Ram Shankar Sinha v. Ritesh V. Patel

(ii) Chapter VIII of the Maharashtra Rent Act provides for

Vaibhav Page No. 5 provisions for summary disposal of certain Applications. Section 39 of the Maharashtra Rent Act provides that provisions of this Chapter to have an overriding effect and the same reads as under:-

(iii) Section 40 of the Maharashtra Rent Act is regarding appointment of Competent Authority.

(iv) Section 41 of the Maharashtra Rent Act is concerning definition of “landlord” for the purpose of Chapter VIII of the same i.e. in the case where summary disposal of certain Applications is contemplated. Said section 41 reads as under: “S.41. Definition of landlord for the purpose of Chapter VIII For the purposes of this Chapter, landlord means a landlord who is,— (a) a person who has created a service tenancy in respect of his premises or a part thereof in favour of his employee under section 22; (b) a member of the armed forces of the Union or a scientist or a Government servant or a successor-ininterest, referred to in section 23; or

(c) a person who has given premises on licence for residence or a successor-in-interest referred to in section 24.”

(v) Section 42 of the Maharashtra Rent Act is concerning

Vaibhav Page No. 6 special provisions for making Application to competent authority by landlord to evict the tenant or licencee and the same reads as under:- “42. Special provisions for making application to Competent Authority by landlord to evict tenant or licensee- Notwithstanding anything contained in this Act or any other Law for the time being in force or any contract to the contrary or any judgement or decree or order of any court, but subject to the provisions of section 22 or 23 or 24, as the case may be, a landlord may submit an application to the Competent Authority, signed and verified in a manner provided in rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908, as if it were a plaint, to the Competent Authority having jurisdiction in the area in which the premises are situated, for the purpose of recovery of possession of the premises from the tenant or licensee, as the case may be.”

(vi) Section 43 of the Maharashtra Rent Act prescribes special procedure for disposal of Applications filed by the landlord under the said Chapter VIII of the same. Section 43 reads as under:-

(vii) Section 44 of the Maharashtra Rent Act provides that order of Competent Authority be non-appealable and provides revision to the Additional Commissioner. Said Section 44 reads as under:- “44. Order of Competent Authority to be nonappealable and revision by State Government- Vaibhav Page No. 9 (1) No appeal shall lie against an order for the recovery of possession of any premises made by the Competent Authority in accordance with the procedure specified in section 43. (2) The State Government or such officer, not below the rank of an Additional Commissioner of a Revenue Division, as the State Government may, by general or special order, authorise in this behalf, may, at any time suo motu or on the application of any person aggrieved, for the purposes of satisfying itself that an order made in any case by the Competent Authority under section 43 is according to law, call for the record of that case and pass such order in respect thereto as it or he thinks fit: Provided that, no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter: Provided further that, no powers of revision at the instance of person aggrieved shall be exercised, unless an application is presented within ninety days of the date of the order sought to be revised.”

(viii) Section 47 of the Maharashtra Rent Act gives exclusive jurisdiction to the Competent Authority. Said Section 47 reads as under:-

(ix) Section 49 of the Maharashtra Rent Act provides that

Competent Authority appointed under said Chapter VIII to be deemed to be public servant. Section 50 of the Maharashtra Rent Act provides that all proceedings before the Competent Authority be judicial proceedings. Section 51 of the Maharashtra Rent Act provides that however, the Competent Authority shall be deemed to be civil court for the purposes of Section 345 and 346 of the Code of Criminal Procedure, 1973. Section 52 of the Maharashtra Rent Act provides that no suit, proceeding or other legal proceedings shall lie against the Competent Authority in respect of anything done in good faith or intended to be done under the said Act.

