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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Kapadia S.H., J.
Dinkar Keshav Deshmukh .... Petitioner.
Versus
Vasantdada Sugar Institute, Pune .... Respondent.
Writ Petition No. 4316 of 1993, decided on 16-8-1996.
Advocates appeared :
C.R. Dalvi with V. B. Rajure, for petitioner.
S.V. Pitre, for respondent.
Section 13-A(2)-(As amended by Maharashtra Act No. 18 of 1987), Termination of Licence prior to 1.10.1987 provision of Section 13(2) not applicable.-Applying the ratio of the Judgment of the learned Single Judge in Ravindranaths case it is clear that Maharashtra Amending Act 18 of 1987 cannot be read retrospective to cases where a licence was created prior to October I. 1987 and the said licence stood terminated prior to October 1, 1987 or in respect of which proceedings are pending in the Court. To such cases Section 13A(2) will not apply. Even giving harmonious construction to the provisions of Sections 13-A(2). 31-E, 31H, 31-l, it is clear that Maharashtra. Amending Act 18 of 1987 cannot apply to licences which stood terminated by efflux of time prior to October 1, 1987. It needs to be clarified that if the licence expired after October I. 1987 as in the case of Ravindranath H. Hiremath then Section 13-A(2) stands attracted. further in the present case, Court is not inclined to accept the contention advanced on behalf of the petitioner that in view of Section 31-H(2) the landlord can seek to recover possession by withdrawing the suit against the tenant with the leave of the Court and thereafter proceed against the tenant under Part II-A of the Act. A bare reading of Section 31-H indicates that a does not apply to proceedings under Section 13- A(2) but it applies only to provisions of Section 13-A(1). Lastly, it may he mentioned that if the contention of the petitioner is accepted it would lead to anomaly. Large number of Declaratory suits are filed in the Small Causes Court prior to October 1, 1987. Similarly, suits are also filed for possession prior to October 1. 1987 under Presidency Small Causes Court Act in which dispute between Licensor and Licensee arises. If the argument of the learned Counsel for the petitioner is accepted, it would mean that all those suits will stand abated or in those suits the Licensor will withdraw the suit with the permission and thereafter once again apply to the Competent Authority, this was never intended by the Amending Act 18 of 1987, Further it may be mentioned that even in Dalais Rent Act, the learned Author after construing various provisions referred and observed that in respect of licences which have expired prior to October 1, 19137 and prior suit or proceedings are pending then the same are not intended to be transferred to the Competent Authority.
2. The facts giving rise to the above dispute, briefly, are as follows :-
3. The Respondent herein was put in possession of the suit premises on September 1, 1979. On March 20, 1980 the purported Leave and Licence Agreement came to be executed. The Agreement indicates the date of commencement as September 1, 1979. The tenor of the agreement indicates that the agreement was for 11 months and it expired on August 31, 1980. On August 31, 1980, the Respondent did not vacate the premises. On February 7, 1992 the respondent herein instituted a declaratory suit under section 28 of the Bombay Rent Act inter alia alleging that the agreement of Leave and Licence dated March 20, 1980 was, in substance, a Tenancy Agreement. In the above suit, the Respondent claimed protection of the Bombay Rent Act. The writ of summons in the above Declaratory Suit came to be served on the Petitioner on April 6, 1992.
4. On 3rd June, 1992, as a counterblast, the Petitioner herein preferred Misc. Application No. 20 of 1992 for possession under section 13-A2 of the Bombay Rent Act inter alia alleging that Leave and Licence Agreement was entered into on March 20, 1980; that the said Agreement expired after 11 months on August 31, 1980 because the Agreement commenced from September 1, 1979; that on October 15, 1991 the Licensor terminated the Agreement and called upon the Licensee to vacate the premises in terms of the Agreement which he failed to do and in the circumstances the above Misc. Application No. 20 of 1992 came to be filed on June 3, 1992.
5. By the impugned Order the Competent Authority dismissed the said Application on the ground that Maharashtra Amending Act 18 of 1987 was not retrospective in nature and, therefore, Misc. Application No. 20 of 1992 was not maintainable. Being aggrieved by the said Order of the Competent Authority dismissing the Misc. Application No. 20 of 1992, the Licensor has filed the present Writ Petition.
6. Mr. Dalvi the learned Counsel appearing on behalf of the petitioner contended that although the Leave and Licence Agreement was executed on March 20, 1980 the cause of action arose on October 15, 1991 when the Licensee did not vacate the premises despite being called upon to do so. Mr. Dalvi contended that the Amending Act 18 of 1987 came into force from October 1, 1987. However, since the licence continued and was not terminated till October 15, 1991 the Licensor was entitled to move Misc. Application No. 20 of 1992. Mr. Dalvi contended that in view of the provisions of section 13-A2, sections 31-H and 31-I, all disputes between Licensor and Licensee were maintainable exclusively before the Competent Authority after October 1, 1987. Mr. Dalvi placed heavy reliance on the provisions of section 31-H and he contended that under sub-section (2) of section 31-H of the Bombay Rent Act, it is expressly provided that any landlord seeking to evict the tenant on the ground specified in section 13-A1, may, if he has proceeded against the tenant in a suit or in a proceeding in the Court, shall withdraw the suit or proceeding in relation to the claim made therein with the leave of the Court and, thereafter, proceed against the tenant in accordance with the provisions of Part IIA of the Bombay Rent Act. At this stage, it may be mentioned that sections 31-H and 31-I are also introduced into Part IIA which, in turn, is introduced by Maharashtra Amending Act 18 of 1987. Mr. Dalvi contended that under section 31-I, no Civil Court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under the Rent Act to decide. Mr. Dalvi accordingly contended that in the present case, the sai
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