Bombay High Court
Rajendra B. Nair vs Suresh D. Dyanmothe And Anr. on 8 March, 2002
Equivalent citations: AIR2002BOM382, 2002(6)BOMCR427, (2002)3BOMLR766, 2002(4)MHLJ93, AIR 2002 BOMBAY 382, (2002) 4 MAHLR 337, (2002) 2 RENCJ 390, (2002) 2 RENCR 631, (2003) 1 RENTLR 39, (2002) 6 BOM CR 427, 2002 (3) BOM LR 766, 2002 BOM LR 3 766
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
ORDER D.Y. Chandrachud, J.
1. The Applicant is the owner of certain premises bearing Flat N. 10, situated at Perystar Co-operative Society, Eksar Road, Borlvali (West), Mumbai-400 092. An agreement of Leave and Licence was entered into between the applicant and the respondent on 10th July 1991. The Leave and Licence agreement was for a term of 11 months commencing from 10th July 1991 and was to expire on 10th June 1992. Under the terms of the licence, it was provided that the licensee shall pay a sum of Rs. 11,000/-to the licensor as and by way of security deposit. The monthly licence fee, it was agreed, would be Rs. 1,000/- which would be adjusted from the security deposit. Clause 10 of the Deed of Licence provided that the possession of the Licensee shall be non-exclusive and only temporary in nature and clause 14 stipulated that the licence would not create any tenancy or such other right in the licensee over the premises.
2. Subsequently, a second agreement of Leave and Licence was entered into between the parties on 9th September 1992. Clause 1 of the Deed of Leave and Licence expressly stated that the licensor has granted a licence to the licensee to use and occupy the premises only for a temporary period of three months commencing from 9th September 1992 and expiring automatically on 8th December 1992. Clause 2 provided that the licensee shall pay a sum of Rs, 3,500/- to the licensor as and by way of monthly rent. Clause 8 provided that the licensor shall have free access to the said premises at all reasonable times for inspection and by Clause 10, it was agreed that possession of the licensee shall be non-exclusive and shall be temporary in nature and the licence was liable to be revoked by the licensor by one month's notice in writing under Clause 11. Clause 12 provided that the licensee agrees that he shall not in any manner claim any right in any capacity whatsoever beyond the terms of licence, nor shall he let or sublet the said premises to any other person. Finally, Clause 14 provided that the licence, shall not create any tenancy or such other right of occupation to the licensee over the premises.
3. Since the respondent failed to vacate the premises upon the expiry of the terms of licence on 8th December 1992, a notice was addressed by the applicant to the respondent on 1st February 1993 stating that three cheques which had been issued by the respondent towards the payment of monthly compensation had been dishonoured and calling upon the respondent to hand over peaceful and vacant possession. In reply, by a letter dated 18th "February 1993, the respondent set up the case that what was granted to the respondent was a letting out of the flat though, "as usual" a leave and licence agreement was obtained. The respondent then set up the case that in June 1992, an oral agreement to sell the flat to the wife of the respondent was entered into by the applicant at and for a consideration of Rs. 4.3 lakhs out of which an amount of Rs. 1 lakh was paid in cash.
4. On 23rd March 1993, the applicant filed an application before the competent authority under Section 13A-2 of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 for eviction. In the said application, the written statement was filed by the respondent in October 1993 and in December 1993 the respondent's wife made an application for being joined as a party respondent. That application came to be dismissed on 14th January 1994. On 25th August 1995, the respondent's wife instituted a suit for specific performance of an oral agreement to sell in this Court on the Original Side, being Suit No. 3228 of 1995, By an order passed by this Court of 25th August 1995, ad interim relief was refused to the plaintiff in the said suit and it has been stated that the Notice of Motion was thereafter dismissed.
5. The respondent has instituted declaratory suit in the Small Causes Court, being RAD Suit Stamp No. 229 of 1993 in which the respondent made a prayer that he should be declared a tenant in respect of the premises. There was also a prayer for injunction restraining the applicant from dispossessing the respondent save and except by due process of law.
