Bombay High Court
Shri Amit B. Dalal vs Shri Rajesh K. Doctor on 3 May, 2010
Author: A.S.Oka
Bench: A.S. Oka
1
Of Ash
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6587 OF 2009
Shri Amit B. Dalal. .. Petitioner
Vs
Shri Rajesh K. Doctor. .. Respondent
--
Petitioner.
Shri P.K. Dhakephalkar, Sr. Advocate i/by Shri R.S. Khadapkar for the
Shri G.S. Godbole i/by Shri Pravin N. Shah for Respondent.
--
WITH
WRIT PETITION NO. 2832 of 2009
Shri Chandrashekhar Madhav Vaidya. .. Petitioner
Vs
Mrs. Afiffa Altaph Sayyad & Ors. .... Respondents
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Shri A.A. Kumbhakoni i/by Shri T.D. Deshmukh for the Petitioner.
Shri Uday Warunjikar for Respondent No.1
Shri V.B. Tapkir for Respondent No.2.
--
CORAM : A.S. OKA, J
JUDGEMENT RESERVED ON : 26TH FEBRUARY, 2010
JUDGMENT PRONOUNED ON : 3RD MAY, 2010
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2
JUDGMENT :
Some of the questions arising in these Writ Petitions are common and, therefore, the Petitions are being finally disposed of by a common judgment. In both the Writ Petitions, the parties were put to notice that the Petitions will be decided finally at the stage of admission.
2. Both the Petitions arise out of the order of eviction passed under Section 24 of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as the said Act).
WRIT PETITION NO.2832 OF 2009
3. In the Writ Petition No.2832 of 2009, the dispute relates to a residential flat more particularly described in Paragraph 2 of the Writ Petition. An application for eviction was filed before the Competent Authority by the 1st Respondent against the Petitioner. The 2nd Respondent herein was the 2nd Opponent in the said application. In the application for eviction, the case made out by the 1st Respondent is that she was authorized by the 2nd Respondent to file the said application under Section 24 of the said Act of 1999 for possession of the suit premises described in Paragraph 2 of the Writ Petition. The 1st Respondent claims to be the purchaser of the suit premises from the 2nd Respondent. The case of the 2nd Respondent is that he was the owner of the suit premises and that the 1st Respondent ::: Downloaded on - 09/06/2013 15:54:49 ::: 3 purchased the suit premises from him by a Registered Sale Deed dated 23rd February, 2007. According to the case made out in the application for eviction, the Petitioner was inducted as a licensee in respect of the suit premises under an agreement of leave and licence dated 25 th April, 2006 executed by and between the 2nd Respondent and the 1st Respondent. The period of licence was to expire on 24th February, 2007. The agreed licence fee was Rs.3,300/- per month. The case made out in the application for eviction is that the Petitioner requested for accommodation till 31st March, 2007 on the ground that there is an engagement of his daughter. It is claimed that on the basis of the Sale Deed dated 23rd February, 2007, the Petitioner became licensee of the 1st Respondent. As the Petitioner failed to vacate the suit premises, the 1st Respondent filed an application under Section 24 of the said Act of 1999.
4. The Petitioner was permitted to contest the eviction application by filing a written statement. In the written statement, it was contended that the 2nd Respondent inducted the Petitioner as a tenant in respect of the suit premises from June, 2000 and monthly rent was of Rs.
3,200/- per month. According to the Petitioner, the 2 nd Respondent insisted on execution of a leave and licence agreement and as the Petitioner was in dire need of a residential accommodation, he signed the leave and licence agreement. It is contended that there were successive agreements executed by the 2nd Respondent of leave and licence which clearly shows an intention to create a tenancy. It was further contended that the 2nd ::: Downloaded on - 09/06/2013 15:54:49 ::: 4 Respondent had agreed to sell the suit premises to the Petitioner for consideration of Rs.6 lakhs. However, the 2nd Respondent sold the suit premises to the 1st Respondent. It was contended that the leave and licence agreement relied upon in the application for eviction requires compulsory registration in view of Section 55 of the said Act. As the same is not registered, in view of Section 49 of the Indian Registration Act, 1908 ( hereinafter referred to as the Act of 1908), the agreement cannot be read in evidence.