(x) Section 55 of the Maharashtra Rent Act is also relevant as inter alia, it provides that any Agreement for Leave and Licence after commencement of the Maharashtra Rent Act, shall be in writing and shall be registered under the Registration Act, 1908. It further provides that the responsibility of getting such an Agreement registered shall be with the landlord and in the absence of the written registered Agreement, the contention of Vaibhav Page No. 11 the tenant about the terms and conditions subject to which a premises has been given to him by the landlord on Leave and Licence or have been let to him, shall prevail, unless proved otherwise. Section 55 reads as under:-

55. Tenancy agreement to be compulsorily registered - (1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908. (2) The responsibility of getting such agreement registered shall be 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 a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise. (3) Any landlord who contravenes the provisions of this section shall, on conviction, be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or with both.”

9. In several decisions of this Court, the scheme under Section 13A(2) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 ("Bombay Rent Act") which is similar to Section 24 read with Chapter VIII of the Maharashtra Rent Act is considered. Vaibhav Page No. 12

(i) In case of Jasmeet Hoon v. Rita Johar 4 the said special procedure for eviction of Licencee before the Competent Authority prescribing a special rule of evidence is discussed in paragraph No.11. The paragraph No.11 reads as follows:-

(ii) In the case of Rajendra B. Nair v. Suresh D.

this Court discussed special scheme under old section 13A(2) and the said special rule of evidence. The relevant discussion is given in paragraphs 8 to 11 which read as under:-

11. The agreement is one by which a licence pure and simple was created in favour of the respondent. Explanation (b) to section 13-A[2] must be given effect and its consequence is that the parties are shut out from leading evidence for the purpose of demonstrating that the agreement was not a leave and licence agreement. The provisions of the agreement which have been adverted to above clearly establish that the agreement was in fact and in law what it purported to be namely, an agreement by which a licence to occupy the premises was given to the respondent for a temporary period of three months. This needs emphasis, because quite apart Vaibhav Page No. 21 from the provisions of Explanation (b) which would have the effect of shutting out oral evidence to the contrary, the plain terms of the agreement show that it was one of leave and licence.”

(iii) In Mukesh Dharsibhai Thakkar v. Rajnikant Ramanlal the learned Single Judge has discussed the scheme of proceedings under Section 24 of the Maharashtra Rent Act in paragraphs 5 to 8. The said paragraphs 5 to 8 read as under:-

15. The contention of the learned Advocate for the Petitioner that the absence of registered written agreement would render of license to be invalid and therefore, it would result in the absence of jurisdictional fact to enable the Competent Authority to entertain the application under section 24 of the said Act, cannot be accepted. The jurisdictional fact which is required for the Competent Authority to entertain the application for Vaibhav Page No. 27 eviction under section 24 of the said Act is the expiry of license for residence in favour of the person occupying the premises and moment the same is disclosed based on whatever material placed before the Competent Authority, it will empower the Competent Authority to take cognizance of such application and to proceed to deal with the matter. Absence of registration or even the agreement being not in writing, that would not render the license to be invalid.......” 19B. The contention of the learned counsel appearing for the Petitioner is that if an agreement of leave and licence is not registered, in view of sub-section 2 of section 55 of the said Act, if the a licensee while opposing an application under section 24 contends that in fact what was created was a tenancy and not a licence, the said contention will prevail unless it is proved otherwise by the applicant- licensee. However, sub-section 2 cannot be read in isolation and it will have to be read with subsection 1. The sub-section 1 makes registration of an agreement of tenancy as well as an agreement of leave and licence compulsory. That is how in sub-section 2 there is a reference to premises being given on leave and licence or the premises being let out to the tenant. Subsection 2 cannot be so interpreted that it will nullify clause (b) of explanation to section 24. Both the provisions will have to be harmoniously construed. It must noted here that a special remedy for eviction of licensees under section 24 of the said Act is available only to premises given on licence for residential use. Section 55 is applicable not only to licence which is covered by section 24 but also to the licence granted in respect of premises for a use other than residential. The effect of sub-section 2 of section 55 is that in case of licence granted for non-residential use, if the agreement is not registered, it will be open for the opponent licensee to contend that the terms and conditions of the licence agreed between the parties were different from Vaibhav Page No. 28 the terms and conditions incorporated under the agreement of leave and licence. When an application for eviction of a licensee in respect of license granted for residential use is made under section 24 of the said Act, to the leave and licence agreement subject matter of such application, explanation (b) will apply and the agreement will to be treated as conclusive evidence of the facts stated therein.

