Renewals of Expired Leave & Licence Agreements ?
SHOULD ONE SIGN THE “RENEWALS” OF EXPIRED LEAVE & LICENCE AGREEMENTS AS DEMANDED BY THE BPP?
The trustees of the Bombay Parsi Panchayat (BPP) are trying to browbeat the residents of Parsi Baugs under their control to “renew” leave and licence agreement which have expired years ago. Should the residents accede to the request and sign the agreement? No. Here’s why.
Before I come to the legal aspect, I would be worth recalling that some of the Trustees had stated in their election manifesto that they would convert the licencees to tenancies. They have forgotten their assurance on being elected to power. They only hold that the trustees have over the community is by virtue of their control over the vast housing properties of the BPP. Most of our unworthy BPP Trustee “Sahebs” have poured in good money on election campaigns, holding entertainment programmes and dinners, organizing transport, etc. etc., considering it a capital investment to reap the profits after becoming trustees – such profits being available only from the housing sector. Would any person who had honest intentions to serve the community pour in such money on elections campaign……?
Most of the present Trustees have not done anything for the community, except put it in poor light by their rowdy behaviour and fighting in public. They forget that they are there in a fiduciary capacity to serve the community by fulfilling the wishes of the founder trustees as embodied in the Trust Deed. They consider themselves trustee “sahebs” and demi gods and abuse their position by trying to brow beat the community and milk the trust. The trust deeds do not have any concept of giving accommodation on leave and licence basis; the objective is to provide accommodation to Parsis who cannot afford to buy their own accommodation. The pugree system and the huge deposits running into more than Rs.50 lakhs to crores goes against the very objective of the trust. Although the Parsi poplulation is dwindling, the housing shortage is becoming more acute, which makes it evident that something is wrong somewhere.
Now, adverting to the legal and moral aspects of “renewal” of expired leave and licence agreements. Firstly, a dead licence cannot be renewed; it would be a fresh licence on new terms and conditions. It would be unilateral and heavily loaded in favour of the BPP, jeopardizing the interests of the residents of the various baugs.
What is the present status of the resident who were originally given accommodation under leave and licence agreement? The licence period stated in the agreement has expired, but the allottee continues to reside in the flat and pay licence fees which are accepted by the BPP. Since the licensor continues to let the licencee occupy the premises after the expiry of the licence period and also accept the licence fee, what would it imply? It would mean that the intent of the licensor was to create the tenancy but by-pass the rent control legislation. The acceptance of the licence fees after the expiry of the licence period would act as an estoppel against the licensor, and hence the licensor would not be entitled to claim that the premises were given on leave and licence after the expiry of the licence period.
Supreme Court ruling on tenancy camouflaged under a Leave & Licence Agreement: It is to be noted that there is a Supreme Court judgement on the issue of camouflaging a tenancy under a Leave & Licence Agreement. (A copy of the judgement is attached hereto). In this judgement, the Supreme Court has come down heavily on licensors / landlords who attempt to scuttle the provisions of the Rent Control Legislation by camouflaging tenancies as licences. This judgement lays down that regardless of the nomenclature used, the court would see the true and real intent of the document to determine whether it is a genuine licence agreement or a camouflaged tenancy. If it is found that the Leave & Licence agreement has been executed merely to by-pass the Rent Control Act, the Court would consider it a tenancy disregarding the terminology used in the agreement.
[Judgement dated 22.03.2004 in Civil Appeal No.1548 of 1999 delivered by the Bench of Hon’ble Mr. Justice R.C. Lahoti and Hon’ble Dr. Justice AR. Lakshmanan in the case of C.M. Beena & Anr. (Appellants) versus P.N. Ramachandra Rao (Respondent) –
AIR 2004 SC 2103 = 2004 (3) ALD 108 SC = 2004 (3) SCC 595 = 2004 SCCL.COM 29]
Since the Trustees know that they are doing something that is not justified, they adopt the unethical modus operandi of “summoning” the resident to the BPP office without giving an inkling as to why he / she is being called; then take the person wait for hours together to exhaust him physically and mentally; and thereafter call in him into the committee room where he is surrounded and over-awed by the presence of all the trustees and other officials, who frighten and browbeat him to do what he is ordered to do. HENCE, ANYBODY BEING “SUMMONED” MUST SIMPLY NOT ATTEND THE BPP OFFICE.
– Jehangir Gai
598-A, Girgaon Road,
Mumbai – 400002.