6. The application which was filed by the applicant herein was dismissed by the Competent Authority by its order dated 16th July 1996. Before the Competent Authority it was an admitted position that the respondent has signed both the agreements of Leave and Licence respectively dated 10th July 1991 and 9th September 1992. However, while dismissing the application filed by the applicant, the Competent Authority relied upon the evidence of the respondent to the effect that there was an oral agreement between the applicant and the respondent for the sale of the property to the wife of the respondent at and for a consideration of Rs. 4.38 lakhs. The Competent Authority took the view that the respondent was a tenant in the premises and this view was on the basis that the second Leave and Licence agreement which was entered into between the parties on 9th September 1992 used the expression "Rent" to denote the monthly compensation of Rs. 3,500/- that was agreed to be paid to the applicant. The Competent Authority then held that after the expiry of the first agreement of 10th July 1991, no notice was issued to vacate the premises and for this there was no reasonable explanation. Finally, the authority relied upon Clause 12 of the agreement which stipulates that the licensee agreed that he shall not in any manner claim any right or interest in the premises in any capacity and shall not let or sublet the premises to any other person. Apart from this, the Competent Authority was of the view that the indication of the existence of a tenancy is that the respondent had instituted a suit, being RAD Suit No. 229 of 1993 for declaring himself as a tenant in respect of the premises. In sum and substance, therefore, the authority relied upon the claim to tenancy urged on behalf of the respondent and upon the pendency of the suit for specific performance as ground for denial of relief to the applicant,
7. The learned counsel appearing on behalf of the Applicant submits that the view taken by the competent authority is palpably erroneous and is in the teeth of the express provisions of Section 13-A2 of the Act. The learned counsel relied upon the provisions of explanation (b) to the said Section and submitted that it is now a well settled principle of law, in view of several judgments of this Court, that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. It was submitted that in these circumstances, it was not open to the Respondent to lay a claim of tenancy.
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 payment of monthly rent and to the bar of subletting. 11 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-A2 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-A2, 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-A2 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 licenses 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-A2 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 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 waiting shall be conclusive evidence of the fact stated therein. Inother 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 agree-ment 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.
1O. The line of precedent in this area is clear and consistent. InAmarjit Singh v. R. N. Gupta, 1995 (4) Bom CR 538. Mr. Justice R.G. Vaidyanatha speaking for this Court held that Section 13-A2 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. InSwami Attah v. Mrs. Thrity Poonawalla, Mr. Justice A. P, Shah held, after referring to the judgment of the Supreme Court in Smt. Somawanti v. The State of Punjab, 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 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 LJ 619 : (1996 AIHC 561) referred to statement of objects and reasons underlying the introduction of Section 13-A2 by Maharashtra Act 18 of 1987 and took due notice of the facts 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 bank possession of the premises, the legislature had introduced a speedy remedy in Section 13-A2 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) All MR 39 : (1997 AIHC 2521), 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-A2 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 first agreement of Leave and Licence was entered into on 10th July 1991 and expired on 10th June 1992, The agreement which was entered into between the parties on 9th September 1992 which is the second agreement, expressly provides that what was being agreed upon between the parties was that the licensor would allow the licensee to use and occupy the premises purely on a temporary basis on leave and licence, for a period of three months. Clause (1) expressly provides that the licensor grants a licence to the licensee. It is true that the word "rent" has been used in Clause 2 while referring to the payment of compensation fixed at Rs. 3500/- per month. That in my view would not make any difference because it is a well settled principle of law that the mere use of words such as "rent" or for that matter "compensation" would not be dispositive of the legal relationship between the parties. Clause (8) of the agreement gives free access to the premises to the licensor at all reasonable times for inspection. Clause 10 recognises that the possession of the licensee would be non-exclusive and would be only temporary. Clause 11 provides that the licence could be revoked. Finally, Clause 14 expressly stipulates that the licence would not create any tenancy. Therefore, the mere reference in Clause 12 to the fact that the licensee will not let or sublet the premises, cannot be construed to mean that a right of tenancy was created in favour of the licensee. The agreement is one by which a licence pure and simple was created in favour of the Respondent. Explanation (b) to Section 13-A2 must be given effect and its consequence is that the parties are shut out from leading evidence for the purpose of demonstrating that the agreement was not a leave and licence agreement. The provisions of the agreement which have been adverted to above clearly establish that the agreement was in fact and in law what it purported to be namely, an agreement by which a licence to occupy the premises was given to the Respondent for a temporary period of three months. This needs emphasis, because quite apart 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.
