1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3563 OF 2008 Mr. Chimanlal Shah, at Flat Nos.701 and 702 on the 7th floor, Classique Co-operative Housing Society Ltd., Plot No.14, CTS No.81, Gulmohar Road, Vile Parle (West), Mumbai – 400 056. ... Petitioner (Original Respondent) V/s. Mrs. Farhana Abdul Jabar Sayyad, C/o. A.J. Sayed, 3rd floor, Sonal Palace, 33 Norris Road, Richmond Town, Bangalore – 400 025. ... Respondent. (Original Applicant) Mr. P.K. Dhakephalkar, Sr. Counsel i/b. M/s. Lakshmi Murali & Asso. for the Petitioner. Mr. V.A. Thorat, Sr. Counsel a/w. Mukul Taly, Rakesh Misar and Rahul Pujari i/b. S. Mahamedbhai & Co. for the Respondent. CORAM : S.C. DHARMADHIKARI,J. DATED : 16th JULY 2009. ORAL JUDGMENT :- Rule. Respondent waives service. By consent, rule made returnable forthwith. 2 2. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners pray that this Court should quash and set aside the orders dated 22nd September 2005, 7th April 2008 and 24th September 2008. 3. The Petitioner is the Original Respondent in Eviction Application No.12 of 2004 which was on the file of the Competent Authority, Konkan Division. That Application has been filed by the Respondent seeking eviction of the Petitioner from the premises on the grounds, which are more particularly enumerated in the Application. 4. The Respondent filed this Application invoking Section 24 of the Maharashtra Rent Control Act, 1999. 5. In terms of the relevant statutory provisions, the Petitioner – Respondent applied for necessary leave to defend. The Competent Authority granted leave to defend on 28th July 2004. Thereupon, the written statement was filed after which the proceedings went on before the Competent Authority. After permitting both sides to place such material as is 3 permissible in law, the Competent Authority made an order on 22nd September 2005 allowing the Respondent’s Application and directing the Petitioner to hand over vacant and peaceful possession of the suit premises. The Competent Authority directed the Petitioner to pay the arrears of compensation for the period 1st May 1999 to 30th September 2003 at the rate of Rs. 8,000/- per month and from 1st October 2003 till handing over possession at the rate of Rs.16,000/- per month. 6. Aggrieved and dis-satisfied with this order, the Petitioner preferred a Revision Application before the Additional Commissioner, Konkan Division, Mumbai under Section 44 of the Maharashtra Rent Control Act. By an order dated 7th April 2008, the Revisional Authority dismissed the Revision Application. 7. Aggrieved by these orders, initially, a Writ Petition was filed by the Petitioner being Writ Petition No.3563 of 2008. That Writ Petition was placed before the learned Single Judge of this Court. During the course of the arguments, the 4 Petitioner contended that the Application filed by the Respondent under Section 24 of the Maharashtra Rent Control Act, 1999 was not maintainable and no order of eviction could have been passed thereon. It was urged that the Competent Authority so also the Revisional Authority did not record any finding on the issue of maintainability and such issue goes to the root of the proceedings. For these reasons, the Petitioner prayed that an opportunity be granted to him to make good the objection of maintainability of the proceedings. This Court, therefore, passed an order on 6th June 2008 inter-alia directing the Competent Authority to record a finding on the maintainability of the proceedings and remit the same to this Court. The said Competent Authority thereafter heard parties and by an order dated 24th September 2008 held that the proceedings were maintainable and confirmed its earlier order directing eviction of the Petitioner from the Suit premises. Therefore, the Petitioner filed the instant Petition challenging all three orders. 8. The only contention raised before me by Mr. Dhakephalkar, learned Senior Counsel for the Petitioner is that 5 the Application for Eviction under Section 24 of the Maharashtra Rent Control Act was not maintainable. Mr. Dhakephalkar submitted that the Respondent filed an application for eviction invoking Section 24 although she was fully aware that the leave and license in this case was for a period of 11 months commencing from 1st August 1996 to 30th June 1997 and the compensation determined was Rs.8,000/- per month. Thereafter, parties negotiated and another license agreement came to be executed on 1st June 1997 determining the period of license from 1st July 1997 to 31st May 1998. Thereafter, the parties discussed and negotiated the matter and the last agreement of leave and license came to be executed with effect from 1st June 1998 to 31st April 1999. However, with the intervention of common friends the final renewal came to be granted from 1st May 1999 to 10th February 2000. Thereafter, there has been no renewal of the leave and license agreement. The submission of Mr. Dhakephalkar is that the Maharashtra Rent Control Act was brought into effect on 31st March 2000. In this case, the leave and license agreement expired on 10th February 2000. In such circumstances, this is not a license which was subsisting under 6 the Rent Control Act of 1999. If it was not a subsisting license, then, no proceedings could have been initiated for eviction of the Petitioner from the Suit premises on the basis that a leave and license agreement executed prior to the enactment in question has expired by the efflux of time. The remedy available to Respondent for seeking eviction of the Petitioner is intact but according to Mr. Dhakephalkar the Forum of the Competent Authority is not