Bombay High Court
Dinkar Keshav Deshmukh vs Vasantdada Sugar Institute on 16 August, 1996
Equivalent citations: (1997)99BOMLR138
Author: S.H. Kapadia
Bench: S.H. Kapadia
JUDGMENT
S.H. Kapadia, J
1. The short point involved in this Petition is: whether Section 13A(2) of the Bombay Rent Act as amended by Maharashtra Amending Act 18 of 1987 would apply retrospectively to those Leave and Licence Agreements entered into prior to October 1, 1987 when the Amending Act 18 of 1987 came into force.
2. The facts giving rise to the above dispute, briefly, are as follows:
3. The Respondent herein was put in possession of the suit premises on September 1, 1979. On March 20, 1980 the purported Leave and Licence Agreement came to be executed. The Agreement indicates the date of commencement as September 1, 1979. The tenor of the Agreement indicates that the Agreement was for 11 months and it expired on August 31, 1980. On August 31, 1980, the Respondent did not vacate the premises. On February 7, 1992 the Respondent herein instituted a Declaratory Suit under Section 28 of the Bombay Rent Act inter alia alleging that the Agreement of Leave and Licence dated March 20, 1980 was, in substance, a Tenancy Agreement. In the above suit, the Respondent claimed protection of the Bombay Rent Act. The writ of summons in the above Declaratory Suit came to be served on the Petitioner on April 6, 1992.
4. On 3rd June, 1992, as a counterblast, the Petitioner herein preferred Misc. Application No. 20 of 1992 for possession under Section 13A(2) of the Bombay Rent Act inter alia alleging that Leave and Licence Agreement was entered into on March 20, 1980; that the said Agreement expired after 11 months on August 31, 1980 because the Agreement commenced from September 1, 1979; that on October 15, 1991 the Licensor terminated the Agreement and called upon the Licensee to vacate the premises in terms of the Agreement which he failed to do and in the circumstances the above Misc. Application No. 20 of 1992 came to be filed on June 3, 1992.
5. By the impugned Order the Competent Authority dismissed the said Application on the ground that Maharashtra Amending Act 18 of 1987 was not retrospective in nature and, therefore, Misc. Application No. 20 of 1992 was not maintainable. Being aggrieved by the said Order of the Competent Authority dismissing the Misc. Application No. 20 of 1992, the Licensor has filed the present Writ Petition.
6. Mr. Dalvi the learned Counsel appearing on behalf of the petitioner contended that although the Leave and Licence Agreement was executed on March 20, 1980 the cause of action arose on October 15, 1991 when the Licensee did not vacate the premises despite being called upon to do so. Mr. Dalvi contended that the Amending Act 18 of 1987 came into force from October 1, 1987. However, since the licence continued and was not terminated till October 15, 1991 the Licensor was entitled to move Misc. Application No. 20 of 1992. Mr. Dalvi contended that in view of the provisions of Section 13A(2), Sections 31H and 31I, all disputes between Licensor and Licensee were maintainable exclusively before the Competent Authority after October 1, 1987. Mr. Dalvi placed heavy reliance on the provisions of Section 31H and he contended that under Sub-section (2) of Section 31H of the Bombay Rent Act, it is expressly provided that any landlord seeking to evict the tenant on the ground specified in Section 13A(1), may, if he has proceeded against the tenant in a suit or in a proceeding in the Court, shall withdraw the suit or proceeding in relation to the claim made therein with the leave of the Court and, thereafter, proceed against the tenant in accordance with the provisions of Part IIA of the Bombay Rent Act. At this stage, it may be mentioned that Sections 31H and 31I are also introduced into Part IIA which, in turn, is introduced by Maharashtra Amending Act 18 of 1987. Mr. Dalvi contended that under Section 31I, no Civil Court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under the Rent Act to decide. Mr. Dalvi accordingly contended that in the present case, the said Misc. Application No. 20 of 1992 was, therefore, maintainable before the Competent Authority.
