- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3151 OF 2004 Raj Prasanna Kondur, ) aged about 31 years, ) Occupation - Business, residing at ) Park View, Ground Floor, 129, ) Carter Road, Bandra (W), ) Mumbai - 400 050. ). Petitioner (Org.Respondent) Versus 1. Mr.Arif Taher Khan, ) aged 71 years, ) Occupation - Business, ) 2. Mrs.Ruquaiya Begum, ) aged 92 years, Occupation - ) Housewife, both of them ) residing at 1st Floor, ) Park View, 129, Mumbai 400 050. ) 3. State of Maharashtra, ) through Government Pleader, ) High Court, Bombay. )..Respondents (Org.Applicants) -- Shri H.M.Jagtiani i/b Haresh Jagtiani & Associates for the petitioner. Shri R.A.Thorat for the respondents. -- CORAM : R.M.S.KHANDEPARKAR, J DATED : 23RD DECEMBER, 2004. - 2 - JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned advocates for the petitioner and the respondents. Perused the records. Rule. By consent, the rule is made returnable forthwith. 2. The petitioner challenges the order passed by the Additional Commissioner, Konkan Division, on 21st March, 2004 rejecting the revision application filed by the petitioner against the order dated 12th November, 2003 passed by the competent authority at Mumbai rejecting the Application No.19 of 2003 which was filed by the petitioner for setting aside the ex parte order of eviction of the petitioner from the suit premises. 3. The respondent Nos.1 and 2 are the owners of the suit premises situated at Park View, 129 Carter Road, Bandra (West), Mumbai. The suit premises were permitted to be occupied and used by the petitioner for residential purposes since 1st April, 2001 and the agreement in that regard was executed by the parties on 3rd April, 2001. The said agreement was for a period of 11 months with an option to the petitioner to extend the said agreement for three further periods - 3 - of 11 months each, subject to the license fee being increased by the petitioner after the second period of 11 months, and further that the petitioner as well as the respondents/owners were to have the right to terminate the agreement by giving a three months’ notice to each other. The said agreement was lodged for registration by the respondents on 31st December, 2002. A notice dated 13th January, 2003 came to be served upon the petitioner by the respondents asking him to vacate the premises on 1st February, 2003 or within three months of the notice as the respondents did not wish to renew the agreement any further. Since the petitioner did not vacate the premises, the respondents filed an application before the competent authority under Section 24 of the Maharashtra Rent Control Act, 1999, hereinafter called as "the said Act", for eviction of the petitioner from the suit premises and the summons came to be issued to the petitioner in respect of the said proceedings in accordance with the provisions of Section 43 of the said Act as well as by the registered post. However, the summons sent by the registered post was not collected by the petitioner though intimation in that regard by the postman was stated to have been given at the suit premises. The copy of the summons, however, was served on the servant of the petitioner on 5th - 4 - May, 2003. As the petitioner failed to appear and to seek leave to defend in the matter within 30 days from the date of the service of the summons, the competent authority passed the order dated 15th July, 2003 for eviction of the petitioner from the suit premises. On 13th October, 2003, the petitioner filed an application before the competent authority for setting aside the said ex parte order. After hearing the parties, the competent authority dismissed the said application by its order dated 12th November, 2003. The petitioner approached this Court with the Writ Petition No.8767 of 2003 which was subsequently withdrawn by the petitioner to approach the revisional authority under the said Act. The petitioner thereupon filed the revision application before the revisional authority under the said Act which, after hearing the parties, was dismissed by the impugned order dated 21st March, 2004. Hence the present petition. 4. While challenging the impugned order, the learned advocate for the petitioner has submitted that the authorities below ought to have considered that the entire proceedings before the authority were ab initio bad in law in the absence of valid and lawful agreement of leave and license between the parties, - 5 - and therefore, the ex parte order passed therein was also bad in law and failure on the part of the petitioner to seek leave to defend the proceedings could not have validated the illegal proceeding and the order passed therein by the competent authority, and therefore, the authorities below ought to have allowed the application filed by the petitioner. Drawing attention to Section 24 read with Section 55 of the said Act and further to the fact that the agreement in question was sought to be registered after 20 months of the execution of the agreement, it was contended that there was no valid registration of the agreement in terms of the provisions of Registration Act, 1908, and consequently, the agreement in question is not admissible in evidence, and therefore, no application under Section 24 of the said Act based on such