Alpana Sanjay Kolhatkar & Ors. v. Vijay Kumar Amrut Gone & Ors.

[2023 LiveLaw (SC) 448]" In all the above matters, the High Court has reserved the Judgment or pronounced only operative order. However, it is to be noted that this is not a case where the Judgment is Reserved. The same was dictated in open Court on 26th July 2023, 27th July 2023, 31st July 2023 and on 7th August 2023. In fact, I was suffering from a severe cough on 31st July 2023 and therefore after partly dictating the Order in open Court, further part was dictated in Chamber on 31st July 2023 in the presence of the learned Advocates of both parties. On 31st July 2023, Ms. Chavan and Ms. Samudre, the respective learned Advocates were present in the Chamber. In fact, as due to severe cough, I was experiencing difficulties in dictating the Order, both the learned Advocates requested to stop the dictation. As I was not feeling well on 31st July 2023, I took leave for the second session and thereafter from 1st August 2023 till 3rd August 2023, I could not attend the Court 4 of 82 and was not available for judicial work due to my illness. Thereafter the remaining Order was dictated on 7th August 2023 and the dictation was completed on that date. In fact, Dr. Gupta, learned Counsel appearing for the Petitioner prayed for a stay of this order and the same was granted. As far as my current assignment is concerned, the same inter alia includes: Maharashtra Cooperative Societies Act, 1960, Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Maharashtra Land Revenue Code, 1966, Maharashtra Tenancy & Agricultural Lands Act, 1948, Maharashtra Village Panchayats Act, Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971, Maharashtra Housing and Area Development Act, 1976 (MHADA), Maintenance and Welfare of Parents and Senior Citizens Act, 2007,, Maharashtra Public Trusts Act, 1950, Mamlatdars' Courts Act, 1906 etc.. As the cases placed before me inter alia are concerning disqualification of Sarpanch and Upa-Sarpanch, orders of eviction passed under Slum Act/ passed under Public Premises Eviction Act, matters concerning termination / reinstatement of teachers, orders concerning Senior Citizens etc. all these matters are 5 of 82 required to be heard urgently. Therefore, I am sitting in Court for a considerable time after Court working hours i.e. upto 2-3 hours after Court working hours on almost every day and thereafter in Chamber for few hours. The decisions on which Dr. Gupta, learned Counsel has relied are mostly arising out of criminal Appeals and in cases where either Judgment is reserved or only operative part without reasons are pronounced. In this case, entire judgment is dictated in open Court. The Hon'ble Supreme Court in the case between SJVNL Vs.

CCC-HIM JV, reported in (2021) 14 SCC 55 has held as follows: "2 A reading of our judgment in Anil Rai v. State of Bihar and, para 9 in particular, makes it clear that Order 20 CPC does not apply to the High Court. In fact, para 10 then goes on to lay down a series of guidelines which ought to be imposed for the High Court in which, inter alia, it is mentioned that only after six months' hiatus between reserving a judgment and delivering it, either party can move an application to the Chief Justice of the High Court, who may then decide that the matter be heard afresh. No such application has been presented in the present case. As a matter of fact, an MA was presented by one of the parties after judgment was reserved to modify the status quo order, and an MA was moved by the other party so as to pass no orders as judgment is reserved."

6. Before consideration of rival contentions and the merits of the case, it is necessary to set out certain factual aspects. 6 of 82 (a) Sanjay Govind Kolhatkar (Deceased) purchased the suit premises i.e. Penthouse No.504, 5th Floor, Dilbahar Co-operative Housing Society, situate at Plot No.47, Sector No.29, Vashi, Navi Mumbai - 400 703 ("said flat") from one M/s. Shri Siddhivinayak Enterprises under the registered Agreement for Sale dated 15th December 1995. Said deceased Sanjay Kolhatkar also availed a loan from L.I.C. Housing Finance Limited ("LIC") for purchase of the said flat. Sanjay Kolhatkar passed away on 28th February

2011. The Petitioner No.1 - Mrs. Alpana Sanjay Kolhatkar is the widow of Sanjay Kolhatkar, Petitioner Nos. 2 and 3 are his sons and Petitioner No. 4 is the mother of deceased Sanjay Kolhatkar. (b) Leave and Licence Agreement dated 17th November 2001 (pages 66 to 71 of the Writ Petition) was executed by Petitioner No.1 in favour of Respondent No.2 - Mrs. Ashwini Vijay Gone. Said Leave and Licence Agreement is admittedly not registered. The period of leave and licence as agreed under the said Agreement is from 17th November 2001 to 16th October 2002. The agreed licence fee was Rs.15,000/- per month and security deposit was Rs.1,50,000/-.

(c) It is the contention of the Respondents that some entries were made in a diary by Sanjay Kolhatkar on 2nd April 2003. The said diary entries are as follows: 7 of 82 8 of 82 It is the submission of Dr. Gupta, learned Counsel appearing for the Respondents that as per the said diary entry dated 2nd April 2003 Sanjay Kolhatkar agreed to sell the said flat to the Respondents for a total amount of Rs.30,00,000/-. On that day, an amount of Rs.7,00,000/- was paid in cash by the Respondents to Sanjay Kolhatkar. Loan amount of LIC to the tune of Rs.10,00,000/- was agreed to be transferred in favour of Respondent No.1 and it was further agreed that the remaining amount of Rs.13,00,000/- would be paid to Sanjay Kolhatkar. It is a further contention of the Respondents that on 20th April 2005, another diary entry is made. As per the said diary entry, it is recorded that an additional amount of Rs.1,36,000/- has been paid to LIC and therefore the total amount paid as on 20th April 2005 is Rs.7,00,000/- + Rs.1,36,000/- i.e. Rs.8,36,000/-. The said diary entry is dated 20th April 2005. However, it is accepted by Dr. Gupta, learned Counsel appearing for the Respondent that said diary entry dated 20th April 2005 is not signed by Sanjay Kolhatkar. At this stage only it is to be noted that the Petitioners have denied that the said diary entry dated 2nd April 2003 is signed by said Sanjay Kolhatkar and also that the same is in his handwriting. It is also accepted by Dr. Gupta, learned Counsel for 9 of 82 the Respondents that no Suit for specific performance was filed seeking specific performance of said Agreement dated 2nd April 2002 till date. It is also an admitted position that alleged Agreement is merely a diary entry and the same is not a registered Agreement as compulsorily required under the provisions of law.

(d) It is also an admitted position that another Leave and

Licence Agreement was executed on 25th January 2008 (pages 78-88 of the Writ Petition). The said Leave and Licence Agreement dated 25th January 2008 is a registered document. The said Agreement was executed by Sanjay Kolhatkar as the Licensor and Vijay Amrut Gone - Respondent No.1 as the Licencee. As per the terms and conditions of said Leave and Licence Agreement, the period of leave and licence was from 1st January 2008 to 30th November 2008 and the agreed licence fee was Rs.20,000/- per month. The important terms of said Agreement are reproduced herein below for ready reference: (A) The Licensor hereby grants unto the licensee his permission and license to use from 1st January 2008 for the period of Eleven Months upto 30 November 2008, the said premises together with all fixtures, fittings, in the said premises. (B) Thus in consideration thereof, the licensee shall pay to the licensor monthly compensation an amount of Rs.20,000/- (Rupees Twenty Thousand Only), which indeed will be deposited by the Licensor with 10 of 82 LIC Housing Finance towards the installment of loan availed by the Licensor from the Housing Finance Institution.

(C) To quit remove himself his family, servants and their belonging from the said premises at the end of 11 months or upon the earlier termination of the permission and while doing so, to leave behind the fixtures, fittings, therein in proper conditions, usual wear and tear expected, from the said premises at the end of the period of license.