20. There is one more important aspect of the matter. An agreement of leave and licence does not require registration under the Registration Act, 1908 (hereinafter referred to as the said Act of 1908). Section 49 of the said Act of 1908 provides that no document which requires registration either under section 17 or under the Transfer of Property Act, 1882 can be received as evidence of any transaction affecting such property unless it has been registered. Thus section 49 of the said Act is applicable only to the documents which require registration either under section 17 of the said Act of 1908 or under the Transfer of Property Act, 1882. Under the said Act, while providing for consequences of nonregistration, the legislature has not chosen to provide for drastic consequences as provided under section 49 of the said Act of 1908. Therefore, non-registration of a document required to be registered under section 55 of the said Act attracts limited consequences provided under sub-section 2 thereof apart from prosecution under sub-section 3. An unregistered document which requires registration under section 55 of the said Act can be read in evidence provided the same is proved and the same is otherwise admissible in evidence. Section 49 of the said Act of 1908 will not be applicable to such document which is required to be registered under section 55 of the said Act. Therefore, a document which requires registration under section 55 of the said Act does not become an invalid document. The presumption under clause (b) of explanation to section 24 of the said Vaibhav Page No. 29 Act is applicable only when an application for eviction is filed relating to the premises given on licence for residence. In other proceedings, the said presumption may not apply. Therefore, notwithstanding the nonregistration of an agreement in writing of leave and licence in respect of the premises given for residential use, when an application under section 24 is made, the clause (b) will apply to such agreement and it will not be open for the licensee to lead any evidence contrary to the terms and conditions provided in the said agreement.”

10. Thus, the Scheme of Maharashtra Rent Act regarding Special provisions for recovery of possession in case of landlord entitled to recover possession of premises given on leave and licence for residence on expiry of the period of licence as provided under Section 24 of the Maharashtra Rent Act read with provisions of Chapter VIII concerning summary disposal of certain Applications is as follows:-

(i) Explanation (b) to section 13-A(2) of the Bombay Rent Act i.e.

Explanation (b) to Section 24 of the Maharashtra Rent Act prescribes a special rule of evidence. It provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. In view of this special rule of evidence, this Court has held that it is not permissible for the Court to go behind the document to find out the real intention of the parties. The agreement is conclusive evidence that the transaction is of leave and licence. In other words, it has been held that the words "conclusive evidence" of the facts stated in the Leave and Licence Agreement have the effect of shutting out any other evidence on the subject which might be adduced before the Court. 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. In Vaibhav Page No. 30 view of this special rule of evidence prescribed under the Act Court cannot go beyond the document to find out the intention of the parties, the circumstances of the case, the nature of possession etc.

(ii) Once it is provided by the legislature that an agreement of licence in writing shall be conclusive evidence of the facts stated therein, it prohibits from leading any other evidence which may affect the conclusiveness of that evidence. Supreme Court in Smt. Somawanti case (supra) held that once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. Not only that when a certain evidence is made conclusive evidence, it prohibits any other evidence to be led which may detract from the conclusiveness of that evidence, but also the Court has no option to hold the existence of the fact, when such evidence is made conclusive.

(iii) Once an execution of the agreement of leave and licence is not disputed before the Competent Authority in an application under section 13-A(2) of the Bombay Rent Act/ Section 24 of the Maharashtra Rent Act based on such leave and licence agreement, it is conclusive evidence of the facts stated therein and no other evidence can be led inconsistent with the said facts by either of the parties and is conclusive between the parties of the facts stated therein. The Competent Authority has no option but to hold that the facts stated therein do exist.