invalid and inadmissible agreement could have been entertained by the competent authority, and therefore, the entire proceedings ought to have been dismissed being devoid of cause of action. It was also sought to be contended that there was no proper service of the summons of the proceedings as there was no compliance of the provisions of Section 43 of the said Act and being so, no fault could have been found with the petitioner approaching the competent authority on 13th October, - 6 - 2003 for setting aside the ex parte order, subsequent to his arrival in the town after his business tour. Referring to Section 55 of the said Act, it was sought to be argued that in the absence of registration of the agreement of leave and license, the contention of the licensee about the terms and conditions subject to which the premises were allowed to be occupied would prevail in any proceeding under Section 24 of the said Act, and therefore the authority below could not have given any credence to the contention of the respondents in relation to the terms and conditions of the leave and license agreement, once it was apparent that the agreement was not registered in accordance with the provisions of law, and therefore inadmissible and hence could not have been looked into. Reliance is sought to be placed in the decisions of the Punjab High Court in the matter of Ram Singh Sant Ram v. Ram Singh Sant Ram v. Ram Singh Sant Ram v. Jasmer Singh Hardit Singh & Anr., Jasmer Singh Hardit Singh & Anr., Jasmer Singh Hardit Singh & Anr., reported in AIR 1963 Punjab 100, of the Patna High Court in Smt.Dil Kuer & Smt.Dil Kuer & Smt.Dil Kuer & Ors. v. Hari Chandar Prasad & Ors., Ors. v. Hari Chandar Prasad & Ors., Ors. v. Hari Chandar Prasad & Ors., reported in AIR 1976 Patna 193, as also of the Apex Court in the matter of Achutananda Baidya v. Prafullya Kumar Gayen Achutananda Baidya v. Prafullya Kumar Gayen Achutananda Baidya v. Prafullya Kumar Gayen & Ors., & Ors., & Ors., reported in (1997) 5 SCC 76. 5. The learned advocate appearing for the respondents, on the other hand, drawing attention to - 7 - the decision of the Apex Court in Prakash H. Jain v. Prakash H. Jain v. Prakash H. Jain v. Marie Fernandes (Ms), Marie Fernandes (Ms), Marie Fernandes (Ms), reported in (2003)8 SCC 431 submitted that quasi judicial authorities created under the Statute have to function within the parameters of the powers given to them and in the manner stipulated in such Statute, and considering the same no fault can be found with the impugned orders passed by the authorities below. Drawing attention to the fact of service of summons upon the servant of the petitioner and failure on the part of the petitioner to seek leave to defend the proceedings within 30 days as was otherwise required in terms of the provisions of Section 24 of the said Act, the learned advocate for the respondents submitted that the petitioner could not have been heard in defence by the competent authority without prior leave being obtained. Being so, the competent authority had no option than to reject the application for setting aside the ex parte order, and for the same reason, there is no jurisdictional error on the part of the revisional authority in passing the impugned order. 6. As already seen above, it is undisputed fact that the parties had executed the written agreement dated 3rd April, 2001 permitting the petitioner to occupy and use the suit premises on leave and license - 8 - basis. The said agreement was not registered within eight months but it was lodged for registration by the respondents on 31st December, 2002. The petitioner did not appear before the registering authority to admit the execution of the agreement. Undisputedly, a notice dated 13th January, 2003 was served upon the petitioner to vacate the premises latest within a period of three months and the said notice was duly received by the petitioner. Even though the summons in relation to the proceedings under Section 24 of the said Act were served upon the servant who was in occupation of the suit premises on 5th May, 2003, and the intimation regarding the summons through RPAD was given to him by the postman on 8th May, 2003, no steps were taken by the petitioner to seek leave to defend the proceedings by approaching the competent authority within a period of one month from the date of the service of the summons and consequently the order of eviction of the petitioner from the suit premises came to be passed on 15th July, 2003. 7. Section 24 of the said Act entitles the landlord to seek recovery of possession of the premises on the expiry of license period for which the premises were permitted to be occupied by the licensee. Sub-section (1) thereof provides that - 9 - notwithstanding anything contained in the said Act, a licensee in possession or occupation of the premises given to him on license for residence shall deliver possession of such premises to the landlord on expiry of period of license, and on failure of the licensee to deliver the possession of the premises, the landlord would be entitled to recover possession of such premises given on license, on the expiry of the period of license by making an application to the competent authority and the competent authority on being satisfied that the period of license has expired, could pass an order for eviction of the licensee. Sub- section (3) provides that the competent authority shall not entertain any claim of whatsoever nature from any other person who is not a licensee according to the agreement of license. Sub-clause (b) of the explanation clause to Section 24 of the said Act provides that the agreement for license in writing shall be conclusive evidence of the facts stated therein. 