(D) Not to claim any rights or interest of any kind or nature whatsoever in the premises or any part thereof save and except to use the same as a mere Licensee. (E) To pay monthly compensation per month, for the use and occupation of the said premises, to the Licensor on or before the 10th of each English calendar month. (F) It is hereby expressly agreed and declared that neither this Agreement nor anything contained herein shall be deemed to create/ claim any interest or estate as a tenant or otherwise in the above mentioned premises, it being the express intention of the parties that the relationship between the Licensor and the Licensee shall never be of landlord and tenant. For the sake of expressly clarifying the real intention between the Parties hereto it is hereby agreed, understood and declared that:a) This Agreement shall not, at any time result in the transfer or create in favour of the Licensee any right, title, interest or estate of any nature whatsoever in the said premises or in or upon the premises. 11 of 82 b) Licensors shall at all times during the subsistence of this Agreement be deemed to be in exclusive and juridical possession of the said premises and the whole of the said premises shall always continue to be in sole and absolute unconditional and entire control of the Licensor. (G) Notwithstanding anything contained in this agreement, both the Licensor and Licensee shall at any time, during the period of this agreement or on its expiry, are entitled to renew the period of 11 months, in the said premises by executing a fresh Leave and Licensee Agreement by giving to the other party one month notice in writing and with prior permission of the LICENSOR, and if no such intimation is exchanged by both the parties then Agreement will come to an end on the expiry of the original period of 11 months. (H) On the expiration or termination or revocation of this agreement as herein provided, the Licensee undertakes to remove itself and its servants and their belongings articles, goods and things from the said premises immediately and handover vacant and peaceful possession of the said premises to the Licensor in the same conditions as the Licensee received it.

(I) The Licensor and Licensee hereto acknowledge that this agreement supersedes all prior communication between them including all oral or written proposals, but for the conditions precedent to this agreement as enclosed herewith. The transaction envisaged under this agreement will be within the purview of Section 24 (1), (2), (3), of Maharashtra Rent Control Act, 1999 and the Licensee has given undertaking and assurance that he 12 of 82 will not claim any right in the said premises. The Licensors shall be entitled to approach the Competent Authority for getting possession of the said flat, after the expiry for this Agreement as per the provisions contained herein, in case the Licensee failing or refusing to vacate and handover the possession of the said flat." Thus, as per the above terms of the registered Leave and Licence Agreement, the agreed period of leave and licence was of 11 months i.e. from 1st January 2008 to 30th November 2008, the agreed compensation was Rs.20,000/per month which is to be deposited with LIC from whom Sanjay Kolhatkar had availed a housing loan, no right is created in favour of the Respondent except licencee to occupy the said flat for licence period, the said Agreement supersedes all previous Agreements and it is specifically recorded that the said Leave and Licence Agreement comes within the purview of Section 24 of the Maharashtra Rent Control Act, 1999 ("Maharashtra Rent Act"). (e) On 9th May 2008, a notice was issued through Advocate by Sanjay Kolhatkar terminating the said Leave and Licence Agreement on the ground that he was in dire need of the said flat (pages 89-90 of the Writ Petition). No reply was given by Respondent No.1 to the said notice. However, it is to be noted that it is the contention of Dr. Gupta, learned Counsel appearing for the Respondents that the said notice dated 9th May 2008 is a fabricated document and the same was not received by the Respondent No.1 and a private criminal complaint has been filed and the said proceeding is pending. 13 of 82 (f) It is pertinent to note that thereafter said Respondent No.1 sent a letter dated 31st July 2010 to the Manager, LIC forwarding a cheque of Rs.3,26,640/- towards full and final settlement of the dues of LIC of the loan account of Sanjay Kolhatkar (page 154 of the Writ Petition). It is further stated in the said letter that since last 10 years i.e. since January 2001, he is paying equated monthly installments and it was further informed to the Manager, LIC that the said flat has been purchased from Sanjay Kolhatkar and the agreed amount has been paid to him. It has been further mentioned in the said letter that he would visit office of LIC for collecting original papers of the mortgaged flat along with Sanjay Kolhatkar. (g) By further letter dated 13th August 2010 (page 156 of the Writ petition) sent by Respondent No.1 - Vijay Gone, it was informed to the Branch Manager of LIC to issue the receipt in his favour for payment made to the Bank and to issue a 'No Dues Certificate' and closed the said loan account permanently. Further it was informed to the LIC that he would come to collect the original papers concerning the said mortgaged flat along with the borrower i.e. Sanjay Kolhatkar. (h) It is important to note that both these letters dated 31st July 2010 and 13th August 2010 are sent by Respondent No.1 to Branch Manager, L.I.C. after Sanjay Kolhatkar terminated the Leave and Licence Agreement by termination notice dated 9th May 2008.

(i) On 28th February 2011, Sanjay Kolhatkar has passed away.

14 of 82 (j) On 19th May 2011 (pages 91-92 of the Writ petition), the Respondent No.1 issued a notice through Advocate to the Petitioner No.1. In the said notice, it has been mentioned that when the Petitioner No.1 had approached the Respondent No.1, the Respondent No.1 has informed her that way back in the year 2003, late Sanjay Kolhatkar had entered into an implied agreement for the purchase of the said flat for a consideration of Rs.30,00,000/-. It has been mentioned in the notice that the total payment made to late Sanjay Kolhatkar is to the tune of Rs.48,00,000/- and the said amount has been paid by cash, by cheques and also by repayment of loan to LIC and the said amount far exceeds the agreed purchase consideration of Rs.30,00,000/-. In the said notice dated 9th May 2011, it has been further mentioned that as the Petitioners are the legal representatives of said Sanjay Kolhatkar, it is binding on them to comply with the commitment made by late Sanjay Kolhatkar during his lifetime. (k) The Petitioners through their Advocate, sent a reply dated 25th May 2011 (pages 93-96 of the Writ Petition). In the said reply, it is contended on behalf of the Petitioner No.1 that the licence period was 1st January 2008 to 30th November 2008 and therefore the Respondents are occupying the said flat illegally and unlawfully. It is further stated that thus monthly leave and licence charges are to be adjusted against the loan installment of LIC. The contention raised by Respondent No.1 with respect to the said transaction to purchase the said flat for Rs.30,00,000/- was denied. It is further denied that an amount of Rs.48,00,000/- 15 of 82 has been paid to deceased Sanjay Kolhatkar. It is further stated that the Respondent No.1 is illegally occupying the property of the deceased. The Respondent No.1 was called upon to pay Rs.50,000/- per month for unauthorised occupation of the said flat since December 2008.

(l) The Petitioners thereafter on 4th October 2012 filed an application under Section 24 of the Maharashtra Rent Act before the Competent Authority at Bandra bearing Application No. 96 of 2011 (pages 97-106).

(m) The Respondents filed an Application for leave to defend the same in January 2013 (pages 107 to 115A of the Writ Petition). In the said application seeking leave to defend inter alia following contentions are raised:-

(i) The application is barred by Law of Limitation.

(ii) Entire loan taken on that flat was paid by the

(iii) The contention is raised on the basis of said diary entry that Sanjay Kolhatkar has sold the said flat to the Respondents.

(iv) As the entry of the Respondents in the said flat is on the basis of an unregistered Leave and Licence Agreement, the same is not enforceable. Certain contentions are raised with respect to the business relations between the Respondent No.1 and Sanjay Kolhatkar.

(v) Certain contentions are raised regarding matrimonial dispute between deceased Sanjay Kolhatkar and the Petitioner No.1 being Divorce Petition No.195 of 2005. 16 of 82 However, it is pertinent to note that the Petitioner has not denied execution and registration of the registered Leave and Licence Agreement dated 25th January 2008. (n) The Petitioners filed Reply dated 6th May 2013 to the said leave to defend Application, which is titled as affidavitin-rejoinder to the written objections of the opponents (pages 116-122 of the Writ Petition). In the said Reply (affidavit-in-rejoinder) filed by the Petitioners, inter alia following contentions are raised:

(i) All the Petitioners are heirs and legal representatives of said Sanjay Kolhatkar. It is stated that said Divorce Petition is not at all relevant for the purpose of said Application filed under Section 24 of the Maharashtra Rent Act.

(ii) The signature on said alleged diary entry of

Sanjay Kolhatkar is forged and not that of Sanjay Kolhatkar. Same is very clear from bare perusal of the signature on the registered Leave and Licence Agreement dated 25th January 2008 and the said alleged signature of Sanjay Kolhatkar on the said diary entry.