(iv) Harmonious reading of section 55(1) and (2) along with the said

Clause (b) in the Explanation to section 24 of the said Act would reveal that though it is mandatory for the landlord to get the agreement of leave and license recorded in writing and registered under the Vaibhav Page No. 31 Registration Act, 1908, failure in that regard would warrant consequences as stipulated under section 55 of the said Act, however, once the matter reaches the stage of evidence, and if there is an agreement in writing, though not registered, even then the facts stated in such agreement could be deemed to be conclusively established on the basis of such written agreement itself and there would be no other evidence admissible in that regard. In other words, though, in terms of subsection (2) of section 55 of the said Act, there will be presumptive value to the contentions of the licensee in respect of the terms and conditions of the agreement is in writing and even though it is not registered, the same, as regards the facts stated therein would be deemed to have been proved conclusively on production of the agreement itself, and in which case, any presumption arising in relation to the terms and conditions of the license contrary to the facts stated in such agreement would stand rebutted.

11. Thus, it is clear that as per the settled legal position, the intention of the legislature was to give finality to the existence of the facts occurring in the written Agreement of leave and licence. The legislature intended to shut out any other evidence which will detract from the conclusive evidence of that case. The object of expression “conclusive evidence of facts stated therein" is aimed to give finality to the establishment of the existence of the fact or facts stated in the Leave and Licence Agreement. It is settled legal position that once it is provided by the legislature that an Agreement of Licence in writing shall be conclusive evidence of the facts stated therein, it prohibits any other evidence, which may affect the conclusiveness of the evidence. It is a Vaibhav Page No. 32 settled legal position that when certain evidence is conclusive, it prohibits any other evidence to be led which may detract from the conclusiveness of that evidence. It is a settled legal position that nonregistration of a document required to be registered under Section 55 of the Maharashtra Rent Act attracts limited consequences provided under Sub Section 2 thereof apart from prosecution under Sub Section 3. An unregistered document which requires registration under Section 55 of the Maharashtra Rent Act can be read in evidence provided the same is proved and the same is otherwise admissible in evidence. Section 49 of the Registration Act, 1908 will not be applicable to such document which is required to be registered under Section 55 of the Maharashtra Rent Act. Therefore, a document which requires registration under Section 55 of the Maharashtra Rent Act does not become an invalid document. The presumption under clause (b) of explanation to Section 24 of the Maharashtra Rent Act is applicable only when an Application for eviction is filed relating to the premises given on licence for residence. In other proceedings, the said presumption may not apply. Therefore, notwithstanding the non-registration of an Agreement in writing of leave and licence in respect of the premises given for residential use, when an Application under Section 24 of the Maharashtra Rent Act is made, the said clause (b) will apply to such an Agreement and it will not be open for the licencee to lead any evidence Vaibhav Page No. 33 contrary to the terms and conditions provided in the said Agreement. Point No. ii: Whether the Competent Authority while deciding the Application for leave to defend filed under Section 43(4) of the Maharashtra Rent Control Act, 1999 can decide the same dehors the rigours of explanation 'b' to Section 24 of the Maharashtra Rent Control Act, 1999?

12. In view of the above settled legal position, it is to be considered whether the Competent Authority, while deciding the Application for leave to defend can decide the same completely ignoring the requirement of explanation (b) to Section 24 of the Maharashtra Rent Act. Explanation (b) to Section 24 of the Maharashtra Rent Act clearly provides that an Agreement of Licence in writing shall be conclusive evidence of the facts stated therein. As held by this Court in Mukesh Dharsibhai Thakkar (supra) in respect of the premises given for residential use, when an Application under Section 24 is made, said clause (b) will apply to such a case and it will not be open for the licencee to lead any evidence contrary to the terms and conditions provided in the said Agreement.