available to the Respondent. If the license had come into effect and was governed by the earlier statute, then, there is nothing in the Maharashtra Rent Control Act which would permit initiation of proceedings in the case of such a licensee and therefore, the proceedings were not maintainable. Consequently, no order of eviction could have been made. 9. Mr. Dhakephalkar urged that the prior enactment has been obliterated and if there is nothing in the New Act by which the proceedings, which could have been initiated under the prior enactment, can be instituted, then, recourse to Section 24 was impermissible. Mr. Dhakephalkar invited my attention to Section 7(5) of the Maharashtra Rent Control Act 7 and similarly, Section 24, 39, 41(c), 42, 46 and 58 thereof. He submits that although it is urged by the Respondent that the point is covered by the Decisions of two learned Single Judges of this Court, yet, there the issue raised was not of a Leave and Licence Agreement expiring prior to the Maharashtra Rent Control Act coming into force. He submits that before Hon’ble Mr. Justice Karnik in the case of Anjali Jayant Gandhi V/s. Ramesh Gopal Vagholikar (2005 (2) Bom. C.R.933), the renewed licence expired on 31st March 2001, therefore, the proceedings under the new Act were maintainable. As far as the decision of Hon’ble Mr. Justice Khandeparkar in Raj P. Kondur V/s. Arif T. Khan reported in (2005 (4) Bom. C.R. 383) is concerned, Mr. Dhakephalkar urged that there also this point was not in issue. He submits that before Justice Khandeparkar the main ground of challenge was the Registration of the Leave and Licence Agreement. He submits that therefore the observations in that decision also are of no assistance. That apart, Justice Khandeparkar relied upon a Judgment of this Court in Afsar Shaikh’s case which is reported in 1997 II BCR 456. In Afsar Shaikh’s case the controversy was not identical but arose out of the old Act. In these 8 circumstances, these decisions are of no assistance. On the other hand, there is a direct decision of this Court of another learned Single Judge in the case of Dinkar Keshav Deshmukh V/s. Vasantdada Sugar Institute, Pune (1997 (1) Mh,L.J. 191) which takes the view that earlier license would be governed by the old Act and the landlord cannot resort to the summary proceedings contemplated by the amendment to the Bombay Rent Act. For these reasons, the impugned orders suffer from an error apparent on the face of record and they be set aside. 10. On the other hand, Mr. Thorat, learned Senior Counsel appearing for the Respondent contended that neither the “Tenancy nor “Licence” is created by the Rent Control Act. These are creations of General Laws. All that the Rent Control Act has done is to recognize them. He submits that these concepts were recognized by the 1987 Act and that recognition continues even under the new Act. There is nothing by which the two enactments can be distinguished in so far as eviction of licensee are concerned. He submits that provisions whereunder the term “licensee” is defined, their 9 eviction after the license period has expired, are identical in both Enactments. He submits that what is material in this case is that once the agreement for license has expired, then, unless there is a contrary intention appearing in the new Act, proceedings for eviction by filing an application before the Competent Authority under Section 24 is a remedy which is available to the licensor. He submits that the entire purpose is to advance the remedy and suppress the mischief. All such persons who were inducted as licensees under the Leave and License Agreements which were no longer in subsistence cannot continue in occupation or use of licensed premises. If this is the intention under both enactments, then, applying the settled principle of statutory Interpretation so also the underlying object of Section 6 of General Clauses Act, 1897, it must be held that the proceedings are maintainable. Mr. Thorat places reliance upon the decision of Justice Karnik and Justice Khandeparkar so also that of the Supreme Court reported in AIR 1955 S.C. 84 (State of Punjab V/s. Mohar Singh Pratap Singh). 11. For properly appreciating the rival contentions, it would 10 be advantageous to refer to the Maharashtra Rent Control Act, 1999 (for short, the New Act). The Maharashtra Rent Control Act was brought into effect on 31st March 2000. It is a Act to unify, consolidate and amend the law relating to the Control of Rent and repairs of certain premises and of eviction and for encouraging the construction of new houses by assuring a fair return on the investment by landlord and to provide for the matters for the purposes aforesaid. A single enactment for the entire State of Maharashtra was the purpose and it is not disputed before me that this Act contains several definitions. The definition of the term “licensee” is identical to that of the old or repealed Act. The term “licensee” is defined to mean a person who is in occupation of the premises or a part thereof, as the case may be under a subsisting agreement for license given for the license fees or charge, etc. The provisions of Chapter II i.e. Section 8 onwards deal with fixation of standard Rent and Permitted Increases. Chapter III deals with relief against forfeiture. Chapter IV provides for recovery of possession. Chapter V is entitled “special provisions for recovery” of possession in certain cases. Section 24 falls therein and reads thus :- 11 “S. 24. Landlord entitled to recover possession of premises given on licence on expiry :- (1) Notwithstanding anything contained in this Act, a licnesee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee. 2. Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence. 3. The Competent Authority shall not entertain any claim of whatever nature from any other 12 person who is not a licensee according to the agreement of licence. Explanation – For the purposes of this Section - (a) the expression “landlord” includes a successor-on-interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence; (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein. 12. A bare reading of Section 24 would demonstrate that it beings with a Non-obstante Clause and states that a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence and on failure of the licensee to so deliver a landlord shall be entitled to recover possession of such premises from a licensee on the expiry of a period of licence, by making an application to the Competent Authority. The sub-Sections of this Section are in furtherance of the right given to the landlord. 13. Chapter VIII of the Maharashtra Rent Control Act, 1999 13 contains provision for summery disposal of certain applications. Section 39 falls therein and reads as under :- “S.39. Provisions of this chapter to have overriding effect :- The provisions of this chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.” 14. Section 40 provides for appointment of Competent Authority and Section 41 defines landlord for the purposes of Chapter VIII. Section 42 enacts special provisions for making application to Competent Authority by landlord to evict tenant or licensee and Section 43 sets out special procedure for disposal of applications. Section 44 provides for a Revision Application to the State Government and since reliance is placed upon Section 46 and 58, suffice it to state that what Section 46 and Section 58 do is to enact the settled rule that pending proceedings would continue to be heard and disposed off as if the new Act had not been passed. 15. In the commentary on the Maharashtra Rent Control Act, 1999 by Noted Author J.H. Dalal and edited by Late G.M. Divekar, it is stated that :- “ When the licensees prior to 1st February 14 1973 were made deemed tenants, subject to the provisions of Act of 1947 by introducing Section 15A by Mah. Act, XVII of 1973, many investors of flats kept their flats vacant and did not give them out for occupation on licence for fear of licensees being declared as tenants. It was taking great delay in Courts in recovering possession of the premises and that was another reason for keeping the flats vacant. There was also another fear of such flats being subject to the provisions of the standard rent. Having regard to the increasing housing shortage, the legislature contemplated a scheme to induce such investors to give their vacant flats for occupation to licensees for residence without being subjected to the provisions of the standard rent and providing a quicker procedure to recover possession of such flats without the usual long delays and hence Section 13A(2) was inserted in the Act of 1947. The object of this Section is to provide an expeditious procedure for disposal of such proceedings and to induce investors to give their flats on licence and thereby relieve housing shortage. The policy to permit landlords, owners of premises, to give premises on licence basis was 15 evident when the Bombay Rent Act of 1947 by Mah. Act XVII of 1973. The enactment of this Section is a sort of reward to landlords giving their flats on licence basis.” 16. The learned author thereafter states thus :- “ With respect to the second condition, it is quite simple to understand. However, it has raised very important controversy. The question is as to when the premises are given on licence; whether prior to 31st March, 2000 or subsequent thereto. In other words whether it applies retrospectively to premises given on license prior to 31st March 2000. The section makes it clear that the provisions shall apply to the premises given on licence on and after 31st March, 2000 that is the date when the Act came into force.” 17. The above comments are made on the basis of the view taken by learned Single Judges of this Court on the applicability of Section 13A(2) of the Bombay Rent Control Act, 1947. While it is true that this Section and the present Section 24 are identically worded and the view taken by this Court is that Section 13A(2) must be given prospective effect, 16 yet, Mr. Dhakephalkar’s reliance upon these decisions is somewhat misplaced. 18. In those decisions, the view taken was that the Bombay Rent Act 1947 was amended. The amendment came into effect from 1st October 1987. For the first time, in the amendment to Bombay Rent Act with effect from this day, the special provisions of Section 13 A(2) were introduced. Therefore, the learned Judges, with respect, took a view that if the licence was in existence on and after 1st October 1987, then alone, the application before the Competent Authority for eviction of the licencee can be held to be maintainable. It must be, therefore, borne in mind that Section 6(4) and Section 13A(2) of the Bombay Rent Act, 1947 as amended were brought into effect on 1st October 1987. Prior thereto, in the 1947 Act, the concept of licensee was recognized but the object and purpose for such re-cognition was different. No special provisions were carved out for their eviction earlier and they were introduced with effect from 1st October 1987. Since, for the first time such provisions were introduced, the view rightly taken was that case of a licence, which expired 17 prior to the said date, cannot be brought within the purview of the amended provisions conferring jurisdiction on the Competent Authority. The special provisions introduced for the first time enabling the landlord/licensor to seek eviction of licencee, therefore, cannot be resorted to by the licensor. 