12. The pendency of the declaratory suit which has been filed by the respondent before the Small Causes Court cannot detract from the legal position which ensues under Section 13-A2 or affect the jurisdiction, statutorily conferred upon the competent authority of ordering the eviction of a licensee whose entitlement to occupy the premises has come to an end upon the expiry of the licence. The provisions of Section 13-A2 have effect, notwithstanding anything contained in the Rent Act. A licensee cannot claim an immunity from the obligation cast upon him by Section 13-A2 to vacate the premises upon the expiry of the licence by the institution of a Declaratory Suit in the Small Causes Court. Nor can he claim an immunity from the jurisdiction of the competent authority to order him to vacate when he fails to do so upon the expiry of the licence. Section 13-A2 frowns upon such subterfuge and it is the plain duty and obligation of the Court to give effect to the legislative mandate.
13. The learned counsel appearing on behalf of the respondent has sought to rely upon the fact that the suit for specific performance which has been filed by the Respondent's wife claiming specific performance of an oral agreement for sale is pending before this Court. One thing must be noted which is that in the said suit ad interim relief was declined by the learned trial Judge. That apart, what is important to note is that the occupation of the premises by the Respondent is in his character of a licensee under the licence agreement of 8th September 1992. Neither the Respondent, nor for that matter his wife, claims that the is in possession in part performance of an agreement to sell. The learned counsel appearing on behalf of the respondent fairly stated that it is not the case of the respondent that he is in possession in part performance. Moreover even under Section 53-A of the Transfer of Property Act, 1882, such possession would have to be in pursuance of an agreement in writing. There is admittedly no agreement in writing for the sale of the premises. The respondent's wife has sued for specific performance of an alleged oral agreement and she would be entitled to execute or enforce any decree that may possibly be passed in the suit. The possession of the respondent is purely in the capacity of a licencee, whose possession must come to an end on the expiry of the terms of licence.
14. In the circumstances, I am of the view that the findings which have been arrived at by the competent authority are contrary to the express provisions of law. The competent authority has ignored the binding judgments of this Court interpreting the provisions of Section 13-A2 which hold the field. The view taken by the competent authority is with respect, legally perverse. In the circumstances, the interference of this Court under the revisional jurisdiction is clearly called for. It would be necessary for this Court to do so in order to prevent a manifest failure of justice.
15. In the circumstances, the impugned order of the competent authority dated 16th December 1996 is quashed and set aside. Sub-section (2) of Section 13-A2 lays down that a licensee who does not deliver possession to the licensor on the expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the competent authority, is liable to pay damages at double the rate of licence fee or charge fixed under the agreement of licence. The Respondent shall in the premises be liable to pay the licence fee at double the rate of the agreed licence fee with effect from the date of the expiry of the licence (8th December 1992) until possession is handed over to the Applicant.
16. This petition was admitted on 3rd February 1997. By an interim order dated 24th February 1997, the Respondent was directed to deposit the rent in this Court at the rate of Rs. 1000/- per month between January 1993 to January 1997 and to furnish solvent security to the satisfaction of the Additional Registrar of this Court for the amount at the rate of Rs. 2500/- per month from the month of January 1993 to January 1997. The Respondent was directed to continue to deposit during the pendency of the petition an amount of Rs. 1000/- per month in this Court. In view of the order which has been passed in this Revision Application, the applicant is allowed to withdraw the amount which has been deposited by the Respondent and to invoke the security which has been furnished in the amount of Rs. 2500/- per month under the directions of this Court. This will, however, not preclude the applicant from recovering the balance of the amount which is due and payable in pursuance of this order in accordance with law.
17. The Civil Revision Application is accordingly allowed with no order as to costs.