7. Mr. Pitre the learned Counsel appearing on behalf of the Licensee on the other hand contended that Misc. Application No. 20 of 1992 was instituted as a counterblast because the licensee had filed a Declaratory Suit seeking protection of the Bombay Rent Act prior to the present Misc. Application No. 20 of 1992. Mr. Pitre further contended that Maharashtra Amending Act 18 of 1987 is not retrospective. Mr. Pitre placed heavy reliance on the Judgment of the learned Single Judge of this Court in the case of Ravindranath H. Hiremath (Lt. Col) v. Prashantkumar Buttani 1994 Mh.L.J. 1731, Mr. Pitre further contended that Part IIA contemplates summary procedure for trial of the Applications before the Competent Authority. Mr. Pitre contended that, in fact, under Section 31E Special procedure for disposal of Applications is laid down under which the Licensee is required to obtain permission and leave of the Competent Authority before filing the Written Statement to defend the action [Sec Section 31E(4)]. Mr. Pitre further contended that under Section 13A(2), a Licensee who does nor. deliver possession of the premises to the landlord on the expiry of the period of licence and who continues to be in possession till he is dispossessed shall be liable to pay damages at double the rate of the licence fee. Similarly, Mr. Pitre drew my attention to Section 13A(2) Sub-clause (3) which states that 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. Mr. Pitre drew my attention to Explanation (b) under which it is laid down that the Agreement of Leave and Licence in writing shall be conclusive evidence of the fact stated therein. Mr. Pitre, therefore, contended that the entire Scheme introduced by Maharashtra Amending Act 18 of 1987 constitutes a separate Code by itself. Mr. Pitre further contended that in view of the Judgment of the learned Single Judge in Ravindranath's case (supra), it is clear that if the licence has expired prior to October 1, 1987 or in respect of which any proceedings are pending in the Court then Section 13A(2) is not applicable (See para 10 of the said Judgment). I find merit in the contention advanced by Mr. Pitre the learned Counsel appearing on behalf of the licensee. Section 13A(2) applies to a Licensor-landlord who is the owner of the Flat. Section 13A(2) is restricted to premises given on licence for residence only. The said section does not apply to premises given on licence for non-residential purposes. At this stage, it may be mentioned that there is a dispute between the parties as to whether the premises are given for residential purpose or not. But that question is not necessary for deciding the present dispute in this Petition. The conditions to attract Section 13A(2) are as under:
(i) The Licensor should be the owner of the Flat.
(ii) The premises must have been given on licence.
(iii) Period of Licence should have expired.
(iv) The Licensed Agreement may be in writing or oral.
Section 13A(2) starts with a non obstante clause. For the purposes of deciding the present controversy, to my mind, the most important aspect of this case is that the jurisdictional fact which gives power to the Competent Authority to decide the matter is that the licence should have expired. In the present case, the licence stood expired in 1980 i.e. much prior to October 1, 1987. In paragraph 5 of the Application No. 20 of 1992 the Licensor-Petitioner has conceded that the cause of action arose initially in 1980 when the licence expired. This aspect is also important because the terms and conditions embodied in the Agreement are made conclusive. In other words, when the Amending Act came into force the licence had come to an end even on the basis of the tenor of the said Agreement. It is true that in paragraph 5 of the Application, it is contended that further cause of action arose on October 15, 1991 when notice was given by the Licensor to the Licensee to vacate the premises. But that, to my mind, is only a plea taken up in order to bring the present dispute under Section 13A(2). Applying the ratio of the Judgment of the learned Single Judge in Ravindranath 's case, it is clear that Maharashtra Amending Act 18 of 1987 cannot be read retrospective to cases where a licence was created prior to October 1, 1987 arid the said licence stood terminated prior to October 1, 1987 or in respect of which proceedings are pending in the Court. To such cases Section 13A(2) will not apply (See paragraph 10 of the said Judgment). Even giving harmonious construction to the provisions of Sections 13A(2), 31E, 31H, 31I, it is clear that Maharashtra Amending Act 18 of 1987 cannot apply to licences which stood terminated by efflux of time prior to October 1, 1987. It needs to be clarified that if the licence expired after October 1, 1987 as in the case of Ravindranath H, Hiremath (supra) then Section 13A(2) stands attracted. Further, in the present case, I am not inclined to accept the contention advanced on behalf of the Petitioner that in view of Section 31H(2) the landlord can seek to recover possession by withdrawing the Suit against the tenant with the leave of the Court and thereafter proceed against the tenant under Part IIA of the Act. A bare reading of Section 31H indicates that it does not apply to Proceedings under Section 13A(2) but it applies only to provisions of Section 13A(1). Lastly, it may be mentioned that if the contention of the Petitioner is accepted it would lead to anomaly. Large number of Declaratory Suits are filed in the Small Causes Court prior to October 1, 1987. Similarly, suits are also filed for possession prior to October 1, 1987 under Presidency Small Causes Court Act in which dispute between Licensor and Licensee arises. If the argument of the learned Counsel for the petitioner is accepted, it would mean that all those suits will stand abated or in those suits the Licensor will withdraw the suits with the permission and thereafter once again apply to the Competent Authority, this was never intended by the Amending Act 18 of 1987. Further, it may be mentioned that even in Dalal's Rent Act (Fifth Edition) at page 662, the learned Author after construing various provisions referred to above has observed that in respect of licences which have expired prior to October 1, 1987 and prior suit or proceedings are pending then the same are not intended to be transferred to the Competent Authority.
8. In the circumstances, I do not find any merit in the Writ Petition. Writ Petition fails. Rule is discharged with no order as to costs.