(iii) As per the Leave and Licence Agreement, the monthly compensation of Rs.20,000/- was agreed to be paid to LIC towards repayment of loan and therefore, the said repayment of loan by Respondent No.1 is not relevant and on that basis, he cannot claim any ownership. It is denied that at any point of time, it was agreed to sell the said flat to the 17 of 82 (o) By Order dated 31st May 2014 (separately produced) passed by the learned Competent Authority, Konkan Division, Mumbai, the said Application filed by the Respondents seeking leave to defend was rejected. (p) By separate Order dated 31st May 2014 (pages 17-25 of the Writ Petition) passed by the Competent Authority, Konkan Division, Mumbai, said Application bearing Case No. 96/12 filed under Section 24 of the Maharashtra Rent Act was allowed and the Respondents were directed to handover the vacant and peaceful possession of the said flat to the Applicant and were further directed to pay the Petitioners an amount of Rs.40,000/- per month from August 2010 till the vacant possession of the said flat is delivered to the Applicant. It has been further directed that the Petitioners are at liberty to appropriate the amount of security deposit, if any. (q) In or about July 2014, the Respondents challenged the said Order before the Additional Commissioner, Konkan Division by filing Revision Application No. 275 of 2011. As already set out herein above, by the Order dated 7th October 2014 (pages 26-32 of the Writ Petition), the Additional Commissioner, Konkan Division, Mumbai allowed the said Revision filed under Section 44 of the Maharashtra Rent Act and set aside Order dated 31st May 2014 passed by the Competent Authority, Konkan Division, Mumbai and remanded the said case back to the Competent Authority for fresh disposal after allowing both the parties to adduce oral and documentary evidence and then to pass the final order as per law. The Additional Commissioner, 18 of 82 Konkan Division, Mumbai in the impugned order observed that the Respondents have raised contentions regarding diary entry and that the said Sanjay Kolhatkar has agreed to sell the property to the Respondents. It is further observed that the Respondents are residing in the said flat since 30th December 2000. The details of said diary entry are also set out in the order. Reference is made to above referred letter dated 13th August 2010 written by Respondent No. 1 to the Manager of LIC. The contentions of the Respondents that the loan amount was paid by the Respondent No.1 and the Respondent No.1 has also paid a huge consideration to Sanjay Kolhatkar is also referred. It is also observed that the present Petitioners failed to prove any documents regarding possession of the Respondents from the year 2002 to 2008. Reference is also made to the contentions raised by the Petitioners that all these documents are fraudulent and forged. In view of all these contentions raised by the Respondents and the defence raised by the Petitioners, it is concluded that vital issues of law and facts are involved in the matter and therefore it is necessary to allow the parties to adduce the documentary evidence. Therefore, leave to defend was granted to the Respondents. It is also further observed that in this case, recording of evidence is necessary to determine the controversy between the parties. (r) The present Writ Petition takes exception to the said Order dated 7th October 2014.

7. Before considering the challenge to the legality and validity of the said Order dated 7th October, 2014, it is necessary to set out the submissions of Mr. Rajiv Chavan, learned Senior Counsel appearing for 19 of 82 the Petitioners and Dr. Gupta, learned Counsel appearing for the Respondents.

8. Mr. Rajiv Chavan, learned Senior Counsel pointed out various terms and conditions of registered Leave and Licence Agreement dated 25th January 2008. He pointed out Section 24 of the Maharashtra Rent Act and particularly, explanation 'a' and 'b' to the same. He submitted that the Petitioners are the 'landlord' as contemplated under explanation 'a' of Section 24. He relied on explanation 'b' to Section 24 which provides that Agreement for Licence in writing shall be conclusive evidence of the facts stated therein. He pointed out Section 43(4) of the Maharashtra Rent Act and submitted that for the purpose of granting leave, the Competent Authority has to keep in mind explanation 'b' to Section 24 which specifies that the Agreement of Licence in writing shall be conclusive evidence of the facts stated therein. He submitted that the said aspect is required to be taken into consideration even while granting leave to defend the Application filed under Section 24 of the Maharashtra Rent Act for eviction. He submitted that alleged diary entry is neither in the handwriting of Sanjay Kolhatkar nor is it signed by Sanjay Kolhatkar. He submitted that the execution and registration of the registered Leave and Licence Agreement dated 25th January 2008 is not denied by the Petitioner. He submitted that the Additional Commissioner, Konkan Division, Mumbai has completely ignored the 20 of 82 said factual position and also legal position of special rule of evidence. He relied on the following decisions of this Court:- 1) Jasmeet Hoon v. Rita Johar, 2000 SCC OnLine Bom 524; 2001(1) Mh.L.J. 659.

2) Rajendra B. Nair v. Suresh D. Dyanmothe, 2002 SCC OnLine Bom 244; 2002(4) Mh.L.J. 93.

3) Shakeel Ahmed Fateh Mohd. Sundke v. Aziz Ahmed Khan, 2008 SCC OnLine Bom 562; 2008(6) Mh.L.J. 418.

4) Mukesh Dharsibhai Thakkar v. Rajnikant Ramanlal Gunderia; 2016 SCC OnLine Bom 731.

5) Rajkumar v. Alish Life, 2018 SCC OnLine Bom 16139 (Writ Petition No.7866 of 2018). He, therefore, submitted that the impugned Order of the Additional Commissioner is contrary to the relevant provisions of the said Act as well as contrary to the settled legal position.

9. Dr. Gupta, learned Counsel appearing for the Respondents submitted that the Leave and Licence Agreement dated 17th November 2001 is not a registered Agreement and therefore, the same has violated Section 55 of the Maharashtra Rent Act. He therefore, submitted that the eviction Application is required to be dismissed. He submitted that said Leave and Licence Agreement dated 25th January 2008 was for the period of 1st January 2008 to 31st November 2008 and the case has been filed on 4th October 2012 and therefore, the same is barred by limitation. He relied on Article 137 of the Limitation Act, 1963 and 21 of 82 contended that the case could not have been filed as the same is barred by limitation. He submitted that the Maharashtra Rent Act prescribes a strict timeline for filing the leave to defend Application and for disposal of the Application by the Competent Authority and therefore, it is incumbent on the landlord to file the said proceeding immediately. He also submitted that Sanjay Kolhatkar entered into an Agreement dated 2nd April 2003 by which the Respondents have agreed to purchase the said flat. He submitted that, therefore, in view of the provisions of Section 53A of the Transfer of Property Act, 1882 ("TOPA") the said Application could not have been filed. He pointed out the abovereferred diary entry dated 2nd April 2003 and submitted that the Additional Commissioner has rightly remanded the matter by granting liberty to both sides to adduce the evidence. As far as the submission of Mr. Rajiv Chavan, learned Senior Counsel appearing for the Petitioners regarding explanation 'b' to Section 24 of the Maharashtra Rent Act, he submitted that the said Agreement i.e. Diary noting executed by Sanjay Kolhatkar is dated 21st April 2003 and the Leave and Licence Agreement in question is dated 25th January 2008. Therefore, he submitted that the said provision of explanation 'b' to Section 24 of the Maharashtra Rent Act will not apply to the present case. He submitted that there are several Bank statements to demonstrate various payments made to Sanjay Kolhatkar as well as to LIC as well as letters addressed by the 22 of 82 Respondents to LIC. He submitted that the said payments and delay of more than 4 years clearly proves that there is an arrangement to sell the said flat between Sanjay Kolhatkar and the present Respondents. He submitted that notice dated 9th May 2008 on which the Petitioners have relied, is a fraudulent notice. He submitted that with respect to said fraudulent notice, a criminal case has been filed. Said criminal proceeding is pending. He submitted that suitability or lack of evidence adduced by the Petitioners is a matter of appreciation of evidence and that has to be decided by the Competent Authority and the same ought not to be decided in the Writ Petition filed under Articles 226 or 227 of the Constitution of India. He submitted that as the Petitioners have come up with a false case they are not entitled for any relief. He submitted that the case laws on which the Petitioners have relied are not applicable to the present case as the said decisions were given after final order of the Competent Authority and not at the stage of leave to defend. As far as the registered Leave and Licence Agreement dated 25th January 2008 is concerned, he submitted that said registered Leave and Licence Agreement can also be challenged on the ground of fraud. For substantiating the said contention, he relied on the decision of a learned Single Judge passed in the case of Engineering Export Promotion Council vs. Mrs. Savitri Dubey[1]. He relied on the decision of the 1 2013:BHC-AS:2320: Writ Petition 7380 of 2005 23 of 82 Supreme Court in the case of John Impex (P) Ltd. Vs. Surinder Singh[2] decided on 26th September 2000 and submitted that leave to defend ought not to be ordinarily refused. He submitted that in the present case, there are several triable issues and therefore, Additional Commissioner has rightly granted the leave to defend. To substantiate the said contention, he also relied on the following decisions:i. Precision Steel & Engg. Works v. Prem Deva Niranjan ii. Prakash H. Jain v. Marie Fernandes[4] He submitted that due to the inordinate delay in filing original case as well as the present Writ Petition, the Writ Petition be dismissed. He pointed out various proceedings and submitted that the Writ Petition deserves to be dismissed. He pointed out various dates and submitted that as the Petitioners have delayed the proceedings and therefore they are not entitled for any relief. He submitted that the Petitioners are guilty of abuse of judicial process for filing multiple proceedings in respect of the said issue and therefore, are estopped from raising said contentions. He submitted that the present Writ Petition is not maintainable. He also submitted that the power under Article 227 of the Constitution of India is to be used very sparingly and only in very exceptional case when manifest miscarriage of justice has been