13. Section 43 of the Maharashtra Rent Act prescribes special procedure for disposal of Applications filed by the landlord under Chapter VIII of the Maharashtra Rent Act. Under Chapter VIII Section 41 defines “landlord”. Three categories of landlords are contemplated under said Section 41 viz:- Vaibhav Page No. 34

(i) A person who has created a service tenancy;

(ii) A member of the armed forces of the Union or a scientist or a Government servant or a successor-in-interest;

(iii) A person who has given the premises on licence for residence or successor-in-interest defined in Section 22; Thus, it is clear that the provision that Agreement of Licence in writing shall be conclusive evidence of the facts stated therein will only apply to the landlord who has filed proceeding under Chapter VIII for recovery of premises given on leave and licence and the same will not apply to the other categories of landlords. Section 43(4)(b) of the Maharashtra Rent Act contemplates that the Competent Authority shall give to the tenant or licencee, leave to contest the Application if the affidavit filed by the tenant or licencee discloses such facts, as it would dis-entitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in Section 22 or Section 23 or Section 24 of the Maharashtra Rent Act. As set out herein above, Section 22 is regarding recovery of possession in case of tenancy created during service period. Section 23 is when members of armed forces of the Union, scientists or their successor-in-interest entitled to recover possession of premises required for their occupation and Section 24 is regarding landlord entitled to recover possession of any premises given on licence on expiry. Thus, the “landlord” contemplated under Section 41 of Chapter VIII are three different and Vaibhav Page No. 35 distinct types of landlords. Said rule of evidence as contained in explanation (b) to Sub Section 3 of Section 24 of the Maharashtra Rent Act will only apply when the residential premises are given on leave and licence basis to the licencee. Thus, it is clear that the criterias which are applicable while considering leave application filed by the tenants who were covered by Sections 22 and 23 is totally different than the Application filed under Section 24 where the special rule of evidence is specified. Sub-Section 4(a) of Section 43 of the Maharashtra Rent Act inter alia provides that licensee on whom the summons is duly served in the ordinary way or by registered post in the manner laid down in sub-section (3) shall not contest the prayer for eviction from the premises, unless within thirty days of the service of summons on him as aforesaid, he files an affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority. Sub-Section 4(b) of Section provides that the Competent Authority shall give to the tenant or licensee, leave to contest the application if the affidavit filed by the tenant or licensee discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises, on the ground specified in section 22 or 23 or 24. Thus, it is clear that while considering leave Application in the proceeding filed by the licensor against the licencee as contemplated under Section 24, special rule of Vaibhav Page No. 36 evidence as contemplated under explanation (b) to Sub Section 3 of Section 24 of the Maharashtra Rent Act is required to be considered and will apply. The licensor can only raise the contentions, even for obtaining leave, which are permitted by said special rule of evidence i.e. explanation (b) to Sub Section 3 of Section 24 of the Maharashtra Rent Act which provides that an Agreement of Licence in writing shall be conclusive evidence of the fact stated therein. However, it is clarified that the same will not apply to the case where it is the claim of the licencee that the Agreement in question has been brought into existence as a fraud. In that case, however, it is required to be prima facie, decided by the Competent Authority that the said defence is not moonshine defence. Point No. iii: Whether in the facts and circumstances of this case it is necessary to grant leave to defend under Section 43(4) of the Maharashtra Rent Control Act, 1999 to the Respondent?