5. The Petitioner relied upon Civil Suit No.135 of 2007 filed by him for a declaration and injunction. It was contended that in view of the declaration of the tenancy claimed in the suit, the proceeding of application under Section 24 was required to be stayed by invoking Section 10 of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ).
It was submitted that the application for eviction is not maintainable.
6. The 2nd Respondent supported the application by filing a written statement. He stated that on the request made by the Petitioner, he was permitted to occupy the suit flat till 31st March, 2007. The 2nd Respondent stated that by virtue of a sale deed, the 1st Respondent had become owner of the suit premises. He stated that the Petitioner was never inducted as a tenant.
7. The Competent Authority by the judgment and order dated ::: Downloaded on - 09/06/2013 15:54:49 ::: 5 17th March, 2008 directed the Petitioner to vacate the suit premises. The Petitioner was directed to pay compensation at the rate of Rs.6,600/- per month from 25th February, 2007 till actual delivery of possession. A revision application was preferred by the Petitioner under Section 44 of the said Act before the learned Additional Commissioner. By an order dated 27th January 2009, the said revision application was rejected and therefore, the present Petition has been filed.
WRIT PETITION NO.6587 OF 2009
8. As far as the Writ Petition No.6587 of 2009 is concerned, the challenge is to the order of eviction passed under Section 24 of the said Act of 1999. In this Petition, the Respondent claims to be a licensor and owner of the suit premises being a flat more particularly described in Paragraph 3 of the Petition. The Respondent filed an application for eviction under Section 24 of the said Act against the Petitioner. According to the case of the Respondent, a leave and licence agreement dated 22nd August, 2005 was executed by and between the Respondent and the Petitioner by which a licence was granted to the Petitioner to occupy the suit premises for a period of 11 months which was to expire on 21 st July, 2006. It is contended in the application that a letter dated 22nd November, 2005 was issued by the Respondent to the Petitioner by which the licence was revoked. Though the licence was revoked, the Petitioner did not hand over possession of the suit premises to the Respondent. Therefore, the ::: Downloaded on - 09/06/2013 15:54:49 ::: 6 application for eviction was filed by the Respondent. An application for grant of leave to defend was filed by the Petitioner. In the said application for leave, the Petitioner stated that he has filed a declaratory suit in the Court of Small Causes for a declaration that he is a tenant in respect of the suit premises. It was contended that the leave and licence agreement produced by the Respondent appears to be a typed copy and not a copy of the alleged original agreement. Reliance was placed on an order of temporary injunction passed by the Court of Small Causes. It was contended that the Respondent accepted payment of a sum of Rs.2 lakhs from the Petitioner through the estate agent Shri Shamkumar. It was contended that in view of the order of temporary injunction passed by the Court of Small Causes, the application for eviction is not maintainable.
9. An order was passed on 14th March, 2007 by which the Competent Authority rejected the prayer for grant of leave to defend. On 5th August, 2008, the Competent Authority passed an order of eviction against the Petitioner. The Petitioner was directed to pay damages at the rate of Rs.20,000/- per month from 22nd December, 2008 till handing over of possession. A revision application was preferred by the Petitioner under Section 44 of the said Act which has been dismissed by the judgment and order dated 8th July, 2009 by the learned Additional Commissioner, Konkan Division. Being aggrieved by the aforesaid orders, the Petitioner has preferred the Writ Petition No.6587 of 2009.