24 of 82 occasioned. He submitted that this is not a case where exercise of jurisdiction under Article 227 of the Constitution of India is warranted. To substantiate the aforesaid contentions, he has relied on the following decisions of the Supreme Court and of this Court:-

(i) Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423

(ii) Udit Narain Singh Malpaharia v. Addl. Member Board of

(iii) Chandanmal Oswal v. Kishore, 1968 Mah LJ 155

(iv) Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616

(v) Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675

(vi) Chandrasekhar Singh v. Siya Ram Singh, (1979) 3 SCC 118

(vii) Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8

(viii) Great Eastern Energy Corporation Ltd. v. Jain Irrigation

10. In view of the above rival contentions, the following points arise for consideration of this Court:i. What is the scope of explanation 'b' to Section 24 read with Section 43(4) of the Maharashtra Rent Act? ii. Whether the Competent Authority while deciding the Application for leave to defend filed under Section 43(4) of the Maharashtra Rent Act can decide the same dehors the rigours of explanation 'b' to Section 24 of the Maharashtra Rent Act? 25 of 82 iii. Whether in the facts and circumstances of the present case, Additional Commissioner, Konkan Division is right in granting leave to defend to the Respondents? iv. Whether the Application filed under Section 24 of the Maharashtra Rent Act by the Petitioners bearing Case No.96 of 2012 is within limitation? v. Whether the Application under Section 24 of the Maharashtra Rent Act filed by the Petitioners deserves to be dismissed in view of the provision of Section 53(A) of the Transfer of Property Act, 1882? vi. Whether in the facts and circumstances of this case, interference in the impugned Order is warranted under the Writ Jurisdiction of this Court? Point No. i: What is the scope of explanation 'b' to Section 24 read with Section 43(4) of the Maharashtra Rent Act?

11. The relevant provisions of law concerning the scope and ambit of jurisdiction of Competent Authority dealing with cases covered by Section 24 of the Maharashtra Rent Act are as follows:

(i) Chapter V of the Maharashtra Rent Act sets out special provisions for recovery of possession in certain cases. Section 23 is concerning entitlement to recover possession of premises required for occupation by the members of armed forces of the 26 of 82 Union, scientists or their successor-in-interest. Section 24 is concerning the landlord entitled to recover the possession of the premises given on licence on expiry. In this case eviction proceedings are filed under Section 24 of the Maharashtra Rent Act, which reads as under: "24. Landlord entitled to recover possession of premises given on licence on expiry.—(1) Notwithstanding anything contained in this Act, a licensee, in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the competent authority, and the competent authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee. (2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the competent authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence. (3) The competent authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence. Explanation.—For the purposes of this section— (a) the expression “landlord” includes a successor-ininterest who becomes the landlord of the premises as a 27 of 82 result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence; and (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein."

(ii) Chapter VIII of the Maharashtra Rent Act provides for 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:- “39. The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force.”

(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-in- 28 of 82 interest, 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 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:- “43. Special procedure for disposal of applications- (1) Every application by a landlord under this 29 of 82 Chapter for the recovery of possession shall be accompanied by such fees as may be prescribed. The Competent Authority shall deal with the application in accordance with the procedure laid down in this section. (2) The Competent Authority shall issue summons in relation to every application referred to in subsection (2) in the form specified in Schedule III. (3) (a) The Competent Authority shall, in addition to, and simultaneously with, the issue of summons for service on the tenant or licensee, as the case may be, also direct the summons to be served by registered post, acknowledgement due, addressed to the tenant or the licensee or agent empowered by such tenant or licensee to accept the service at the place where the tenant or licensee or such agent actually and voluntarily resides or carries on business or personally works for gain. (b) When an acknowledgement purporting to be signed by the tenant or licensee or their agent is received by the Competent Authority or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or licensee or their agent had refused to take delivery of the registered article, the Competent Authority may proceed to hear and decide the application as if there has been a valid service of summons. (4) (a) The tenant or licensee on whom the summons is duly served in the ordinary way or by registered post in the manner laid down in subsection (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 30 of 82 affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid. (b) 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. Special provision for making application to Competent Authority by landlord to evict tenant or licensee. Special procedure for disposal of applications.

(c) Where leave is granted to the tenant or licensee to contest the application the Competent Authority shall commence the hearing of the application as early as practicable and shall, as far as possible, proceed with the hearing from day to day, and decide the same, as far as may be, within six months of the order granting of such leave to contest the application. (5) The Competent Authority shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.” 31 of 82

(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- (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:- 32 of 82 “47. Bar of jurisdiction - Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Competent Authority or the State Government or an officer authorised by it is empowered by or under this Act,to decide, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power so conferred on the Competent Authority or the State Government or such officer.”

(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 33 of 82 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 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.” 34 of 82

12. 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.

(i) In case of Jasmeet Hoon (supra), the said special procedure for eviction of Licencee before the Competent Authority prescribing a special rule of evidence is discussed in paragraph

11. The paragraph 11 reads as follows:-

5. ….But where a document or evidence is made conclusive it creates a presumption juris et de jure in fabvour of the truth 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 R. v. Levi, (1865) 34 L.J.M.C. 174. 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 same view has been reiterated in the earlier Judgment of another learned Single Judge Mr. Justice R.G. Vaidyanatha in Amarjit Singh v. R.N. Gupta reported in 1995 (4) BCR 538. In para 4 of his Judgment, the learned Judge held thus: “4. It is true as observed by the Supreme Court in Associated Hotels of India's case, AIR 1959 SC 1262 that the question whether in a particular case the transaction is one of a lease or licence is a question of fact to be decided on the peculiar facts and circumstances of the case, 36 of 82 the contents of the document, the intention of the parties etc. But in my view, in the present case, we are guided by a special legislation viz. the Bombay Rent Act which contains provisions for leave and licence in addition to tenancies. A special forum is created for eviction of licensees who are continuing in the premises after the expiry of the licence period. 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 facts stated therein. In view of this special rule of evidence prescribed under the Act we cannot go beyond the document to find out the intention of the parties, the circumstances of the case, the nature of possession etc. as pointed out by the Supreme Court in the Associated Hotels of India's case, that rule may be applicable to leases under the general law. But we are concerned with the leave and licence under a particular statute which prohibits taking of extraneous factors other than the contents of the document to find out the nature of the transaction.” Apart from these Judgments, two other learned Single Judges Mr. Justice P.S. Patankar and Mr. Justice R.M. Lodha have interpreted the provisions of section 13-A(2) in Automatic Electric Ltd. v. Sharadchandra Vinayak Tipnis reported in 1996 (1) Mh. L.J. 619, Sails India v. Rita M. Rupani reported in 1997 (2) Mh. L.J. 269 and Ramesh Ramrao Hate v. Parvez B. 37 of 82 Bhesania reported in 1997 (1) Mh. L.J. 295. Mr. Justice Patankar, referred in para 11 of his judgment in 1996 (1) Mh. L.J. 619 to the Statement of Objects and Reasons underlying section 13-A(2) which is as follows: “There are many a landlord who prefer to keep their premises vacant instead of letting them or giving them on licence fee for fear of not getting the premises back when they want the same for their own use as it requires several years to get possession of such premises through the Court of law. It is therefore proposed to encourage the system of giving premises by landlords on licence basis and, on the failure of the licensee to deliver possession of the licensed premises to the landlord on expiry of the period of licence, to enable the landlord to get the possession of the premises from licensee as speedily as possible. For that purpose it is proposed to amend section 6 suitably, and to insert new section 13-A(2). This special machinery for this purpose is proposed to be created by clause 19.” The learned Judge then holds as follows:— “The objects and reasons make it clear that many landlords do not let out the premises or on licence fee in view of the difficulty in getting back the premises under the provisions of the Act, whenever they want the same for their own use. It clearly condemns about the long delayscaused in prosecuting the litigation in Courts of law regarding getting the possession of the premises. It was necessary to change this scenario and to encourage landlords to give the premises on licence basis and to provide the machinery to enable the landlords to get back the premises immediately after the expiry of the 38 of 82 period of licence. It was necessary to introduce some speedy remedy. This was done by section 13-A(2) and special machinery was provided. It was thought by the legislature to induce the landlords to give the premises on licence basis.” In 1997 (1) Mh. L.J. 295 Mr. Justice R.M. Lodha has held in para 9 of his Judgment as under:— “9. Once the legislature by explanation (b) of section 13-A(2) has provided that a written agreement of licence shall be conclusive evidence of the facts stated therein, it provided a special rule of evidence for the purpose of proceedings under section 13-A(2) of the Bombay Rent Act. The intention of the legislature was to give finality to the existence of a fact occurring in the written agreement of leave and licence. In other words legislature intended to shut out any other evidence which would detract from the conclusiveness of that evidence. The object of expression ‘conclusive evidence of fact stated therein’ is aimed to give finality to the establishment of the existence of the fact or facts stated in the written leave and licence agreement from the proof of another. The argument of learned counsel for the petitioner that explanation (b) only makes the written agreement of licence conclusive evidence as regards the licensor and not against the licensee is very difficult to be appreciated. 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. The law laid down by the Apex Court in Smt. Somawanti case (supra) is clear answer to the contention of the learned counsel for the 39 of 82 petitioner wherein the Apex Court has 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 otherwise when such evidence is made conclusive. 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) 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. Same position holds good also in a case where the execution of written agreement of leave and licence is denied and the Competent Authority after recording evidence reaches the conclusion that execution of such agreement for leave and licence has been proved by the licensor.” In the present case, the law as laid down in these Judgments is squarely attracted.”