8. Section 24 of the said Act obviously entitles the landlord to seek eviction of the licensee on expiry of the period of license. The said provision merely relates to the right of the landlord to get back the possession of the premises from the person - 10 - whose license to occupy the premises granted to him has come to an end, either on account of expiry of the period of license or termination thereof. The provision of law comprised under Section 24 of the said Act by itself nowhere deals with the manner in which the license was required to be granted nor it prescribes any form or methodology for grant of license by the landlord. The said provision nowhere provides that the license has necessarily to be either in writing or that the agreement in that regard has necessarily to be a registered one. Being so, plain reading of Section 24, therefore, would reveal that moment the license granted to a party to occupy the premises has come to an end, the right of the landlord to get such person evicted from the premises arises and the competent authority thereupon is empowered to pass an order of eviction in case it is satisfied that the period of license has expired. The Section nowhere imposes any embargo over such right of the landlord on account of the agreement of license being not registered or even on account of such agreement being not in writing. 9. The term "License" has not been defined under the said Act. However, the term "Licensee" has been defined under Section 7(5) of the said Act. It - 11 - provides that the licensee in respect of any premises or any part thereof to mean a person who is in occupation of the premises or any such part thereof, as the case may be, under a subsisting agreement for licence given for a license fee or charge. It obviously discloses that moment a person enters into an agreement with another to occupy the premises under the control of another for a license fee or charge, it will constitute an agreement for license to occupy such premises. The definition of the term "Licensee" nowhere discloses the requirement of such agreement to be either in writing or that the same needs to be registered. Nonetheless, Section 55 of the said Act speaks of the requirement of registration of such agreement. What would be the effect of the provision regarding requirement of registration on the right of the landlord to seek eviction of the person whose license has come to an end or has been terminated by seeking relief under Section 24 and whether the competent authority is empowered to entertain such grievance from the landlord in the absence of registration of the agreement is the question for consideration. 10. Section 55 of the said Act deals with the subject of requirement of registration of the - 12 - agreement executed between the landlord and the licensee. Sub-section (1) thereof provides that notwithstanding anything contained in the said Act, any other law for the time being in force, any agreement for leave and license or letting of any premises, entered into between the landlord and the licensee, after the commencement of the said Act, shall be in writing and shall be registered under the Registration Act, 1908. The said Act received the assent from the President of India on 10th March, 2000 and the Notification regarding enforcement of the said Act was published in the Government Gazette on 10th March, 2000 declaring the enforcement of the said Act from the said date. Sub-section (2) of Section 55 provides that the responsibility of getting such agreement registered shall be upon the landlord and in the absence of the registered written agreement, the contention of the licensee about the terms and conditions subject to which a premises have been given to him by the landlord on leave and license or have been let to him, shall prevail, unless proved otherwise. Sub-section (3) provides that any landlord who contravenes the provisions of the said section shall, on conviction, be punished with imprisonment which may extend to three months or with fine not exceeding Rs.5,000/- or with both. - 13 - 11. Evidently, any agreement relating to the leave and license entered into between the landlord and the licensee on or after 10th March, 2000 is required to be in writing and further is to be registered under the provisions of law comprised under the Registration Act, 1908. The responsibility to get the agreement registered rests upon the landlord. In case the parties fail to register the agreement, there is a presumption in favour of the contention of the licensee in relation to the terms and conditions of the license, albeit it being a presumption, the same is rebuttable. However, contravention of the provision, i.e. failure on the part of the landlord to get the agreement registered, may invite prosecution which may result