2024:BHC-AS:25283 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6481 OF 2024 Aruna Pandit & Anr. ....Petitioners V/S Ravindra Dattatraya Kumar ....Respondent _________

Mr. Nirman Sharma a/w Mr. Ansh Kranawat, Mr. Rohan Munj i/b Mr. Jayesh Mistry for the Petitioners.

Mr. Girish R. Agrawal with Mr. Shubham Jangam, Mr. Shubham Jangam, Ms. Naiana Boraste for Respondent.

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CORAM: SANDEEP V. MARNE, J.

DATE : 19 JUNE 2024.

P.C.:

1 The challenge in the present Petition is to the order dated 1 April 2024 passed by the Competent Authority rejecting the Application seeking leave to defend. Also challenged is the final eviction order passed by the Competent Authority on 1 April 2024 consequent to rejection of application for leave to defend.

2 I have heard Mr. Sharma, the learned counsel appearing for the Petitioners. He raises four principal grounds of challenge to the impugned orders. Firstly, he submits that Petitioner No.1 being real sister of the Respondent, is excluded from the definition of term ‘Licensee’ under section 7(5) of the Maharashtra Rent Control Act, 1999 (Rent Act). Secondly, he would further invite my attention to the address disclosed by the Respondent in his application, which indicates that Petitioners and Respondent are residing together in the flat in question as members of the family. Thirdly, he would submit that in the application seeking leave to defend, the Petitioners have raised specific plea of alienation of family property by the Respondent by excluding the share of the Petitioners. That in view of specific pleas of inheritance and partition raised in the application, the Competent Authority ought to have held that the issues raised by the Petitioners warrant grant of leave to defend. Lastly, Mr. Sharma would submit that Petitioners have also pleaded the case of exercise of duress, on account of which the license agreement came to be executed between the parties. He would submit that Petitioners and Respondent have been residing together in the flat for over 20 years and that there was no need for the parties to execute the leave and license agreement. That the Application filed by the Petitioners specifically raises a defence that the agreement is an outcome of duress.

3 On the above four broad points Mr. Sharma would submit that the defences raised by the Petitioners are arguable and plausible defences. He would submit that under the guise of examining the defences raised by the Petitioners, the Competent Authority has adjudicated upon merits of such defences, which is impermissible while deciding application under section 43(4)(b) of the Rent Act. Lastly, Mr. Sharma would contend that the Application has not been decided as per directions of this Court in order dated 27 September 2023 passed in Writ Petition No.12037 of 2020.

4 I have also heard Mr. Agrawal, the learned counsel appearing for the Respondent who would oppose the Petition and support the impugned orders passed by the Competent Authority.

5 Having considered the submissions canvassed by the learned counsel appearing for the parties, it is seen that execution of the Leave and License Agreement dated 15 January 2020 is not disputed by the Petitioners. Therefore, merely because Petitioner No.1 happens to be the real sister of the Respondent-Licensor, does not mean that she cannot be a licensee within the meaning of section 7(5) of the Rent Act. Though section 7(5) of the Rent Act seeks to exclude a member of the family residing together from definition of the term Licensor, such exclusion applies only in a case where there is no subsisting agreement for license between the parties. The Rent Act does not prohibit execution of license agreement between two family members residing together. Therefore, the exclusion of member of family would apply only in a case where there is absence of agreement for license between the parties. In the present case, there is specific Leave and License Agreement executed