(ii) In the case of Rajendra B. Nair (supra), 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:- “8. On the other hand, on behalf of the respondent reliance was sought to be placed on clauses 2 and 12 of the agreement which respectively refer to the 40 of 82 payment of monthly rent and to the bar of subletting. It was next submitted that the documents in support of the plea that there was an oral agreement to sell were placed before the Competent Authority and the authority was consequently justified in forming the view that it ought not to allow the application for eviction. Finally, it was urged that the finding which was recorded by the Competent Authority should not be interfered with in revisional proceedings.

9. Section 13-A[2] of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has been introduced by amendment in order to provide a speedy remedy for the purpose of the recovery of possession of premises given on licence, on the expiry of the licence. Prior to the enactment of section 13- A[2], a great deal of legal ingenuity would be devoted to determining whether a Leave and Licence agreement was in fact an agreement of licence or of tenancy. A significant body of law had developed on the subject. Section 13-A[2] now provides that notwithstanding anything contained in the Rent Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence. On the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee by making an application to the competent authority. The competent authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of the licensee. Sub-section (2) of section 13- A[2] then provides that any licensee who does not deliver possession of the premises on the expiry of the period of licence and continues to be in possession until he is dispossessed by the competent authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under 41 of 82 the agreement of licence. Under sub-section (3), the competent authority is directed not to entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence. Explanation (b) to the section provides that for the purposes of the section an agreement of licence in writing shall be conclusive evidence of the fact stated therein. In other words, the mandate of Explanation (b) is that once there is a written agreement, it shall be conclusive evidence of the facts which are contained therein. Consequently, it would not be open to the parties to lead evidence to establish that what was in fact, stated to be an agreement of licence in writing, was not an agreement of licence but of tenancy. The legislative mandate of making the written agreement conclusive evidence of the facts stated therein has to be given full force and effect. These provisions have been interpreted in several judgments of the learned Single Judges of this Court and it would be convenient to make reference to those judgments.

10. The line of precedent in this area is clear and consistent. In Amarjit Singh v. R.N. Gupta, 1995 (4) Bom.C.R. 538. Mr. Justice R.G. Vaidyanatha speaking for this Court held that section 13-A[2] provides a special rule of evidence. The Court consequently cannot go beyond the document to find out the intention of the parties, the circumstances of the case, the nature of possession etc. … (This) particular statute prohibits taking of extraneous factors other than the contents of the document to find out the nature of the transaction. In Swami Attah v. Mrs. Thrity Poonawalla, 1996 (1) Mh.L.J. 603 Mr. Justice A.P. Shah held, after referring to the judgment of the Supreme Court in Smt. Somawanti v. The State of Punjab, AIR 1963 SC 151 that “where a document or evidence is made conclusive it creates a presumption juris et de jure in favour of the truth and legality of 42 of 82 the matter stated and no evidence can be adduced to contradict it.” Mr. Justice P.S. Patankar in Automatic Electric Ltd. v. Sharadchandra Vinayak Tipnis, 1996 (1) Mh.L.J. 619 referred to statement of objects and reasons underlying the introduction of section 13-A[2] by Maharashtra Act 18 of 1987 and took due notice of the fact that the legislature had acknowledged that many landlords do not let out premises or grant a licence in view of the difficulty in getting back the premises under the provisions of the Act. In view of the long delays involved in prosecuting litigation before Courts of law while getting back possession of the premises, the legislature had introduced a speedy remedy in section 13-A[2] and created a special machinery so as to encourage landlords to give premises out on a licence with an assurance that they will get back the premises immediately after the expiry of the period of licence. In Ramesh Ramrao Hate v. Parvez B. Bhesania, 1997 (1) Mh.L.J. 295: 1997 (1) ALL MR 39, Mr. Justice R.M. Lodha held that “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 learned Judge held that once the execution of the agreement of leave and licence is not disputed before the Competent Authority in an application under section 13-A(2) 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.”

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 43 of 82 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 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 (supra), 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:- “5. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. It is not in dispute that respondent No. 1 executed leave and licence agreement in favour of the petitioners on 28/10/2006 for a period of 12 months commencing from 01/11/2006 to 31/10/2007. Thus, entry of the petitioner in the premises in question is as a ‘licensee’. Section 52 of the Indian Easements Act, 1882 defines the expression “license’ and read thus:

52. “License” defined.-Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. 44 of 82

6. Though period of 12 months expired on 31/10/2007 that does not mean that status of the petitioner is changed from licensee to either a tenant or as a trespasser as the respondent permitted him to occupy the suit premises. In fact, in view of the Section 52 of the said Act, he continuous to be the licensee in the premises in question.

7. Ms. Baxi relied upon Section 55 of the Act to contend that the leave and licence agreement is compulsorily required to be in writing and is also required to be registered under the Registration Act,

1908. The responsibility of getting such an agreement registered is on the licensor and in absence of the written registered agreement, the contention of the licensee 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 out to him shall prevail, unless proved otherwise. She submitted that as the leave and licence agreement is not registered, the contention of the licensee/tenant prevails, unless proved otherwise by the licensor/landlord. She, therefore, submitted that the matter may be remanded to the competent authority so as to offer an opportunity to contest the application filed by the first respondent.

