ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 1345 OF 2010 Shri Arvind Hukkeri ... Petitioner Vs Shri Prabhakar Vithal Gothaskar. .. Respondent -- Shri Kishor Patil for the Petitioner. Shri Sandesh G. Deshpande for the Respondent. -- CORAM : A.S. OKA, J DATED : 16TH APRIL, 2010 ORAL JUDGMENT : The submissions of the learned counsel appearing for the parties were heard on the earlier date. 2. The Writ Petition arises out of an application filed by the Respondent under Section 24 of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as the said Act of 1999). According to the case of the Respondent, a leave and licence was granted to the Petitioner to use and occupy the suit flat. It is stated that initially leave and licence was granted for a period between June, 2007 to April, 2008. Subsequently, a fresh leave and licence agreement dated 27th June, 2008 was executed by and between the parties which has been duly registered. Reliance has been placed on the earlier agreement as well as the said agreement. It is contended that the licence granted to the Petitioner was to expire on 31st March, 2009. However, by a notice dated 5th February, 2009, the agreement of leave and licence was purportedly terminated by the Respondent. As the possession was not handed over, the application under Section 24 of the said Act of 1999 was filed by the Respondent. An application for leave to defend the suit was made by the Petitioner. Various contentions have been raised in the said application. It is submitted that in the agreement dated 27th June, 2008, a specific clause was provided that the licence was renewable at the option of the parties on mutual agreement. It is alleged that the said clause has been deleted from the agreement after its registration. It is alleged that an attempt was made by the Respondent to forcibly dispossess the Petitioner. It is stated that with the consent of the Respondent, the Petitioner has carried out renovation to the suit flat by spending a sum of Rs.2,31,000/-. The Competent Authority passed an order of eviction. The Competent Authority directed that the Petitioner to pay arrears of compensation at the agreed rate of Rs.21,000/- upto 31st March, 2009. From 1st April, 2009, the Petitioner has to pay damages at the rate of Rs.42,000/- per month till the delivery of possession. 3. The learned counsel appearing for the Petitioner submitted that it was agreed between the parties that the suit premises would be leased out to the Petitioner for a period of 4 to 5 years. He has pointed out that a sum of Rs. 2,31,000/- was spent by the Petitioner on carrying out repairs. He has invited my attention to the leave and licence agreement. He pointed out that the recital regarding renewal of the leave and licence agreement was illegally struck out by the Respondent. He pointed out that apart from the spending a sum of Rs. 2,31,000/-, the Petitioner has paid the sum of Rs.1,00,000/- to the Respondent by way of deposit. He pointed out that the original leave and licence agreement was renewed by the subsequent agreement dated 27th June, 2008 in which a specific recital was typed that the agreement was renewable at the option of the Petitioner and the Respondent. He submitted that the said portion has been struck out without the consent of the Petitioner. He submitted that this was a case where leave to defend was required to be granted. Moreover, no case was made out for passing an order of eviction. He submitted that the order of eviction is illegal. 4. The learned counsel appearing for the Respondent supported the impugned judgment and order. He has tendered on record an affidavit of the Respondent dated 7th April, 2010. In Paragraph 3 of the said affidavit, the Respondent has stated thus:- “I say that, I am ready to adjust the sum of Rs.2,31,000/- which is allegedly spent by the Petitioner for the repairs and Civil Work plus I am ready and willing to refund the sum of Rs. 1,00,000/- which is deposited by the Petitioner towards the security deposit. I say that out of the total amount due and payable by the Petitioner to me, I am ready to adjust the sum of Rs.3,31,000/-.” 5. I have carefully considered the submissions. There is no dispute between the parties that a leave and licence agreement dated 27th June, 2008 was executed by and between the parties and the same has been duly registered. A special provision in the form of Section 24 of the said Act of 1999 has been enacted so as to enable the landlord to recover the possession of the suit premises on the expiry of licence. Explanation (b) to Sub-section (3) of Section 24 of the said Act of 1999 provides that an agreement of licence shall be conclusive evidence of the facts stated therein. Thus, it cannot be disputed that the Petitioner was inducted in the suit flat as a licensee. 6. The leave and licence agreement was executed on 27th June, 2008. The Respondent has alleged that the Petitioner did not make payment of compensation/licence fee from the month of February, 2008 and, therefore, by a letter dated 5th February, 2009 the Respondent has purported to revoke the licence. The notice was returned as “not claimed”. The application for eviction was filed on 9th June, 2009. In the application for leave to defend, for the first time the Respondent came out with a case that the clause relating to the renewal of licence has been unauthorizedly deleted. No such grievance was made at any stage by the Petitioner prior to filing of the application for leave to defend. In the leave and licence agreement which is admittedly executed between the parties, there is a clause which permits the Respondent to revoke the licence in the event the Petitioner commits any default in payment of compensation. 7. In the application for eviction, a specific case is made out that since the Petitioner has committed the default from February, 2008, a notice of revocation was issued on 5th February, 2009. The said averment is found in paragraph 3 of the application for eviction. In the application for leave to defend the suit, the Petitioner has dealt with the averments made in Paragraph 3. In the said Paragraph 3, it is specifically admitted that the Petitioner stopped paying the monthly compensation from April, 2008 as he had incurred expenses of Rs. 2,31,000/- on repairs. There is no dispute regarding the notice dated 5th February, 2009 issued by the Respondent. Thus, this was a case where revocation clause was invoked by the Respondent by issuing the notice. Therefore, the submission that the agreement earlier contained renewal clause is of no consequence. In any event, the contention regarding the alleged unauthorized deletion of the clause has been raised belatedly. Moreover, when the application for eviction was filed, the period of licence provided in the Agreement had already expired. 8. In view of the admitted execution of the leave and licence agreement which is duly registered and in view of the clause (b) of the Explanation to Section 24 of the said Act of 1999, no case for interference is made out in writ jurisdiction under Article 227 of the Constitution of India. The Agreement is the conclusive evidence of the fact that a licence was granted to the Petitioner to occupy the suit flat. However, in view of the aforesaid affidavit of the Respondent, the Petitioner is entitled to adjust a sum of Rs.3,31,000/- towards compensation payable under the impugned order of the Competent Authority. To that extent, modification of the impugned order will have to be made. 9. Hence, I pass the following order. (a) The order of eviction is confirmed. (b) Clauses (2) and (3) of the operative part of the order dated 8th February, 2009 passed by the Competent Authority are modified by directing that the Petitioner will be entitled to adjust the sum of Rs.3,31,000/- while complying with the directions contained in the said clause Nos.2 and 3. (c ) The Petition is disposed of in above terms with no orders as to costs. 9. At this stage, the prayer is made for continuation of the interim relief. The request is opposed by the learned counsel appearing for the Respondent. Ad-interim relief granted on1 7th February, 2010 will continue to operate for a period of six weeks from today. ( A.S. OKA, J )