Mirza, J.:— The applicant applies for revision of his conviction and sentence on a charge under Section 231 of the Bombay City 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 16 persons including the applicant were in occupation of the premises as tenants from the original owner and were using the premises as bullock and buffaloe 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 10th March 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 15 occupants of the premises as licensee, to recover from them the amounts they had agreed to pay 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 48 hours notice. The agreement further provided that the applicant was to give vacant possession of the premises to the muncipality on being given one month's notice.
3. It appear 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 2nd May 1929, the Municipal Commissioner on behalf of the municipality served a requisition on the applicant requiring him traders. 231, Bombay City Municipal Act, to drain the motor garage into the existing drain with all the necessary appliances and fittings. The requisition is dated 24th April 1929. The applicant having failed to comply with the requisition the present prosecution was launched against him. In his statement before the learned Presidency Magistrate, Second 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 in 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 Bombay City 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 bub 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. 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 transferrer by the transferee, who accepts the transfer on such terms.
The transferrer 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.”
5. It is clear from the berms 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. In order to determine whether the relation subsisting between the municipality and the applicant is that of lessor and lessee as contended by the municipality or of licenser and licensee as contended by the applicant, regard must he had to the substance of the agreement subsisting between them. The test to be followed in such cases is laid down Halsbury in the article on “Landlord and Tenant” in Vol. 18 of the Laws of England, p. 337, para. 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. In deciding whether a grant amounts to a lease, or is only a license, regard must he had to the substance of the agreement. If the effect of the instrument is to give the holder the 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 a lease: if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and control of the owner, it is a license. To give exclusive possession there need not be express wards 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.”
6. The same principle is illustrated by the case of Glenwood Lumber Co. v. Phillips (1). At. p. 408 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 reservation? or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself.”
7. In the case of Indian Hotels Co. v. Phiroz (2). Fawcett, J., in his judgment at p. 89 in comparing the definition ??? a lease under Section 105 of the Transfer of Property Act, and a license under Section 52 of the 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 S. 103, 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 case.”
8. The agreement dated 10th March 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 S. 231 and therefore liable to comply with the re ???. If he has allowed other ??? to occupy parts of the premises and covers money or any other consideration from them in respect of such ??? whether it be called rent or ??? for use and occupation, he could be a rent farmer. The agreement mentions in one of its preambles that ??? municipality has agreed to farm ??? premises to the applicant. That ??? indicates that the intention of the agreement was for the applicant to be ??? rent farmer in respect of these ??? in relation to the then occupants the premises. If the applicant is to held to be the rent farmer in respect these premises he would be deemed be the “owner” according to the ruling in Emperor v. Aziz Gaffoor (3).
9. The conviction, in our opinion, is correct. The application is dismissed and ??? rule discharged.
Broomfield, J.:— I agree and have thing to add.
J.M/R.K
10. Application dismissed.