8. This issue is no longer res integra. In the case of Amit B. Dalal (supra), the learned Single Judge of this Court has considered Sections 24 and 25 of the Act as also decision of this Court in the case of (1) Ramesh Ramrao Hate v. Parvez Bhesania, ((1997) 1 Mah LJ 295, and (2) Raj Prasanna Kondur (supra). The relevant discussion is in paragraphs-19 to 20, which reads thus: “19. Thus in both the petitions, the execution of leave and licence agreements is not disputed by the Petitioner. The common issue which arises in 45 of 82 both the petitions is regarding the effect of nonregistration of the agreement of leave and licence on the clause (b) of explanation to section 24. The other common issue is as regards interpretation of sub section 2 of section 55 of the said Act of 1999. Section 24 of the said Act reads thus: _ _ _ _ _ _ _ It is not in dispute that under the said Act of 1947, section 13A(2) contained a similar provision. Clause (b) of the explanation to said section 13A(2) and clause (b) of explanation to section 24 of the said Act are identical. The said clause (b) of explanation to section 13A(2) of the said Act of 1947 has been given consistent interpretation by this Court. In the case of Ramesh Ramrao Hate v. Parvez Bhesania ((1997) 1 Mah LJ 295), this Court interpreted the said clause. In paragraph 8 and 9, this Court observed thus: “8. The controversy centres round the explanation (b) which makes a provision that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. Though the expression used in explanation is “conclusive evidence” it cannot be differentiated with the expression “conclusive proof......” “9. Once the legislature by explanation (b) or Section 13A(2) has provided that a written agreement of licence shall be conclusive evidence of the facts stated therein, it provided a special rule of evidence for the purpose of proceedings under section 13A(2) of the Bombay Rent Act. The intention of the legislature was to give finality to 46 of 82 the existence of a fact occurring in the written agreement of leave and licence. In other words legislature intended to shut out any other evidence which would detract from the conclusive of that evidence. The object of expression ‘conclusive evidence of fact stated therein’ is aimed to give finality to the establishment of the existence of the fact or facts stated in the written leave and licence agreement from the proof of another. The argument of learned counsel for the Petitioner that explanation (b) only makes the written agreement of licence conclusive as regards the licensor and not against the licence is very difficult to be appreciated. 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. The law laid down by the Apex Court in Smt. Somawanti' case (supra) is clear answer to the contention of the learned counsel for the Petitioner wherein the Apex Court has 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, 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 otherwise when such evidence is made conclusive. Once an execution of the agreement of leave and licence is not disputed before the Competent Authority in an application under section 13A(2) 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 47 of 82 facts stated therein. The Competent Authority has no option but to hold that the facts stated therein do exist.” (emphasis added) In the subsequent decisions, this Court has consistently adopted the said interpretation of clause (b). There is no reason why the ratio of the said decision should not govern the clause (b) of section 24 of the said Act. Thus, in both the cases it will not be open for the Petitioner to lead any evidence to show that the transaction was not of leave and licence but was of tenancy inasmuch as the facts stated in the leave and licence agreement establish that the Petitioner was inducted as a licensee in the suit premises. 19A. Now the question which remains to be decided in both the petitions is of interpretation of sub-section 2 of section 55 and the effect of the said provision on the said clause (b). Section 55 reads thus: _ _ _ _ _ _ _ In the case of Raj Prasanna (supra), while dealing with subsection 2of section 55 of the said Act of 1999, in paragraphs 14 and 15 of the judgment, this Court held thus: “14. The said Clause (b) in the Explanation to section 24 may, at first glance, appears to be contrary to the provisions under section 55of the said Act, since subsection (1) of section 55 requires an agreement to be in writing, besides its registration being mandatory, and sub-section (2) thereof provides that in the absence of written registered agreement, the contention of the 48 of 82 licensee regarding terms and conditions of the agreement would prevail, unless proved otherwise. It is to be noted that the presumptive value attached to the contention of the licensee in relation to the terms and conditions of the license is for the eventuality of “absence of written registered agreement”, whereas, the conclusive evidence spoken of under Clause (b) in the Explanation to section 24 relates to “facts” stated in the written agreement. 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 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. On the other hand, the provisions of section 55(2) and 55(3) of the said Act relate to the consequences of failure on the part of the landlord to comply with the requirement of registration of the agreement. 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. 49 of 82

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 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 sub-section 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. Sub-section 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 50 of 82 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 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 51 of 82 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 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.”

13. Dr. Gupta, learned Counsel appearing for the Respondents has relied on Engineering Export Promotion Council (supra). In the said case, the allegations of fraud were made and material prima facie establishing the fraud was produced and in that context, a learned Single Judge has observed that the Petitioners ought to have received an opportunity to establish that case by leading necessary evidence.

14. Dr. Gupta also relied on Precision Steel & Engg. Works (supra) and particularly on paragraph No.11 which reads as under:- “11. The language of sub-section (5) of Section 25-B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for 52 of 82 exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in Section 14(1) (e). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clauses of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted in Section 14(1) proviso (e). Upon a true construction of proviso (e) to Section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is (i) let for residential purposes; and (ii) possession of the premises is required bona fide by the landlord for occupation as residence for himself or for any member of his family etc.; and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of Section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord.” The said decision will have no application to the present case as the same is concerning a case filed for recovery of possession by the landlord from the tenant on the ground of bona fide requirement of residential premises under the provisions of the Delhi Rent Control Act, 53 of 82

1958.

15. Dr. Gupta also relied on Prakash H. Jain (supra), in which it has been held that Chapter VIII of the Maharashtra Rent Act is itself with a caption, “Summary disposal of certain applications” and Section 39 reads that the provisions of Chapter VIII or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force. Therefore, there is hardly any scope to have recourse to any other provisions in the very Act or any other law, when particularly there are specific and clear provisions or stipulation in Chapter VIII itself as to how a particular situation has to be handled and what are the powers of the authorities constituted for the purpose of Chapter VIII of the Maharashtra Rent Act. Dr. Gupta also relied on the observations in the said decision to the effect that the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted thereunder is not “Court” and the mere fact that such authority is deemed to be court only for limited and specific purposes, cannot make it a court for all or any other purpose and at any rate for the purpose of either making the provisions of the Limitation Act, 1963 attracted to proceedings before such competent authority or clothe such authority with any power to be exercised under the Limitation Act. 54 of 82

16. 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 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 55 of 82 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 otherwise 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 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 56 of 82 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.

17. 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 a 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 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 57 of 82 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 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 Act can decide the same dehors the rigours of explanation 'b' to Section 24 of the Maharashtra Rent Act?

18. In view of the above settled legal position, it is to be considered whether the Competent Authority, while deciding the Application for 58 of 82 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.

19. 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:-

(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 59 of 82 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 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 60 of 82 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, special rule of evidence as contemplated under Act is required to be considered. The licensor can only raise the contentions which are permitted by said special rule of evidence i.e. 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 61 of 82 licencee that the Agreement in question has been brought into existence as a fraud in that case, however, it is to be prima facie, decided by the Competent Authority that the said defence is not moonshine defence. Therefore, it is clear that the decision on which Dr. Gupta has relied on in John Impex (supra) and Precision Steel & Engg. Works (supra) will not apply to this case. Point No. iii: Whether in the facts and circumstances of the present case, Additional Commissioner, Konkan Division is right in granting leave to defend to the Respondents?

20. The above discussion shows that even for considering the Application seeking leave to defend in the proceedings filed by the Licensor against the Licencee special rule of evidence as contemplated under explanation (b) of Sub Section 3 of Section 24 of the Maharashtra Rent Act will apply. This is a case where the learned Competent Authority by detailed Order dated 31st May 2014 rejected the Application of the Respondents seeking leave to defend. The learned Competent Authority has recorded following reasons in paragraph No.5 while rejecting application of the Respondents seeking leave to defend:- “5. Heard both the parties and perused the record, from the facts and submission made by the rival parties. It is necessary to see that the Applicants claiming as owner of the Application premises which is disputed by the Respondent. Respondent submits that he is 62 of 82 residing in the Application premises and he is the owner of the Application premises as per the Agreement was entered on 02.04.2003. The Respondent has placed on record the copy of entry made in diary of the Respondent. The Letter dated 31.07.2010 and 13.08.2010 written by the Respondent to manager of LIC Housing Finance Ltd. The Respondent also placed on record the Bank statements which show the entry that the Respondent paid the huge amount to the Late shri. Sanjay Kolhatkar and LIC Housing Fiance Ltd. The Respondent also filed a complaint before bar council, against the Advocate of Applicant for forged Notices sent by him and Complaint dated 13.06.2011 filed in Police station. The Respondent also filed a criminal case against the Applicant and His Advocate by filing criminal case bearing no.240 of 2013. Further Respondent has challenged the Leave and License Agreement by stating that it was forged. The diary entry does not disclose any facts related to registered sale Agreement. The Bank statements show the entry of payment but is not proves that the payment was made regarding the sale of the Application premises. The Applicant has produced the documents like Agreement of sale dated 15th December, 1995, confirmation deed dated 16th March, 1999, Letters dated 07.04.1999 and 19th April, 1999 which shows the ownership right to the Application premises. The Applicant also placed on record the power of Attorney which shows that the Applicant are legal heirs and right to filed the present Application. On careful consideration of all these facts I have come to the conclusion that the Respondent has not raised any tribal issues and there is no valid defence in the case.”

