1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6282 OF 2009 Manik Dagdu Kolekar ...Petitioner vs. Arun Janardan Mahamuni ...Respondent Mr.Rupesh Bobade for the petitioner Mr.Sachin Dhakephalkar for the respondent CORAM :A.S.OKA,J. DATE : JANUARY 28, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Taken up for final disposal. 2 The respondent filed an application under section 24 of the Maharashtra Rent Control Act,1999 (hereinafter referred to as the said Act). The application was made for recovery of the possession of the suit premises more particularly described in paragraph 1 of the application. According to the finding of the Competent Authority, though notice of the said application was served to the petitioner, he did not appear and did not apply for grant of leave to defend. The Competent Authority rejected the application for eviction on the ground that the respondent has not proved that he was a licensor and that the petitioner was a licencee. The Competent Authority referred to the legal notice sent by the respondent which preceded the filing of the application. In the said notice, it was stated that the respondent has terminated the landlord-tenant relationship. 3 A revision application was filed by the respondent under section 44 of the said Act. The Additional 2 Commissioner allowed the revision application and passed an order of eviction. The learned Additional Commissioner observed that the notice of the revision application sent to the petitioner was not claimed and therefore, the respondent proceeded to allow a revision application. An order of eviction was passed in the revision. 4 The submission of the learned counsel for the petitioner is that he was not served with the notice of both the application for eviction as well as the revision application. His submission is that on plain reading of the agreement on the basis of which application for eviction is filed it is crystal clear that the agreement is not of leave and licence but the agreement creates a tenancy. Inviting my attention to the notice which preceded the application for eviction, he submitted that as per the said notice, the respondent purported to terminate the tenancy of the petitioner. 5 The learned counsel for the respondent submitted that initially a stand was taken by the petitioner that he was not in possession of the suit premises in respect of which the order of eviction has been passed. He submitted that subsequently the said stand was changed by the petitioner. He submitted that the petitioner was duly served with the application for eviction and as he did not apply within the stipulated period of 30 days for grant of leave to defend, the Competent Authority ought to have allowed the said application and the order of eviction ought to have followed as a matter of right. He, therefore, submitted that no interference is called for. 6 I have given careful consideration to the submissions. As far as eviction application is 3 concerned, the Competent Authority has observed that summons sent by the RPAD was returned back with the remark `Not claimed . The revisional authority noted that the notice of revision application was sent by RPAD which was not claimed by the petitioner. However, the fact remains that the petitioner did not appear both before the Competent Authority as well as the Revisional Authority. There is a categorical statement on oath by the petitioner in the affidavit dated 24th September 2009 stating that he was on duty as a Controller on 6th February 2006 and 7th February 2006 at Tembhurni Bus Stand of Maharashtra State Transport Corporation. He had stated that he was not aware about the proceeding of the application filed before the Competent Authority. 7 The finding of the Competent Authority is that on plain reading of the agreement on which reliance was placed by the respondent, a licensor - licensee relationship has not been established and the agreement and the notice suggest that the petitioner was inducted as a tenant. Perusal of the impugned order passed by the Additional Commissioner shows that he has not considered the nature of the agreement on which reliance was placed by the respondent. In fact, the Additional Commissioner has not even referred to the contents of the agreement as well as the notice issued by the respondent. 8 The consequence of the respondent in the application under section 24 of the said Act not applying for leave to defend is that the contents of the application for eviction are deemed to have been admitted by the respondent to the application. However, the Competent Authority gets the jurisdiction to pass an order of eviction under section 24 of the said Act provided the applicant is the licensor and the respondent to the 4 application is the licensee. The presumption created by section 24 in respect of the leave and licence agreement will apply provided the agreement is of leave and licence. Therefore, even if the respondent to the application under section 24 of the said Act does not defend the application, the Competent Authority has to satisfy itself that the applicant is the licensor and the respondent is the licencee. The Competent Authority gets the jurisdiction to pass an order of eviction provided this jurisdictional fact is established. 9 The learned Additional Commissioner seems to have proceeded on assumption that the agreement relied upon by the respondent is an agreement of leave and licence. The Competent Authority has extensively referred to the contents of the agreement and has recorded a finding that there is no relationship as a licensor and licencee. The said finding has not been dealt with by the learned Additional Commissioner. In the circumstances, this is a case where the order of remand will have to be passed. The learned Additional Commissioner will have to consider all these aspects. He will have to also consider whether there was a proper service of the summons of the eviction application. 10 It must be stated that the petitioner has deposited the entire compensation amount payable as per the impugned order. The case of the respondent is that the licence fee was Rs.400/- per month. Till the disposal of the revision application, the petitioner will continue to pay the amount of Rs.400/- per month to the respondent and the respondent will accept the said amount without prejudice to his rights and contentions. 11 Hence, I pass the following order : 5 i) Impugned order dated 15th January 2007 is quashed and set aside. ii)The parties are directed to appear before the Revisional Authority on 2nd March 2010 at 11.00 a.m. It is made clear that no further notice of the revision application will be issued both to the petitioner and the respondent. iii)The Competent Authority will hear and decide the revision application afresh in the light of observations made in this order. iv)The revision application shall be disposed of expeditiously and preferably on or before 30th May 2010. v) Till the disposal of the revision application, the petitioner will continue to pay an amount at the rate of Rs.400/- per month to the respondent. vi)All contentions of the parties on merits of the revision application are kept open. vii)The Petition is partly allowed in above terms with no order as to costs. viii)The writ be sent urgently. JUDGE