1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3496 OF 2009 Raju Sada Karde .. Petitioner versus Raghevendra Sharma & Ors. .. Respondents Mr.A.Garge, advocate appointed to espouse the cause of the petitioner. Mr.R.S.Kolnoorkar for the respondent No.1. CORAM : A.S.OKA, J. DATE : 2nd September 2009. ORAL JUDGMENT: . The petitioner appeared in person. Mr.Garge, learned counsel was requested by the Court to appear for espousing the cause of the petitioner appearing in person. Accordingly, Mr.Garge has appeared and has argued the petition. The respondents filed an application under section 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said Act) before the competent authority. According to the case of the 1st respondent, a Leave and Licence Agreement dated 4th September 2003 was executed by the 1st respondent in favour of the petitioner in respect of residential flat being flat No.A-204 at Laxmi Tower, Valdhuni Road, Kalyan Taluka and District Thane. As per the conditions of the registered Leave and Licence Agreement, the petitioner paid a sum of Rs.30,000/- as a security deposit. The petitioner was to pay Rs.2,000/- per month as licence fee. He also 2 agreed to pay a sum of Rs.500/- towards maintenance charges payable to the society. The licence period was to expire on 31st July 2004. According to the case of the 1st respondent, the petitioner committed default in payment of licence fee, maintenance charges and electricity charges and he failed to vacate after the licence period expired. The case of the 1st respondent is that he was entitled to adjust security deposit of Rs.30,000/- towards the licence fee. It is stated in the application by the 1st respondent that a cheque dated 28th February 2005 in the sum of Rs.25,000/- was issued by the petitioner to the 1st respondent. The said cheque was dishonoured and thereafter a complaint under section 138 of the Negotiable Instruments Act, 1881 was filed by the 1st respondent. After issuing notice through an advocate, the application for eviction was filed in which the prayer was for payment of arrears of licence fee, maintenance charges of Rs.13,500/- and outstanding electricity bill in the sum of Rs.15,000/-. A prayer was also made for compensation at the rate of Rs.200/- per day from 1st August 2004. 2. The application was contested by the petitioner by filing his reply as he was granted leave to defend. His contention is that he had paid the licence fee regularly. His contention is that the cheque in the sum of Rs. 25,000/- relied upon by the 1st respondent was given by him by way of security and it was a blank cheque. It was contended by the petitioner that he has directly paid house tax in respect of licenced premises to the Municipal Corporation. It was submitted that the relationship between the 3 petitioner and the 1st respondent was that of a tenant and landlord. The competent authority passed an order of eviction. The competent authority did not grant the mandatory relief as sought by the 1st respondent but directed the petitioner to pay damages to the 1st respondent licensor at the rate of Rs.5,000/- per month from 1st August 2004 till the date of handing over of the possession. The said order was passed in terms of sub-section 2 of section 24 of the said Act. The competent authority directed the petitioner to pay agreed compensation and monthly charges totally amounting to Rs. 2,500/- per month for the licence period. A Revision application preferred by the petitioner before the Additional Commissioner was dismissed. 3. The learned counsel appearing for the petitioner pointed out that the alleged Leave and Licence Agreement expired by efflux of time on 31st July 2004 but the application for eviction was filed nearly one year and five months thereafter on 15th December 2005. He pointed out that after expiry of period of licence, the 1st respondent accepted a cheque in the sum of Rs. 25,000/- which according to the case of the 1st respondent was dated 28th February 2005. He submitted that very fact that the cheque was accepted by the 1st respondent shows that after expiry of licence period, there was an oral agreement between parties under which the suit premises were let out to the petitioner. He invited my attention to the cross-examination of the 1st respondent in which the 1st respondent stated that a cheque in the sum of Rs.25,000/- was accepted by him in February 2005 as the petitioner asked 4 him to accept the cheque by way of security. He submitted that this itself shows that there was a transaction between the parties after the expiry of licence period. He pointed out that as far as real nature of subsequent transaction is concerned, the burden of proof was on the 1st respondent licensor in view of sub-section 2 of section 55 of the said Act. He submitted that both, the Revisional Authority and Competent Authority have committed an error by putting the burden of proving the subsequent agreement of tenancy on the petitioner. He submitted that unless contrary was proved by the 1st respondent, the case made out by the petitioner of subsequent agreement of tenancy ought to have been accepted. After Mr.Garge addressed the Court, the petitioner pointed out that he has paid taxes in respect of the suit premises to the Municipal Authorities and receipts were produced in revision. He submitted that he has paid the monthly maintenance charges to the Society. The learned counsel appearing for the 1st respondent supported the impugned judgment and order. 