21. By separate Order dated 31st May 2014, Competent Authority allowed the said Application filed under Section 24 of the Maharashtra 63 of 82 Rent Act. The Competent Authority apart from recording above reasons has held as follows:- "From the Documents produced before me I have to conclusion that Leave and Licence Agreement is expired and even after expiry of Leave and Licence Agreement Respondent failed to vacate the Application premises. Further I have come to conclusion that the Respondent has mala fide intention to grab the Application premises and trying to harass the Applicant."

22. The present Respondents filed Revision bearing No.275 of 2014 under Section 44 before the Additional Commissioner, Konkan Division, Mumbai. The Additional Commissioner by Order dated 7th October 2014 set aside Order dated 31st May 2014 passed by the Competent Authority and remanded the matter back to the Competent Authority for fresh disposal after allowing both the parties to adduce oral as well as documentary evidence and then to pass final order as per the provisions of law. Thus, in effect the Additional Commissioner has granted leave to the Respondents to defend the said Application filed under Section 23 of the Maharashtra Rent Act. The Additional Commissioner for passing said order, recorded the following reasons:- “I have gone through the papers of lower court and arguments of Ld. Advocate for both the parties and it reveals that the Applicants are residing in the Application premises from 13.12.2000 as late Shri. Sanjay Kolhatkar during his lifetime allowed the Applicants to use and occupy the Application premises. The said deceased had made diary entry for sale of the Application premises and accepted a part 64 of 82 consideration amount from the Applicants. The Applicants has placed on record diary entry and reports of the handwriting experts. As per the reports, signature of the deceased on the diary entry is matching with most of the documents produced by the Respondents. As per the said diary entry Applicants has to pay the loan installments in respect of Application premises to the LIC Housing finance Corporation Ltd., which shall be taken as sale consideration. The LIC Housing Finance Ltd. also issued original receipts towards repayment of loan amount by the Applicants. As per the said diary entry the deal was fixed at Rs.30 lakhs and Rs.[7] lakhs were paid in cash prior to 02.04.2003 by the Applicants. The Respondents denies the alleged diary entry and signature and submitted that the signature of the deceased on the diary is forged. The Applicants placed on record the Bank statements which show that the Applicant paid the huge amount to the Late Shri. Sanjay Kolhatkar and LIC Housing and Fiance Ltd. As per the Respondent the Bank statement placed on record by the Applicants does not in any manner show any consideration amount paid for sale of Application premises. The Respondent submits that the Applicants No.1 by way of Leave and License Agreement bearing no.TNN-8/616/2008, were permitted to continue to stay in the Application premises on payment of Rs.20,000/- as monthly compensation. The Leave and License Agreement ended on 30th November, 2008 and Applicants are illegally occupying the Application premises. As per the said Leave and License Agreement monthly compensation was to be paid to the Life Insurance Corporation Housing finance Ltd. The Respondents has not produced any document regarding possession of the Application premises by the Applicants from the year of 2002 to 2008. Respondents need to produce the documents to prove his contention that there is no sale deal fixed between 65 of 82 deceased and Applicants and all the documents produced by the Applicants are forged documents and Applicant is occupying the premises illegally. It is necessary to allow parties to adduce the documentary evidence. On careful consideration of all these facts I have come to the conclusion that there are tryable issues of law and facts involved in the matter. It will be just and proper to grant Leave to defend. The recording of Evidence is necessary to determine the controversy between the parties.”

23. The factual position on record as set out herein above shows that on 17th November 2001 Leave and Licence Agreement was entered into licensing said flat to the Respondents for a period of 11 months. The said alleged diary entry/writing dated 2nd April 2003 was executed allegedly between deceased Sanjay Govind Kolhatkar and the Respondents. Thereafter, again registered Leave and Licence Agreement was executed on 25th January 2008. It is an admitted position that the alleged Agreement to Sell is not a registered agreement. It is also an admitted position that the Respondents have not filed any suit for specific performance of said alleged Agreement to Sell as reflected in the said diary entry. However, what is significant to note is that even after said alleged diary entry, parties have entered into a fresh registered Leave and Licence Agreement dated 25th January 2008. The terms and conditions of the said leave and licence agreement were 66 of 82 already set out in the earlier part of this judgment. The period of leave and licence was from 1st January 2008 to 30th November 2008. Clause No.(F) of said registered leave and licence agreement is very specific by which, it is expressly agreed and declared by both the parties that the said agreement shall not be deemed to create/claim any interest or estate as a tenant or otherwise in the above mentioned premises. It is further specified that the said agreement shall not at any time result in the transfer or create in favour of the Licencee any right, title, interest or estate of any nature whatsoever in the said premises or in or upon the premises. It is further specified and declared that the Lincesors shall at all times during the subsistence of this agreement be deemed to be in exclusive and juridical possession of the said premises and the whole of the said premises shall always continue to be in sole and absolute unconditional and entire control of the Licensor. Clause (G) of the said agreement inter alia provides that if the agreement is not renewed, then the agreement will come to end on the expiry of original period of 11 months. Clause (H) of the said agreement provides that on the expiration or termination or revocation of the said agreement, the Licencee undertakes to remove itself and its servants and their belongings articles, goods and things from the said premises immediately and handover vacant and peaceful possession of the said premises to the Licensor in the same conditions as the Licencee received 67 of 82 it. Clause (I) of the said agreement clearly provides that the Licensor and Licencee hereto acknowledge that this agreement supersedes all prior communication between them including all oral or written proposals, but for the conditions precedent to this agreement to sale. It is further provided that the said agreement will be within the purview of Section 24 (1), (2), (3), of Maharashtra Rent Control Act, 1999 and the Licencee has given undertaking and assurance that he will not claim any right in the said premises. It is further provided that the Licensors shall be entitled to approach the Competent Authority for getting possession of the said flat, after the expiry of the said agreement period of said agreement.

24. Thus, in view of the law as laid down by this Court in various decisions that, the agreement of licence in writing shall be conclusive evidence of the facts stated therein will apply to the present case in view of explanation (b) to Sub Section 3 of Section 22 of the Maharashtra Rent Act. Thereto the following terms and conditions in the registered leave and licence agreement dated 25th January 2008 shall be conclusive evidence of the fact stated therein:-

(i) The permission was granted by Licensor to Licencee to use the licenced premises from 1st January 2008 upto 30th November 2008.

(ii) The Licencee has specifically agreed to vacate the suit

(iii) Not to claim any right or interest of any kind or nature whatsoever in the premises or any part thereof save and except to use the same as Licencee. By said leave and licence agreement, no right is created in favour of the Licencee of whatsoever nature.

(iv) The said leave and licence agreement dated 25th January

2008 supersedes all prior communication between them including all oral or written communications. Thus, all these terms and conditions of the leave and licence agreement shall be treated as conclusive evidence of the facts stated therein.

25. As already discussed herein above, the object of expression ‘conclusive evidence of fact stated therein’ is aimed to give finality to the establishment of the existence of the facts stated in the written leave and licence agreement. Therefore, the same prohibits any other evidence which may affect the conclusiveness of the evidence as set out in the written Leave and Licence Agreement. It is a settled legal position that if a certain evidence is made conclusive evidence, it prohibits any other evidence to be led which may detract from the conclusiveness of that evidence. Thus, if order of the Additional Commissioner dated 7th 69 of 82 October 2014 is examined on the basis of the settled legal position that the agreement of licence in writing shall be conclusive evidence of the facts stated therein and facts stated in the registered leave and licence Agreement dated 25th January 2008 are examined, then it is clear that the order of the Additional Commissioner by which case is remanded back to the Competent Authority for fresh disposal after allowing both the parties to adduce oral as well as documentary evidence and then to pass final order is in the teeth of above settled legal position as well as contrary to the special rule of evidence as contained in explanation (b) of Section 24 of the Maharashtra Rent Act and also contrary to the terms and conditions of said registered leave and licence agreement dated 25th January 2008. As per the settled legal position, it is not permissible for the Court to go behind the document to find out the real intention of the parties. In 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. The object of expression ‘conclusive evidence of fact stated therein’ is aimed to give finality to the establishment of the existence of the fact or facts stated in the written leave and licence agreement from the proof of another. 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 70 of 82 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 otherwise when such evidence is made conclusive.