::: Downloaded on - 09/06/2013 15:54:49 ::: 7SUBMISSIONS
10. The main legal submissions have been made by the learned counsel appearing for the Petitioner in Writ Petition No.2832 of 2009. The learned counsel appearing for the Petitioner in the said Writ Petition invited the attention of the Court to the provisions of section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the said act of 1947 ). He submitted that the said section was applicable to both oral as well as written licences . He pointed out that the said Act makes a departure from the said provision under the said act of 1947 by the incorporation of section 55 which provides that an agreement of licence has to be in writing and the same has to be registered in accordance with the Indian Registration Act, 1908 (hereinafter referred to as the said Act of 1908). He pointed out that sub-section 2 of section 55 provides for consequences of non-registration of such an agreement. He submitted that the consequence of non-registration of such agreement is that the contentions of the alleged licensee about the terms and conditions subject to which a premises has been given to him by the landlord on licence or have been let out to him, shall prevail, unless proved otherwise by the landlord. He submitted that the very fact that sub-section 3 of section 55 makes the contravention by the landlord of the provisions of sub-section 1 of section 55 punishable shows that execution of an unregistered agreement of licence has been prohibited by law. He submitted that the requirement of registration has to be read in clause (b) of ::: Downloaded on - 09/06/2013 15:54:49 ::: 8 explanation to section 24 of the said Act of 1999. In short he submitted that the clause (b) of the explanation will apply only if the agreement of leave and licence is duly registered in accordance with section 55. He placed reliance on a decision of the Apex Court in the case of Hammeeda Hardware Stores V/s B.Mohanlal Sowcar ([ 1988]2 SCC 513). He submitted that with a view to harmoniously construe section 55 with clause
(b) of explanation to section 24 of the said Act of 1999, it is necessary to read the word "registered" in clause (b). He submitted that in any event, an explanation to section is for the purposes of explaining the meaning of a substantive provision. The explanation does not enlarge on limited scope of the substantive provision.
11. He submitted that the clause (b) of explanation to section 24 cannot be read in violation of either section 24 or section 55 of the said Act of 1999. Section 55 does not recognise an unregistered agreement of leave and licence. He submitted that explanation (b) to section 24 will not apply in the case where application for eviction under section 24 is based on unregistered agreement of leave and licence.
12. He submitted that though section 24 begins by a non-obstante clause, even section 55 also starts with such a clause. He submitted that the non-
obstante clause in section 55 must be given preference and overriding effect on section 24 of the said Act of 1999. He submitted that in any case, non-
obstante clause gives overriding effect to substantive part of the section and ::: Downloaded on - 09/06/2013 15:54:49 ::: 9 not to an explanation to the section.
13. He submitted that as section 55 of the said Act of 1999 contemplates compulsory registration of an agreement of leave and licence in accordance with the provisions of the said Act of 1908, the non-registration thereof will attract consequences provided under section 49 of the said Act of 1908.
He submitted that the conclusiveness with which the agreement is clothed by explanation (b) of section 24 is of a 'fact' and not of 'facts'. He submitted that a written agreement cannot be a conclusive evidence of all the facts stated therein. He submitted that a written agreement of leave and licence can be at the most the conclusive evidence of the purpose of licence, the period of licence and the amount of licence fees provided the relationship of licenceor- licensee is admitted by the parties. He submitted that in any case clause (b) of section 24 will apply only to a legal agreement which is duly registered in accordance with section 55 (1) of the said Act of 1999. In short the contention is twofold. First is that as the leave and licence agreement has not been registered, clause (b) of explanation to section 24 will not apply as it applies only to a registered agreement. The second contention is that as admittedly there is non-registration, in view of subsection 2 of section 55 of the said act of 1955, it will be open for a licensee to plead that he was a tenant in respect of the suit premises and not merely a licensee.
14. Turning to the facts of the Writ Petition no. 2832 of 2009, he pointed ::: Downloaded on - 09/06/2013 15:54:49 ::: 10 out that section 41 of the said Act of 1999 will have overriding effect on the definition of a landlord under explanation (a) to section 24. He submitted that clause (c) of section 41 lays down that a landlord means a person who has given his premises on licence for residence or a person who is "successor-in-interest" referred to in section 24. He submitted that the clause (a) of explanation to section 24 provides that "a successor in interest" is a person who becomes landlord of the premises only as a result of death of the original landlord. He submitted that a successor-in-interest of the licensor cannot be a person who has purchased the suit premises from landlord. He submitted that in view of definition under section 41 of the said Act of 1999, either a licensor who has inducted the licensee in possession or on his demise, his legal representative can file an application under section 24. He submitted that if a subsequent purchaser through the licensor is held entitled to file an application under section 24, the entire object of the special provision will be lost. He submitted that this aspect has been completely ignored by the Competent Authority. He submitted that in the present case the application under section 24 of the said Act of 1999 has been filed by the first Respondent who was claiming to be a purchaser from the landlord who inducted the Petitioner. He submitted that such a purchaser cannot be a landlord within the meaning of section 24 of the said Act of 1999. He submitted that even on this ground , the application deserves to be dismissed.