in punishment to the landlord in the form of fine of Rs.5,000/- or imprisonment to the extent of a period of three months or both. 12. Plain reading of Section 55(1) would disclose that since enforcement of the said Act, if any premises are allowed to be occupied on leave and license basis, then the agreement in respect of such license has necessarily to be drawn in writing and it should be registered under the Registration Act, 1908. - 14 - Sub-section (2) of Section 55 clarifies that it would be the responsibility of the landlord to get such agreement registered. Two consequences are enumerated under sub-sections (2) and (3) of Section 55, in case of failure to comply with the obligation of the landlord to register such agreement. Under sub-section (2), in the absence of registration of such agreement, the contention of the licensee regarding terms and conditions of the license would prevail unless proved otherwise. In other words, the contention regarding the terms and conditions by the licensee will have a presumptive value. Secondly, in terms of sub-section (3) of Section 55 of the said Act, the landlord will warrant penalty of punishment to the extent of three months’ imprisonment or fine not exceeding Rs.5,000/- or both. The said Act nowhere provides for any other consequences for failure on the part of the landlord to get the agreement drawn in writing or being registered. In other words, the said Act specifically provides only for two consequences on account of failure on the part of the landlord to get the agreement registered, as is otherwise required to be done under sub-section (2) of Section 55 of the said Act. The said failure on the part of the landlord to get the agreement registered, however, does not result in denying other rights - 15 - assured to the landlord under the said Act. Obviously, therefore, the right of the landlord under Section 24 of the said Act to get the person evicted from the premises on expiry of the license is not curtailed in any manner on account of absence of the agreement being in writing or registered. 13. It is also to be noted that the explanation clause (b) to Section 24 of the said Act specifically provides that "an agreement of licence in writing shall be conclusive evidence of the fact stated therein." This is in relation to the evidentiary value of the written agreement of licence. It nowhere prescribes that such an agreement is necessarily to be a registered one. Undoubtedly, the conclusiveness spoken of under the said clause is in relation to the facts stated in the written agreement, irrespective of the fact that the agreement is registered or not. 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 - 16 - 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 Sections 55(2) and 55(3) of the said Act relate to the consequences of failure on the part of - 17 - 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 in the absence of registered written agreement, nevertheless, once 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 the absence of registered written agreement would render the license to be invalid and therefore, it would result in the absence of jurisdictional fact to enable the competent authority to entertain the application under Section 24 of the said Act, cannot be accepted. The jurisdictional fact which is required for the competent authority to entertain the application for eviction under Section 24 of the said Act is the expiry of license for - 18 - residence in favour of the person occupying the premises and moment the same is disclosed based on whatever material placed before the competent authority, it will empower the competent authority 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. Undoubtedly, expiry of licence presupposes existence of licence prior to its expiry. However, the existence of licence does not depend upon its record in writing or registration thereof. It depends upon the availability of permission by the landlord to another person to use the landlord’s premises for consideration and moment those factors are established, the person using the premises would be the licencee within the meaning of the said expression under the said Act. Obviously, the written record in relation to the agreement of licence would be the conclusive proof about the terms of licence and in case of registration of such agreement would help the landlord to avoid the consequences stipulated under Section 55(2) and (3) of the said Act. This is apparent from the definition of the term "Licensee" under Section 7(5) of the said Act which nowhere requires the license granted to occupy the premises for license fee or charge to be - 19 - necessarily in writing or the agreement to have been registered. If the contention of the learned advocate for the petitioner is accepted, the provisions of sub-section (2) of Section 55 of the said Act as well as the clause (b) to the explanation of Section 24 would be rendered otiose. No provision of law can be interpreted to nullify the effect thereof or to render the provision to be nugatory. 16. Undoubtedly, as submitted by the learned advocate for the petitioner, the Item No.6 of the Concurrent List of the Seventh Schedule of the Constitution of India deals with the subject of transfer