as donation to the building fund of the said Sangh. The first respondent paid this amount in four instalments, three of whioh were paid prior to May 1, 1958, and the fourth, of Rs.1,000/-, on May I, 1958, before his actually occupying the premises. The appellant admits the receipt of this amount of Rs.3251/-, for donation to the building fund. He contends that he was not a. 'landlord' as defined in the Act.

The Presidency Magistrate, 7th Court, Dadar, held that the amount was received as a premium, as a condition precedent for letting the premises to the first respondent and that therefore the appellant oomm i tted the offence under s.18( I ) of the Act. On appeal, the High Court of Judicature at Bombay held that aforesaid payment, even if it did not come within the expression 'premium or other like sum' for granting the tenancy of the premises, it was received by th~ appellant as 'consideration other t,han the standard rent' in respect of tho grant of a lease of the premises and therefore the conviction was correct. It acGordingly dismissed the appeal. It is against this order that the appellant has filed thiti appeal. Vitt.al KrishnoJi NivendkaT Parduman Ram Singh Vit.hal Kriihnoji JVfoeru//clJf' Parduman 1,l.,,. Singh Raihuhar Doral J. 66 SUPREME COUR'l' REPORTS (1963)

Learned counsel for the appellant has urged that various enactments allowed companies to receive donations and that the Memorandum of .Association and the Rules of the Sangh also permitted receipt of gifts of money, that the first respondent made the donation voluntarily and that therefore the donation ·cannot amount to a 'premium' or 'consideration' contemplated by subs.( l) of s.18 of the Act. The fact that the Sangh can legally' received donations from persons whether belonging to the Tillori Kunbi community or not has no bearing on the question before us. If the donation has been reoeived in respect of the grantiu.l( of the lease and not as :i free donation for tho advancement of the purpose of the Sangh, it will come within the expresHion 'premium' or 'consideration' in s.18.

Both the Courts below have held that the so called donation was not a free gift to the Sangh but was paid by the first respondent and received by the appellant for the letting of tho premises to the first respondent. There is evidence on the record to support this finding of fact. We see no reason to consider the finding vitiated by any error of law. Our attention has been drawn by the learned counsel for the appellant to the letter dated July 2, 1958, sent by the first respondent to the Secretary of the Sangh. 'l'he first respondent said, in paragraph 1: " ... I became a tenant of oilc of your ground floor blocks by paying a donation of Rs.3251/- only and in return I was promised a clean new block." This statement in no way supports the contention for the appellant that the amount was paid as a free gift for furthoring the objects of the Sangh. On the other hand, it clearly 1tates that the first I 67 respondent became a tenant by paying a donation of Rs.3251/-.

The mere use of the word 'donation' does not take away the effect of the other expressions used which clearly supports the finding of the High Court that the payment was made for the purppse of getting ~he tenancy of the premises. It was further urged that charitable trusts are exempt from the operation of the Act and reference was made to the provisions of s. 4 of the Act. Clause (ii) of sub-s.(2) of this section provides that the State Government may direct that all or any of the provisions ·of ·the Act shall not, subject to such conditions and terms af it may specify, apply genera.Uy to premises held by a public trust for a religious or charitable purpose and let at nominal or concessional rent. There is nothing on the record to show that the State Government had issued any such directions. Further, the amount charged for the premises let to th~ first respondent cannot be said to be . nominal and has not been shown to be concessional rent.. This contention therefore has· no foroe.

The, contention that the appellant does not oome within the expreBBion 'landlord' defined in sub-s.(3) of s.5 has no force. ,The expression 'landlord' includes a person who is receiving, or is entitled to receive, rent in respect of any premises on account, or on behalf, or for the benefit of any other person, or as a trustee for any other person. The appellant was trustee of the Sangh. He was receiving rent on account and on behalf of the Sa.ngh and clearly therefore he comes within tihe expression 'landlord' as defi· ned in the Act. It is further contended that the a.mount pa.id d·oes not· come within the expressions 'premium' or 'consideration' in sub-s.{l) of s.18 of the Act. We do not agree. 'Premium means any amount paid for the purpose of getting a lease. It was 196! V itlial Irrisli noji Nivendkar P.rdum6n Rom SU.,11 ~Ragliubar Dltflul .1. Vitlial Krirh11aii Nive11dkar Parduma11 R•m Sinch.

Raghubar Dayal J, 68 certainly paid as >t •consideration for obtaining the lease in this case. \Ve agree with the High Court that there is no reason to restrict the expression 'consideration' to non-pecuniary oonsideration alone, as was held in Karamsey Kanji v. Valji Virji (') No good reason exists for rest rioting tile meaning of this word to non-pecuniary consideration alone, even though any pecuniary consideration paid in respect of the grant of the lease will usually come within the expression 'premium'. The foot that the sentence of fin ti, according to the provisions of sub-s.(l) of s.18, is not to be less thu,n the 'valmi of the consi<lcrntion received' is not suilicicnt tu limit the expression 'consi<loration' to uun-pecuniary consideration alone. The previous rent-control Aots, viz., the Bombay Rent Restriction Act, 1939 (Bom. Act XVI of 1939) and the Bombay Rents, Hotel Rates and lodging House Rates (Control)

Act, 1944 (Act VII of 1\144) which were repealed by the Act provided in s.10 - and 8 respectively, against the landlord's requiring the payment of any fine, premium or any other like sum in addition to the rent in consideration of the grant, renewal or continuanc.i of a tenancy of any premises. The addition of words ·deposit or any consideration' in su b-s.( 1) of s.18, must have been to cover all payments besides the standard rent in consideration of getting the tenancy. In the circumstances, it need not be a matter of surprise that certain extra. payments may come within more than one of the expressions 'fine', 'prf'mium' 'other like sum', 'deposit' or 'consideration'. In this connection, reference may be made to Explanation I to sub-s.(4) to s.18 which reads: "For the purpose of sub-section (1) . (a) except as provided in sub-section (3) (I) (1954) 56. Bom, L.R. 619.

69 receipt of rent in advance for more than three months in respect of premises Jet for the purpose of residence, or (b) where any furniture or other article is sold by the landlord to the tenant either before or after the creation of tenancy of any premises, the excess of the1price received over the reasonable price of the furniture or article, shall be deemed to be a fine or premium or consideration." The receipt of rent referred to in cl.(a) and the excess of the price received over the reasonable price of the furniture or other article referred to in cl.(b) is always to be in cash and yet the Explanation provides that the receipt of rent and the excess of the price coming within the provisions of cls.(a) and (b) respectively, shall be deemed to be a 'fine or premium or consideration•. Lastly, it was urged that the appellant just acted on behalf of the trust and not for any personal reasons.

Such a consideration does not a.fi\1ct the question of the appellant's conduct coming within the prnvisions of sub.s.(l) of s.18 ancl can affect only the sentence, which, in the present case, had been tho minimum possible under the law. The appellant was sentenced to imprisonment till the 'rising of tho Court and a fine of Rs. 3251/-. Sub-a. (1) of s.18 provides that a person, on conviction for tho offence under that section be punished with imprisonment for a term which may extend to six months and shall a]so be punished with fine which shall not be less than the amount of fine, premium ,or sum or deposit or the value of the consideration received by him. We are therefore of opinion that the appellant has been rightly convicted under s.18( I) of the Act l\nd, accordingly dismiss the appeal. Appeal dismiBsed. Vit hol Krithnaji Nivendkar Porduman Rom Singh Roghubar Doyal J.