15. The learned senior counsel appearing for the Petitioner in Writ Petition ::: Downloaded on - 09/06/2013 15:54:49 ::: 11 no. 6587 of 2009 submitted that the alleged leave and licence agreement was not duly proved by the licensor. He submitted that the said agreement was not duly stamped on the date of execution of the agreement and the subsequent act of franking the instrument was irrelevant and the document was not admissible in evidence as it was not properly stamped on the date of execution thereof.. He submitted that in the copy of the alleged licence agreement produced by the Respondent before the Competent Authority, there were over writings. He submitted that there was no proper revocation of the leave and licence agreement. He adopted submissions made by the learned counsel appearing for the Petitioner in the companion Writ Petition inasmuch as even in the present case the agreement of leave and licence has not been registered. He submitted that the Competent Authority has not considered the effect of pendency of the civil suit. He submitted that the decision of this Court in the case of Raj Prasanna Kondur versus Arif Taher Khan and others (2005[4] Bom. C.R
125) will require reconsideration inasmuch as the interpretation put by this Court to section 55 of the said Act of 1999 completely defeats sub-section 2 of section 55.
16. The learned counsel appearing for the first Respondent in Writ Petition No. 2832 of 2009 pointed out that the application for eviction was filed by the said Respondent under the authority of the second Respondent who was the original owner of the suit premises. He pointed out that the second ::: Downloaded on - 09/06/2013 15:54:49 ::: 12 Respondent has been examined as a witness. He submitted that the case of the Petitioner is that he had tendered rent to the first Respondent in respect of the suit premises. He submitted that in any case, the execution of the agreement of leave and licence has not been denied by the Petitioner and therefore explanation (b) of section 24 of the said Act of 1999 will squarely apply. The learned counsel appearing for the Respondent in Writ Petition No. 6587 of 2009 submitted that if an agreement of leave and licence is in writing, clause (b) of explanation to section 24 applies notwithstanding non- registration of the agreement. He submitted that sub-section 2 of section 55 does not permit a licensee to dispute the relationship of as a licensor and licensee but a licensee can contend that the terms and conditions of the licence are different from the terms and conditions of the licence incorporated in the agreement. He submitted that as far as clause
(b) of explanation to section 24 is concerned, there are series of decisions of this Court holding that it is not open for a licensee to lead evidence which would be contrary to the terms of leave and license agreement. He submitted that the object of the expression is aimed to give finality to the existence of the facts stated in the licence agreement. He submitted that there is no reason to make a departure from the consistent view taken by this Court.
CONSIDERATION OF SUBMISSIONS AND REASONS 16A. I have given careful consideration to the submissions. As far as Writ Petition No. 6587 of 2009 is concerned, the application for eviction ::: Downloaded on - 09/06/2013 15:54:49 ::: 13 filed by the Respondent is based on agreement dated 22nd August 2005 by which a leave and licence to occupy the suit premises was granted which was to expire on the 21st July 2006. The agreed licence fee was of Rs.
