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IN THE HIGH COURT OF BOMBAY
A.P. Shah, J.
Swami Attah @ Rapheal Alfandary.... Petitioner.
Versus
Mrs. Thrity Poonawalla.... Respondent.
Civil Revision Application No. 638 of 1995, decided on 15-1-1996.
Advocates appeared :
C.R. Dalvi with S.M. Gorwadkar, for the petitioner.
Pankaj Savant i/b M/s. Gagrat Co., for the respondent.
The Competent Authority was right in holding that the agreement is a conclusive evidence and that the transaction is of a leave and licence.
Section 92 of the Indian Evidence Act merely provides for exclusion of evidence of oral agreement while the provisions of Sections 92 and 60 of the Easement Act define licence and provide for revocation of the licence. It is really difficult to understand as to how these provisions Can be said to be in any way inconsistent of repugnant with the Explanation (b), which provides a special rule of evidence.
Section 13-A (2) Explanation (G)-Tenancy of licence-Agreement of-When document in question showing agreement of licence in writing, Court not empowered to interpret that as otherwise and held that agreement of tenancy.
Section 13-A (2), Explanation (h)-Agreement of licence and tenancy-Where agreement of licence is in writing, Court not empowered to go beyond document and interpret it as an agreement of tenancy.
The Explanation (b) to Section 13-A (2) prescribes a special rule of evidence which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. In view of the special rule of evidence, it is not permissible for the Court to go beyond the document to find out the intention of the parties and to arrive at a conclusion that the document is of lease and not of leave and licence.
"Conclusive evidence" means an absolute evidence of a fact for all purposes for which it is so made evidence. Therefore, the words appearing in Explanation (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein must in the ordinary and grammatical meaning have the effect of shutting out any other evidence on the subject which might be adduced before the Court.
Section 13-A (2), Explanation (h)-Evidence Act, Section 3-Scope of. Section 13-A (2) (1) of the Bombay Rent Act provides a procedure for eviction of a licensee before a competent authority. Then a special rule of evidence is prescribed in Section 13-A (2) (3) (b) which provides that an agreement of licence in writing shall be conclusive evidence of the fact stated therein.
There cannot be a quarrel about the legal position on the principles governing the interpretation of a document of the nature of leave and licence. These principles are fairly well-established, but the difficulty is about the application of those principles to the facts of the present case where the Court dealing with a special legislation, which contains provisions for leave and licence and prescribes a remedy in eviction of licensee, who has overstayed in the premises after the licence period is over. Section 13-A (2), which was introduced by Amending Act No. 18 of 1987, lady down the procedure for eviction of licensee before the competent authority, which is a special forom provided under Part II -A of the Act, which has been inserted by the aforesaid Amending Act. The Explanation (b) to Section 13-A (2) prescribes a special rule of evidence, which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. In view of the special rule of evidence, it is not permissible for the Court to go beyond the document to find out the intention of the parties and to arrive at a conclusion that the document is of lease and not of leave and licence.
The Evidence Ad deals with the question a to what kind of evidence is permissible to be adduced for that purpose and states in Section 3 when a fact is said to be proved.
But where a document or evidence is made conclusive it creates a presumption juris et de jure in favour of the troth and legality of the matter stated and no evidence can be adduced to contradict it. Conclusive evidence means an absolute evidence of a fact for all purposes for which it is so made evidence. Therefore, the words appearing in Explanation (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein must in the ordinary and grammatical meaning, have the effect of shutting out any other evidence on the subject which might be adduced before the Court
The competent authority was right in holding that the agreement is a conclusive evidence and that the transaction is of a leave and licence.
2. The respondent is the owner of a bungalow situated at 1-B, Dr. Koyaji Road, Pune. Under an agreement of leave and licence dated March 2, 1993, the respondent inducted the petitioner as licensee in respect of the first floor of the said bungalow for a period of two years. After the expiry of the licence period, the respondent filed a petition for eviction against the petitioner before the Competent Authority alleging that the petitioner is staying in the suit premises as a licensee and since the period of licence is expired, he is liable to be evicted.
In contesting the petition, the petitioners contention was that he is not a licensee, but he is a tenant in possession and he, therefore, is entitled to protection of the Act. The petitioner also contended that he has spent a huge amount in making renovations and repairs to the suit premises and, therefore, the respondent has no right to claim the possession.
After recording evidence and hearing both the sides, the Competent Authority has held that the transaction between the parties is one of leave and licence and since the period of licence has expired, he directed the licensee to vacate the suit premises. The Competent Authority further held that the defence that the transaction is a lessee sic lease, is not available in view of the presumption raised under Explanation (b) to section 13-A(2). The defence that the respondent has made major alterations and repairs was also rejected by the Competent Authority.
3. Mr. Dalvi, learned Counsel appearing in support of the petition, contended that the question whether a particular transaction is one of lease or licence is required to be decided by ascertaining the real intention of the parties and with reference to the circumstances of the case and the finding of the Competent Authority is erroneous. Mr. Dalvi urged that to ascertain whether a document creates a lease or licence, the substance of the document must be preferred to the form. Mr. Dalvi further urged that under the suit agreement, the petitioner got exclusive possession of the property and, therefore, prima facie, he should be considered to be a tenant. He placed strong reliance upon the decisions of the Supreme Court in A.I.R. 1959 S.C. 1262 (Associated Hotels of India Ltd. v. R.N. Kapoor)1, and (1989) 1 S.C.C 19 (Smt. Rajbir Kaur and another v. M/s. S. Chokesiri and Co.)2.
4. There cannot be a quarrel about the legal position on the principles governing the interpretation of a document of the nature of leave and licence. These principles are fairly well established, but the difficulty is about the application of those principles to the facts of the present case where we are dealing with a special legislation, which contains provisions for leave and licence and prescribes a remedy in eviction of licensee, who has overstayed in the premises after the licence period is over. Section 13-A(2), which was introduced by Amending Act No. 18 of 1987, lays down the procedure for eviction of licensee before the Competent Authority, which is a special forum provided under Part IIA of the Act, which has been inserted by the aforesaid amending Act. The Explanation (b) to section 13-A(2). prescribes a special rule of evidence, which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. In view of the special rule of evidence, it is not permissible for the Court to go beyond the document to find out the intention of the parties and to arrive at a conclusion that the document is of lease and not of leave and licence.
5. Mr. Dalvi urged that the presumption raised by Clause (b) must be restricted to names of
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