19. Mr. Dhakephalkar’s arguments overlook the fact that the Maharashtra Act does not contain anything contrary in so far as the special provisions are concerned. Admittedly, the Maharashtra Rent Control Act, 1999 is a Act to unify, consolidate and amend the law relating to the Control of Rent. The Act is thus a unifying and consolidating statute. It must receive that interpretation which furthers the object for which it is enacted. The principles by which such statutes have to be construed, are well settled. It is permissible to refer to the previous state of the law or to judicial decisions interpreting the repealed Acts for the purpose of construction of the corresponding provisions in the consolidation Act. (See principles of statutory interpretation by Justice G.P. Singh (7th Edition Page 248) Now, a single Rent Control Act for the entire State is in force. The legislature in its wisdom has 18 continued the provisions in the Bombay Rent Act, 1947 and more particularly, Section 13A(2) by re-enacting it. It has not introduced anything New for the first time. This distinction cannot be lost sight off while appreciating the submissions of Mr. Dhakephalkar. If these aspects are taken into consideration, then, the earlier view is clearly distinguishable. 20. The legislature was aware that leave and licence arrangement and agreements are in vogue in some parts of the State. Particularly, in cities like Bombay and Pune, lot of premises are given on leave and license basis. Therefore, the legislature has not made any change but continued the special provisions of the 1987 in the new Act. In fact, the legislature made these provisions applicable for the entire State. The broad object that is sought to be achieved by having special provisions to evict licensees who continue to occupy the premises despite the period of licence having expired has already been noticed by me above. The entire machinery of eviction of licencees including jurisdiction of the competent authority is maintained and rather carried forward in the New Act. No departure or change is made save and 19 except the placement of Sections. Hence, there is no substance in the contentions of Mr. Dhakephalkar that the New Act cannot apply to licences created between 1.10.1987 till 31st March 2000. The doubt created by the learned Author’s comments can be cleared by holding that his comments should be seen in the context of the position prior to amendments made in the Bombay Rent Act, 1947 w.e.f. 1.10.1987. As far as the position between 1.10.1987 to 31.3.2000 is concerned, the New Act does not contain anything inconsistent or incompatible to the Old Act. In these circumstances, I am of the view that reliance upon the Single Judges’ decisions by Mr. Dhakephalkar is misplaced. 21. The first decision that is relied upon by Mr. Dhakephalkar is that of Ravindranath H. Hiremath V/s. Prashantkumar Buttancase reported in 1994 (2) Maharashtra law Journal page 1731. There, the licencee was inducted on 31st January 1987 and the licence came to an end on 31st December 1987. In the meantime, there was amendment to the Bombay Rent Act and Section 13A(2) was introduced on 1st October 1987, enabling landlord to recover possession of the 20 premises given on licence after the expiry of the licence period. 22. The argument was that this amendment cannot be made applicable to the licencee before. The learned Single Judge, taking stock of all the amendments to the Bombay Rent Act, took the following view :- “9. From the above discussion this Court is of the view that the amendment to the Rent Act introduced on October 1, 1987 is applicable to all the licenses created on and after October 1, 1987 and also in respect of the licenses created prior to October 1, 1987 provided the licences continued to be in existence on and after October 1, 1987. 10. The next question to be decided is as to the licence agreement entered into prior to October 1, 1987 and terminated or expired prior to October 1, 1987. In view of Section 13A(2) more particularly sub-section 1 the said provision is applicable to the licences in existence on and after October 1, 1987, all the licences created prior to October 1, 1987 and terminated prior to October 1, 1987 or in respect of which the proceedings are pending in the Courts, Section 13A(2) is not applicable. However, in respect of the licences created prior to October 1, 21 1987 and where there is no indication as to whether the said agreements are terminated or not, the competent authority should allow the parties to lead evidence on the point as to whether the licence agreements continued on or after October 1, 1987 depending upon the conduct of the parties and such other circumstances. In view of this, in the present Civil Revision Application the decision of the competent authority to the effect that the competent authority has no jurisdiction to entertain and try this application is liable to be set aside.” 23. Thus, it is not as if the learned Judge held that the proceedings were not maintainable straightaway. He had, even then, made the distinction which can be culled out from the above reproduced observations. That apart, another learned Single Judge of this Court in a decision reported in 1997 (1) Mah. Law Journal (596) (Afsar Shaikh V/s. P.N. Kaul) had noted that he had some differences with the above view and in fact made a reference to a larger bench in the case of