14. In the light of above legal position it is necessary to see various clauses of the leave and license agreement dated 16th June 2018 (Page Nos.57 to 62). The clause Nos.1, 2, 3 and 6 are very relevant and the same reads as under:- “1. The LICENSOR agrees to grants the LICENSEE and the LICENSEE agreed to take under leave and license the premise for residential purpose for a period of 24 month with effect from 16th Jun 2018 to 15th Vaibhav Page No. 37

2. The LICENSEE shall can use the said flat for only residential purpose.

3. This Agreement comes into Force from 16th day of Jun 2018 to 15th

6. The LICENSEE shall handover the vacant possession to the LICENSOR after completion of 24 months.” Thus, it is clear that the period of leave and license agreement is from 16th June 2018 to 15th June 2020. It is further agreed between the parties that licensee shall hand over possession to the licensor after completion of 24 months i.e. 15th June 2020. As per Explanation (b) to Section 24 of the MRC Act, terms and conditions in the written leave and license agreement are conclusive of the facts stated therein. Thus, the Competent Authority cannot take into consideration the evidence which is contrary to the written terms of the leave and license agreement.

15. It is also required to be noted that the present Respondent has filed Special Civil Suit No.31 of 2024 seeking specific performance of the oral agreement. The Application bearing Exhibit-5 filed in said Suit has been rejected by the learned Civil Judge, Senior Division, Belapur by order dated 4th November 2024 passed below Exhibit-5 in Special Civil Suit No.31 of 2024. In view of the said suit pending in the Civil Court the following observations in Sanath Kumar Sanjib Das (supra) are very relevant and squarely applicable to the present case. Vaibhav Page No. 38 “11. However, while conducting limited enquiry under the MRC Act it is neither for the Competent Authority nor for this Court to interpret the terms and conditions of the MoU or to consider conduct of any party qua those terms and conditions. This has to be left to the jurisdiction of the competent Civil Court. If Plaintiff/Petitioner wants Respondent Nos.[1] and 2 to specifically perform the Mou, he can file suit seeking specific performance thereof. Mere reference to the license agreement in the MoU would not clothe the Competent Authority with jurisdiction to deal with terms and conditions of the MoU. The license granted in favour of the Petitioner stands on a different footing than the agreement for purchase of licensed premises. The remedies exercisable in respect of two independent rights are also altogether distinct. I am therefore of the view that parties can agitate their grievances in respect of the alleged non-fulfillment of obligations under MoU before appropriate civil court.”

16. Thus, the alleged claim of the oral agreement can not be looked into by the Competent Authority. Thus, the order passed by the Additional Divisional Commissioner remanding back the Eviction Application to the Competent Authority for trial and directing that order be passed after leading evidence by both the parties, consequently granting leave to defend is not proper and legal.

17. One of the point raised by the Respondent before the Competent Authority and Additional Commissioner is that the Eviction Application filed is barred by limitation. It is the contention of learned Counsel appearing for the Petitioner that law of limitation is not applicable to the Application for eviction filed before the Competent Authority under Vaibhav Page No. 39 Section 42 of the Maharashtra Rent Act. To support the said contention learned Counsel for the Petitioner has relied on the decision of this Court in the case of Sudha Rajendra Mahajan v. Vikas Narayan Patil[7] However, the said point is not raised by the learned Counsel appearing for the Respondents in this Writ Petition. In any case, it is required to be noted that the last leave and license agreement was executed on 16th June 2018, same expired by efflux of time on 15th June 2020 and the Eviction Application is filed on 9th November 2023. The Supreme Court due to Covid pandemic has suspended the limitation period from 15th March 2020 to 28th February 2022. Thus, even if it is assumed that the Limitation Act, 1963 applies to the said proceedings then also there is no substance in the said contention.

18. Accordingly, the Writ Petition is allowed by passing following orders:- ORDER

(i) Order dated 14th February 2025 passed by the

Additional Divisional Commissioner, Konkan Division, Mumbai in Revision Application No.747 of 2024 is quashed and set aside and said Revision Application is dismissed.

(ii) Consequently order dated 9th August 2024 of

Competent Authority, Rent Control Act Court, Konkan Division in Eviction Application No.247 of 2024 stands 7 2024 SCC OnLine 2111 Vaibhav Page No. 40 restored.

19. Accordingly, the Writ Petition is allowed in above terms with no order as to costs. [MADHAV J. JAMDAR, J.] Vaibhav Page No. 41