26. The Additional Commissioner inter alia while remanding back the matter has given emphasis on the alleged diary entry and payments allegedly made in cash prior to 2nd April 2010 as well as Respondent No.1's letters dated 31st July 2010 and 13th August 2010 etc. The Additional Commissioner has also relied on the fact that the Respondents were allowed to stay in the said flat from the year 2002 to

2008. However, legal position as discussed herein above, clearly shows that no such evidence can be led before the Competent Authority as the facts stated in the agreement of licence in writing shall be conclusive evidence of the same. The effect of all these factual aspects which are set out in the Agreement of Leave and Licence and which are of conclusive evidence clearly shows that the Petitioners are the owners of the property, the Respondents are merely Licencee and all prior communications, writings are superseded by the said agreement. 71 of 82 Therefore, the reasons recorded by the Additional Commissioner for remanding of the matter for recording evidence establishing the said factors alleged diary entry and payments allegedly made in cash prior to 2nd April 2010 as well as Respondent No.1 is letters dated 31st July 2010 and 13th August 2010 etc. are totally beyond the purview of the inquiry which the Competent Authority is required to conduct in view of explanation (b) of Section 24 read with Section 43 of the Maharashtra Rent Act. Although it is the contention of the Respondents that fraud is played, no prima facie material is brought on record. The said alleged Agreement to Sell dated 2nd April 2003 (Diary entry) on which strong reliance is placed is not registered document and therefore the same cannot be relied. In any case thereafter registered Leave and Licence Agreement dt.25th January 2008 was executed. Therefore, the Additional Commissioner has committed illegality in setting aside the Order passed by the Competent Authority by remanding the matter to the Competent Authority for fresh disposal after allowing both the parties to adduce oral as well as documentary evidence and then to pass final order as per law. Point No. iv: Whether the Application filed under Section 24 of the Maharashtra Rent Act by the Petitioners bearing Case No.96 of 2012 is within limitation?

27. The next contention raised by Dr. Gupta, learned Counsel appearing for the Respondents is that the Application filed under 72 of 82 Section 24 of the Maharashtra Rent Act bearing Case No.96 of 2012 is barred by limitation. The following factual aspects are important for considering the said contention:i. The registered leave and licence agreement is dated 25th January 2008. The period of said leave and licence agreement was from 1st January 2008 to 30th November 2008. ii. On 9th May 2008, the Petitioners sent notice calling upon the Respondents to give vacant, physical possession of the premises to them. iii. On 20th February 2011, original Licensor-Sanjay Kolhatkar passed away. iv. The Petitioners filed the present application under Section 22 of the Maharashtra Rent Act on 4th October 2012. v. The present Petitioners in the application filed under Section 22 of the Maharashtra Rent Act have raised following contentions in paragraph Nos.[5] and 6 (pages 102 and 103 of the Writ Petition):

28. It is clear that the notice terminating the leave and licence is dated 9th May 2008 and in any case, period of agreement came to an end on 8th December 2008 and the application under Section 24 was filed on 4th October 2012. It is also an admitted position that in terms of 74 of 82 the Leave and Licence Agreement, the Respondent Nos. 1 and 2 have paid the agreed monthly compensation to LIC and last such cheque is forwarded by the Respondent No. 1 on 31st July 2010. Thus, it is clear that although the period of Leave and Licence Agreement came to an end on 8th December 2008, the Respondent No.1 and 2 continued occupation and paid the leave and licence charges as per the registered Leave and Licence Agreement and last such payment is dated 31st July

2010. Thus, the Application filed on 4th October 2012 is within limitation.

29. It is an admitted position that the original Licensor Sanjay Kolhatkar passed away on 28th February 2011 and thereafter the Petitioners requested the Respondents to vacate the said flat. However, as the same was not done, ultimately the Application was filed under Section 24 of the Maharashtra Rent Act on 4th October 2012. Therefore, there is no substance in the contention raised by Dr. Gupta. Point No. v: Whether the Application under Section 24 of the Maharashtra Rent Act filed by the Petitioners deserves to be dismissed in view of the provision of Section 53(A) of the Transfer of Property Act, 1882 ?

30. The next contention raised by Dr. Gupta is that Application filed under Section 24 of the Maharashtra Rent Act deserves to be dismissed in view of provisions of Section 53A of TOPA. The said Section 53A of TOPA reads as under:- 75 of 82 “53-A. Part performance.—Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, Notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”

31. It is important to note that Section 53A has been amended by Act 48 of the 2001 and the same amendment is w.e.f. 24th September 2001. By the said amendment, the words “the contract, though required to be registered, has not been registered, or,” are omitted. Therefore, it is clear that for application of Section 53A of TOPA after 24th September 2001 the contracts is required to be registered Agreement. As per 76 of 82 Section 17(1)(b) of the Registration Act, 1908, instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property is required to be compulsory registered. It is an admitted position that the said alleged diary entry by which according to the Respondents, said Licensor - Sanjay Kolhatkar agreed to transfer the said flat in favour of the Respondents for an amount of Rs.30,00,000/- (Rupees Thirty Lakhs Only) is not a registered document. Therefore, Section 53A of TOPA will have no application in the present case. As already held herein above, in any case, the said alleged diary entry is dated 2nd April 2003 and thereafter the registered leave and licence agreement dated 25th January 2008 was entered into. Therefore, no evidence contrary to the fact stated in the agreement of leave and licence which are conclusive evidence be relied and led and therefore, also no reliance can be placed on the diary entry. Therefore, there is no substance in the said contention raised by Dr. Gupta. Point No. vi: Whether in the facts and circumstances of this case, interference in the impugned Order is warranted under the Writ Jurisdiction of this Court?

32. Dr. Gupta, learned Counsel appearing for the Respondent has relied on several decisions to contend that interference by this Court in the impugned Order of Additional Commissioner, Konkan Division 77 of 82 Mumbai is not warranted under Article 227 of the Constitution of India.

33. In the recent decision of the Supreme Court in the case of K. Chinnammal v. L.R. Eknath[5], the said aspect is discussed in paragraphs 31 and 32. The same read as under: “31. As far as the width and amplitude of powers of the High Court under Article 227 of the Constitution is concerned, we need only take note of, in praesenti, Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, and Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181. In Estralla Rubber (supra), it was stated: “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is

78 of 82 not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.

7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand [(1972) 1 SCC 898: AIR 1972 SC 1598] in AIR para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh v. Amarnath [AIR 1954 SC 215: 1954 SCR 565]. This Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarte [(1975) 1 SCC 858: AIR 1975 SC 1297] has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.”

32. In the more recent Garment Craft {supra), this Court put it thus: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 79 of 82 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.”

34. In present case, the Additional Commissioner, Konkan Division, Mumbai has completely ignored the explanation ‘b’ to 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 and the settled legal position in that behalf. The Additional Commissioner also 80 of 82 completely ignored that the alleged Agreement to Sell dated 2nd April 2003 (diary entry) is not a registered document and, therefore, cannot be taken into consideration for the purpose of Section 53A of TOPA. The Additional Commissioner also ignored that no evidence can be led which is contrary to the terms and conditions of the registered Leave and Licence Agreement. Thus, the impugned Order of remand passed by the Additional Commissioner for the purpose of granting opportunity to the Respondents to lead the evidence is totally contrary to the applicable legal provisions and also settled legal position as discussed earlier.

35. Therefore, this is a case where interference in the impugned Order is warranted under the Writ Jurisdiction of this Court.

36. Accordingly, I pass the following order:- O R D E R

(i) The Order dated 7th October 2014 passed by the

Additional Commissioner, Konkan Division in Revision Application No.275 of 2014 is quashed and set aside and Order dated 31st May 2014 passed by the Competent Authority, Konkan Division, Mumbai in Case No.96 of 2012 is restored.

(ii) Accordingly, the Writ Petition is disposed of in above terms with no order as to costs.

37. Learned Counsel appearing for the Respondents at this stage 81 of 82 seeks stay of this Order for a period of three months. Mr. Rajiv Chavan learned Senior Counsel appearing for the Petitioners opposes the request. However, in the interest of justice, this Order be not executed for a period of three months from the date of uploading of this Order. (MADHAV J. JAMDAR, J.)