10,000/- per month. Prior to filing of the application under section 24 of the said Act of 1999 by the Respondent, the Petitioner filed a suit for declaration that he was a tenant in respect of the suit premises. In the plaint, in paragraph 6 thereof, it is alleged by the Petitioner that on 22 nd August 2005, the constituted attorney of the Respondent asked the Petitioner to sign some papers under the pretext that as the agreement of tenancy was not ready, his signature on a writing was necessary to show that possession of the suit premises was handed over to the Petitioner. The Petitioner stated that when he saw the leave and licence agreement dated 22nd August 2005, he expressed utter surprise. At that time , an assurance was given by the constituted attorney of the Respondent that an agreement of tenancy will be executed within a short time. Thus, in the suit, the case made out by the Petitioner is that a signature on the leave and licence agreement dated 22nd August 2005 was obtained in the aforesaid fashion. Thus the execution of the leave and licence agreement is admitted, but the contention of the Petitioner is that what was agreed to be executed was an agreement of tenancy.
17. In the application made by the Petitioner seeking leave to defend before the Competent Authority, an advantage was sought to be taken by the Petitioner of the obvious mistake in the notice of revocation of ::: Downloaded on - 09/06/2013 15:54:49 ::: 14 licence wherein the date of agreement is mentioned as 20th of August 2005 and instead of 22nd August 2005. The case made out in the application is that a tenancy was created in favour of the Petitioner. However there is no specific denial of the execution of the leave and licence agreement. It is contended that the agreement is unregistered and the same is invalid as the same is executed by a person holding invalid power of attorney. Thus the contention in short is that the Petitioner is the tenant and that the leave and licence agreement is invalid. A similar contention has been raised in the written statement filed by the Petitioner. It is pertinent to note that the Petitioner did not step into witness box. The Petitioner examined his brother who was his constituted attorney. The Competent Authority noted that the constituted attorney of the Petitioner in his cross examination admitted that the leave and licence agreement was executed by the Petitioner and that he was present at the time of execution of the agreement. The Competent Authority has observed that there was a delay on the part of the constituted attorney of the Petitioner while answering questions put in the cross-
examination and his demeanor has been recorded the Competent Authority.
The Competent Authority further observed that the Petitioner should have stepped into witness box to deny the execution of the agreement. The Competent Authority noted that there was no ground available to the Petitioner not to enter the witness box as the constituted attorney admitted in the cross-examination that the Petitioner was in the house. The Competent Authority on recording a finding that execution of leave and licence agreement was admitted, applied clause (b) of explanation to ::: Downloaded on - 09/06/2013 15:54:49 ::: 15 section 24 and held that the agreement was conclusive evidence of the facts stated therein. Thus, the Competent Authority held that the leave and licence agreement was proved and on the revocation of licence , the Respondent is entitled to possession. The Revisional Authority noted in the judgment that a submission was made on behalf of the Petitioner that the leave and licence agreement produced along with the application for eviction does not tally with the leave and licence agreement on which the Competent Authority has relied upon. However, the Revisional Authority noted that execution of leave and licence agreement was admitted. Relying upon a decision of this Court, the Competent Autority as well as the Revisional Authority held that non-registration of the agreement has no consequence in view of clause (b) of explanation to section 24 of the said Act. The contention in the written statement of the Petitioner shows that the execution of the leave and licence agreement by the Petitioner was admitted , but it was sought with the contended that the signature of the Petitioner on the said document was obtained by misrepresentation and in fact it was intended to create a tenancy in respect of the suit premises.
Thus, the finding of fact based on oral and documentary evidence on record is that execution of leave and licence agreement dated 22 nd August 2005 has been admitted. It is not the case made out by the Petitioner that a licence was agreed to be granted on terms and conditions which are different from the terms and conditions incorporated in the agreement dated 22nd August 2005. There is no reason to disturb the findings of fact recorded by the authorities.
::: Downloaded on - 09/06/2013 15:54:49 ::: 1617A. Now turning to the facts of Writ Petition number 2832 of 2009, the Petitioner filed a suit for declaration in the year 2007 against the first and second Respondents. In the said suit are Petitioner stated that the suit premises was owned by the second Respondent. In the plaint it is admitted that the second Respondent sold the suit premises to the first Respondent. It is alleged that though the Petitioner had given an offer to purchase the suit premises, the second Respondent sold the suit premises to the first Respondent behind the back of the Petitioner. The specific averment in the plaint is that though agreements of leave and licence were executed in the year 2003, 2005 and 2006, the second Respondent had agreed to grant tenancy in respect of the suit premises to the Petitioner.
