Back
2018 Supreme(Bom) 2047
IN THE HIGH COURT OF BOMBAY
R.G. Ketkar, J.
VIMALABEN GOSALIA AND ANOTHER - Appellant
Vs.
VEENA DUSHYANT MALGONNKAR - Respondent
W.P. No. 7087 of 2008
Decided On : 06-07-2018
For The Appellant : Mr. T.D. Deshmukh, adv.
For The Respondent: Mr. Archit Jayakar a/w Abhay Dhadiwal a/w. Ms. Trupti Khadse I/b. Jayakar & Partner, Adv.
Headnote:
Constitution of India, 1950 - Article 227 - Maharashtra Rent Control Act, 1999 - Sections 24 and 55 - Registration Act, 1908 - Sections 7, 23, 24, 25, 26, 17, 49 and 55 - Leave And License Agreement - Leave and license agreement is not a registered instrument lays down that responsibility of getting agreement registered is on landlord and in absence of written registered agreement contention of tenant about terms and conditions subject to which premises have been given to him by landlord on leave and license basis or even let to him shall prevail unless proved otherwise leave and license agreement does not bear signature of petitioners - Respondent had issued receipts wherein word rent is used instead of license fee - Petitioners are tenants in respect of suit premises and not licensee has taken me through impugned orders - He submitted that competent authority had granted leave to defend - After hearing both sides by order competent authority had allowed application thereby granting leave to defend proceedings - Submitted that as leave and license agreement is not a registered instrument contention of petitioners that premises were given on tenancy basis and not on leave and license basis prevails - Held, After considering material on record I do not find that authorities below committed any error in allowing application filed by respondent - petitioners are not in a position to demonstrate that findings recorded by authorities below are perverse being based upon no evidence or that they are contrary to evidence on record - Petitioners are also not in a position to demonstrate that no reasonable person would have arrived at conclusions other than arrived by authorities below - Merely because on basis of evidence on record another view is possible that itself is no ground for invocation of powers - Hence no case is made out for invocation of powers - Hence writ petition fails and same is dismissed with no order as to costs - At this juncture orally applies for continuation of interim order in terms of prayer for a period of eight weeks from today - He states that petitioners are in possession and they have neither created third party interest nor parted with possession - They will hereafter neither create third party interest nor part with possession - He further states that petitioners and all adult family members residing with them are ready and willing to give usual undertaking within two weeks from today - Learned counsel for respondent opposes said prayer - Having regard to fact that applicants desire to challenge this order before apex court in my opinion ends of justice would be met by continuing interim order in terms of prayer for a period of eight weeks from today subject to petitioners and all adult members residing with them giving usual undertaking to this court within two weeks from today incorporating therein that they are in actual possession of suit premises and nobody else is in possession - Order accordingly.
R. G. Ketkar, J.
Heard Mr.T.D. Deshmukh, learned counsel for the petitioners and Mr.Archit Jayakar, learned counsel for the respondent, at length.
2. By this Petition under Article 227 of the Constitution of India, the petitioners have challenged the judgment and order dated 13.12.2017 passed by the Competent Authority (under Rent Act), Pune Division, Pune (for short, 'Competent Authority') in application No.27/2005 as also the judgment and order dated 12.9.2008 passed by the Additional Commissioner, Pune Division, Pune (for short, 'Commissioner') in Revision No.104/2008. By order dated 13.12.2007, the Competent Authority allowed the application filed by the 1 / 18 respondent under Section 24 of the Maharashtra Rent Control Act, 1999 (for short, 'Act') and directed the petitioner herein to hand over vacant and peaceful possession of twin bungalow / row house bearing No.37, admeasuring 2400 sq. ft. situate in Sopan Baug Cooperative Housing Society Ltd. , Pune - 411 001 (for short, 'suit premises"), as more particularly described in paragraph-1 of the application, to the respondent. The Competent Authority further directed the petitioners to pay damages @ Rs. 18,000/per month from 1.9.2005 till delivery of possession of the suit premises to the respondent. By order dated 12.9.2008, the Commissioner dismissed the Revision Application and confirmed the order of the Competent Authority. It is against these decisions, the petitioners have instituted present Petition.
3. In support of this Petition, Mr. Deshmukh advanced following contentions :
(a) Leave and licence agreement dated 1.10.2004 is not a registered instrument. Section 55 of the Act lays down that the responsibility of getting the agreement registered is on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which the premises have been given to him by the landlord on leave and licence basis or even let to him shall prevail, unless proved otherwise.
(b) The leave and licence agreement does not bear the signature of the petitioners.
(c) The respondent had issued receipts wherein the word "rent" is used instead of "licence fee".
(d) The petitioners are tenants in respect of the suit premises and not the licensee.
4. Mr. Deshmukh has taken me through the impugned orders. He submitted that the Competent Authority had granted leave to defend. After hearing both sides, by order dated 14.12.2005, the Competent Authority had allowed the application Exhibit12 thereby granting leave to defend the proceedings.
5. Mr. Deshmukh submitted that as the leave and licence agreement dated 1.10.2004 is not a registered instrument, the contention of the petitioners that the premises were given on tenancy basis and not on leave and licence basis prevails. He submitted that neither the Competent Authority nor the Commissioner has considered the effect of Section 55 of the Act.
6. On the other hand, Mr. Jayakar supported the impugned orders. He submitted that before executing the present leave and licence agreement dated 1.10.2004, initially the suit premises was given on leave and licence basis for a period of 11 months commencing from 1.3.1998 and ending on 31.10.1999. He has invited my attention to the leave and licence agreement dated 23.2.1998. Clause-2 thereof specifically recited that the suit premises will be used by the licensor for residential purposes only and for not other purposes. Subsequently the licence period was extended from time-to- time under different leave and licence agreements dated 31.1.1999, 31.12.1999, 1-12-2000, 1-11-2001, 1.10.2003 and 1.10.2004. He submitted that the petitioners failed to accompany the respondents for registration of the leave and licence agreement. The respondent herself submitted the leave and licence agreement dated 1.10.2004 before the Sub-Registrar, Haveli, Pune for the purpose of registration. He submitted that the petitioners were inducted as licensee in
