SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4737 OF 2008 Rahul Kumar Agrawal ...Petitioner Versus Sameer Suresh Gupta ...Respondent ...... Mr.A.C.Dharmadhikari for Petitioner. Mr.Madhav Jamdar for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Jamdar waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of : 2 : the Constitution of India takes exception to the Judgment and Order dated 7th May 2008 passed by the Competent Authority, Pune below Exhibit 29 in Application No.21 of 2007. The said Application No.21 of 2007 is filed by the Respondent praying for possession of the suit premises by invoking the provisions of Section 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as ‘the Act’). The Petitioner who is in occupation of the suit premises filed Application Exhibit 29 praying that preliminary issue of jurisdiction of the Authority to try, decide and entertain the subject application be framed and be decided appropriately. The Competent Authority by the impugned Judgment has opined that although issue of jurisdiction may arise for consideration, however, that can be decided along with all other issues as it may involve mix question of fact and law. This opinion recorded by the Competent Authority is subject matter of challenge in the present Writ Petition. 5. After having considered the rival submissions, I have no hesitation in taking the view that the Competent Authority misdirected : 3 : itself in not acceding to the request of the Petitioner in the fact situation of the present case. The Application filed before the Competent Authority by the Respondent proceeds on the assertion that the Petitioner was in need of premises for the "residential" purpose and had approached the Respondent and requested the Respondent to allow him to use the suit premises on Leave and Licence basis for a period of thirty-three months commencing from 1st July 2003 to 31st March 2006. In Paragraph 3 of the original Application, the Respondent has asserted that the Petitioner executed an Agreement of Leave and Licence to that effect on 30th July 2003. The factum of execution of agreement of Leave and Licence is common ground. 6. Indeed, in the original application, the Respondent has asserted that the Petitioner had approached the Respondent and requested for letting out the premises for residential purpose. However, there is no clear assertion in the application of the fact that the Respondent let out the suit premises for "residential purpose only". As the : 4 : Respondent has relied on the agreement of the Leave and License which is referred to in paragraph 3 of the original application, therefore, the said agreement would become integral part of the original application. For that reason, we will have to advert to the contents of the agreement. The recital of the agreement clearly records that the licensee had approached the licensor with request to permit him/her to use and occupy the suit premises with its fixtures and fittings on Leave and License basis for "residence and/or non-residence occupation" for the use of the licensee for a period of 33 months. In clause 7(f) it is restated that the licensee shall use the premises for his/her residential and/or non-residential purpose and for no other purpose whatsoever. Similarly, in clause 9(a) of the agreement, it is stated that the premises shall be used for a residential and/or non residential purpose of the licensee and his/her bonafide family members and staff only. 7. Going by the contents of the agreement, it is amply clear that the premises were let out to : 5 : the Petitioner in terms of the said agreement not exclusively for residential purposes. If it is so, the provisions of Section 24 of the Act will have no application to such a case. For, Section 24 governs premises given on license for "residence" and no other premises. Ordinarily, the issue of jurisdiction has to be addressed on the basis of the averments in the Plaint. As aforesaid, there is no clear averment in the Plaint that the premises were let out for residential use only. It is for that reason in the fact situation of the present case, the Court was required to not only look at the original application but also the agreement of Leave and License which is integral part of the Petition as the Respondent has himself referred to the said document in Paragraph 3 of the original application and annexed the same. 8. Besides what has been observed above, I find substance in the stand taken on behalf of the Petitioner that the matter can be answered also by applying clause (b) of Explanation below Section 24 which postulates that for the purposes of Section 24 of the Act an agreement of license in writing : 6 : shall be conclusive evidence of the fact stated therein. In other words, the fact stated in the Leave and License Agreement which is pressed into service by the Respondent, itself will bind the Respondent being conclusive. Viewed thus, it is not a case which gives rise to mixed question of fact and law, but the Competent Authority was obliged to examine the application preferred by the Petitioner on the basis of admitted facts stated in the pleadings and the contents of the Agreement which was conclusive and binding on the parties. In other words, there was ample material before the Competent Authority to authoritatively pronounce upon the issue raised by the Petitioner in the context of the issue of its jurisdiction to try and decide the original application filed by the Respondent. 9. To get over this position, Counsel for the Respondent has relied on the observation made in paragraph 16 of the impugned Judgment which in turn, proceeds to rely on the dictum of this Court in an unreported decision in Writ Petition No.5479 in the case of Satpalsingh Yadav vs. Pramod : 7 : Shinde, wherein, it is observed that the Competent Authority should try all the issues together and pronounce the Judgment on all the issues. That exposition will have no application to the case on hand, having regard to the reasons already recorded hitherto. 10. A priori, it necessarily follows that the application preferred by the Petitioner ought to have been allowed on the finding that the original application preferred by the Respondent before the Competent Authority could not be proceeded for want of jurisdiction to try and decide the same as it pertained to premises which were not exclusively let out for residential use. 11. For the aforesaid reasons, this Writ Petition succeeds. The impugned Judgment and Order passed by the Competent Authority is set-aside. Instead, the application preferred by the Petitioner is made absolute and as a consequence of the opinion recorded hitherto, the original application filed by the Respondent before the Competent Authority being application No.21 of 2007 : 8 : will have to be dismissed for want of jurisdiction of the Competent Authority. Ordered accordingly. 12. No order as to costs. A.M.KHANWILKAR, J.