4. I have given careful consideration to the submissions. The agreement of Leave and Licence executed on 4th September 2003 has been duly registered. The agreement is of Leave and Licence which records that the petitioner was granted licence to use and occupy the suit premises till 31st July 2004. The explanation (b) to sub-section 3 of the section 24 of the Act provides that an agreement of Leave and Licence in writing shall be conclusive evidence of the facts stated therein. In view of the said provision, 5 it will not be open to the petitioner to raise any contention to contradict what is stated in the said agreement. 5. The case of the petitioner appears to be that after expiry of licence period there was an oral agreement under which the suit premises was let out by the 1st respondent in his favour. It must be stated here that there is a finding recorded by the competent authority that neither in the pleadings nor in the evidence the petitioner has given any details of the alleged oral agreement such as date, time and place of oral agreement. This aspect has been noted even by the Revisional Authority. Even in the cross-examination of the 1st respondent only a bald suggestion was given that after expiry of licence period there was an oral agreement of tenancy. The date, the time and terms and conditions of the alleged oral agreement were not put to the 1st respondent in the cross-examination. In short, the contention of oral agreement is devoid of any material particulars and it is merely a bald allegation. A submission was made by Mr.Garge that the burden was not on the petitioner to prove the said agreement in view of sub-section 2 of section 55 of the said Act. Sub-section 1 and sub-section 2 of section 55 read 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 responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered 6 agreement, the contention of hte 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.” Sub-section 2 provides for consequence of the Agreement of Leave and Licence not being registered by the licensor. Sub-section 2 provides that in absence of any registered written agreement, the competent authority will have to accept the contention of the licensee regarding the terms and conditions subject to which premises were given to him by the licensor, unless the contrary is proved. Therefore, sub-section 2 of section 55 has no application as in the present case the Leave and Licence Agreement has been admittedly registered. As stated earlier, the statute makes the said agreement a conclusive evidence of the transaction stated therein. Therefore, the entry of the petitioner in the suit premises was as a licensee and the burden was certainly on the petitioner to prove the subsequent agreement of tenancy. As stated earlier, the authorities have found that no particulars such as date, time and terms and conditions of the alleged oral agreement have been pleaded by the petitioner. 6. It is pertinent to note that though a prayer was made before the competent authority by the 1st respondent in that behalf, the competent authority has not granted relief in favour of the 1st respondent as regards outstanding electricity bill and compensation at the rate of Rs.200/- per day. The competent authority has directed the petitioner to pay the damages at 7 double the rate of licence fee after expiry of period of licence which is in terms of sub-section 2 of section 24 of the said Act. Apart from this, for the licence period, the petitioner has been directed to pay the agreed licence fee and maintenance charges of Rs.2,500/-. It must be stated here that the learned counsel appearing for the 1st respondent stated that the 1st respondent will adjust the security deposit of Rs.30,000/- against the amounts payable by the petitioner under order dated 9th October 2007 passed by the competent authority. The said statement is accepted. 7. Subject to what is stated above, there is no scope to interfere with the impugned order in extra-ordinary jurisdiction under Article 227 of the Constitution of India. The Leave and Licence Agreement has been duly proved and the petitioner has failed to prove the alleged oral agreement of tenancy allegedly executed after expiry of licence period. 8. Before parting with the judgment, appreciation will have to be recorded for the services rendered by Mr.Garge who has appeared to espouse the cause of the petitioner. 9. Writ petition is rejected. A sum of Rs.30,000/- which is the security deposit lying with the 1st respondent will be adjusted against the amount payable by the petitioner under order dated 9th October 2007. 8 10. At this stage, the petitioner appearing in person prays for continuation of ad-interim relief as he wants to approach the higher Court. The said prayer is opposed by the learned counsel appearing for the 1st respondent. Ad-interim relief granted on 26th March 2009 will continue to operate for a period of 10 weeks from today subject to condition that the petitioner will not part with possession of the suit premises. (A.S.OKA,J)