There is a specific averment that the Petitioner tendered rent in respect of the suit premises to the first Respondent till the end of April of the year 2007. Thus the case made out by the Petitioner in his own suit is that the first Respondent by virtue of purchase of the suit premises became the owner and landlord of the suit premises.
18. In the application for eviction filed by the 1st Respondent under section 24 of the said Act of 1999 it was stated that the second Respondent was being made as the second opponent on the ground that he was out of town and that he was not available for signing the application.
It must be stated that in the said application under section 24 it was stated that the second Respondent had executed a document dated the 9 th May 2007 authorising the said first Respondent to file the application for ::: Downloaded on - 09/06/2013 15:54:49 ::: 17 eviction on his behalf. The second Respondent deposed in the said application by filing his affidavit in lieu of examination in chief in which he proved the said writing dated 9th May 2007. In paragraph 1 of the affidavit in lieu of examination in chief, the second Respondent stated that he had instructed and authorised the first Respondent to file the application for eviction. There is no cross-examination made of the second Respondent on his statement that he had authorised the first Respondent to file the application for eviction under section 24 of the said Act of 1999. Thus, the application for eviction was filed by the first Respondent for herself and on behalf of the second Respondent. The second Respondent deposed to that effect before the Competent Authority. Only a technical formality of transposing the second Respondent as a co-applicant in the application for eviction was not complied with. Therefore, the technical objection raised by the learned counsel appearing for the Petitioner that the first Respondent is not a "landlord" for the purposes of an application under section 24 of the said Act does not arise in as much as for all purposes the application for eviction will have to be treated as filed by the second Respondent. In fact it was filed on behalf of the 2nd Respondent. As stated earlier, the Petitioner has not disputed the fact that the second Respondent sold the suit premises to the first Respondent. In fact the specific case of the Petitioner is that he was paying rent to the first Respondent. As far as execution of leave and licence agreements are concerned, in the affidavit in lieu of examination in chief, the Petitioner himself stated that though the suit premises was agreed to be let out, as the second Respondent insisted, successive illegal licence ::: Downloaded on - 09/06/2013 15:54:49 ::: 18 agreements were executed. The Petitioner has specifically referred to leave and licence agreement dated 25th April 2006. It must be noted here that the last agreement of leave and licence on which application for eviction is based is the said agreement dated 25th of April 2006. The execution of the said agreement has been admitted by the Petitioner on oath. The Petitioner has not disputed the status of the first Respondent as the owner of the suit premises on the basis of the document dated 23rd of February 2007 executed by the second Respondent and the first Respondent.
18A.
On the basis of clause (b )of explanation to section 24 of the said Act of 1999, the Competent Autority held that the agreement of leave and licence was a conclusive evidence of the facts stated therein and therefore, the relationship between the Petitioner and the first Respondent was that of licensee and licenceor. The Revisional authority confirmed the findings of the Competent Autority.
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 both the petitions is regarding the effect of non-registration 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:
"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 ::: Downloaded on - 09/06/2013 15:54:49 ::: 19 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 Autority, and, the Competent Autority, 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 Autority 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 Autority 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-in- interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein."
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 versus Parvez Bhesania (1997[1] Maharashtra law journal 295), this Court interpreted the said clause. In paragraph 8 and 9 , this Court ::: Downloaded on - 09/06/2013 15:54:49 ::: 20 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 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 and others' 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 Autority 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 ::: Downloaded on - 09/06/2013 15:54:49 ::: 21 parties of the facts stated therein. The Competent Autority 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:
"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 ( XVI of 1908 ).
(2) The responsbility 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 ::: Downloaded on - 09/06/2013 15:54:49 ::: 22 thousand or with both."
In the case of Raj Prasanna (supra), while dealing with sub-section 2 of 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 55 of the said Act, since sub-section (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 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 sub-section (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.
15. The contention of the learned Advocate for the Petitioner that ::: Downloaded on - 09/06/2013 15:54:49 ::: 23 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 Autority to entertain the application under section 24 of the said Act, cannot be accepted. The jurisdictional fact which is required for the Competent Autority 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 Autority, it will empower the Competent Autority 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......."
(emphasis added) 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 ::: Downloaded on - 09/06/2013 15:54:49 ::: 24 here that a special remedy for eviction of licensees under section 24 of the said Act is available only to premises given on licence for residential use.
Section 55 is applicable not only to licence which is covered by section 24 but also to the licence granted in respect of premises for a use other than residential. The effect of sub-section 2 of section 55 is that in case of licence granted for non-residential use, if the agreement is not registered, it will be open for the opponent licensee to contend that the terms and conditions of the licence agreed between the parties were different from 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 ::: Downloaded on - 09/06/2013 15:54:49 ::: 25 Act , while providing for consequences of non-registration, the legislature has not chosen to provide for drastic consequences as provided under section 49 of the said Act of 1908. Therefore, non-registration of a document required to be registered under section 55 of the said Act attracts limited consequences provided under sub-section 2 thereof apart from prosecution under sub-section 3. An unregistered document which requires registration under section 55 of the said Act can be read in evidence provided the same is proved and the same is otherwise admissible in evidence. Section 49 of the said Act of 1908 will not be applicable to such document which is required to be registered under section 55 of the said Act. Therefore, a document which requires registration under section 55 of the said Act does not become an invalid document. The presumption under clause (b) of explanation to section 24 of the said 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 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.
21. Based on a decision of the Apex Court in the case of Hameedia Hardware (supra), the learned counsel appearing for the Petitioner submit-
::: Downloaded on - 09/06/2013 15:54:49 ::: 26ted that the word "registered" will have to be read in clause (b) of explana-
tion to section 24 of the said Act. He relied upon a decision of Lord Denning which is quoted with approval in the aforesaid decision of the Apex Court.
What is relied upon by Apex Court reads thus:
"11. In Seaford Court Estates Ltd. v. Asher10 Lord Denning, L.J. said:
"[W]hen a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give 'force and life' to the intention of the legis- lature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
However, in paragraph 10 of the same decision, the Apex Court held that:
"It is no doubt true that the court while construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful."
21A In the case of Shiv Shakti Coop. Housing Society v. Swaraj Developers[(2003) 6 SCC 659], the Apex Court held thus:
"19. It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a stat- ute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature en- acting it. (See Institute of Chartered Accountants of India v. Price Water- house8.) The intention of the legislature is primarily to be gathered ::: Downloaded on - 09/06/2013 15:54:49 ::: 27 from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a con- sequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as mean- ingless has to be avoided. As observed in Crawford v. Spooner9 courts cannot aid the legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel10.) It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd.11] Rules of interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn, L.C. in Vickers Sons and Maxim Ltd. v. Evans12, quoted in Jumma Masjid v. Kodimaniandra Deviah13.) (emphasis added) In the present case, what is provided in section 24 and section 55 is clear, plain and unambiguous. Therefore, it is not open to read the word "registered" in clause (b) of explanation to section 24. Hence, the said argument of the learned counsel appearing for the Petitioner will have to the rejected.
22. In view of the aforesaid discussion, there is no merit in the petitions. Conclusive presumption under clause (b) of explanation to section 24 is attracted in both the cases. Therefore, the petitions must fail and I pass the following order:
(1)The writ petitions are rejected with no orders as to costs.
(2)Mentioned latter on.::: Downloaded on - 09/06/2013 15:54:49 ::: 28
(3)On the prayer made by the learned counsel for the Petitioner in both the petitions, the order of eviction shall not be executed till 3rd August 2010. If any amount is deposited by the Petitioners before Competent Authority, the said Authority will permit the Applicant in the Application under Section 24 of the Maharashtra Rent Control Act, 1999 to withdraw the said amount.
Till 3rd August 2010, the Petitioner shall not create any third party interests in respect of the suit premises and shall not part with possession thereof.
(A.S.OKA, J) ::: Downloaded on - 09/06/2013 15:54:49 :::