1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3224 OF 2010 Shri Shaikh Arif Shabbir & Anr. .. Petitioners Vs Smt. Laxmibai Bhagwanrao Divekar & Ors. .. Respondents -- Shri A.B. Tajane for the Petitioners. Shri Uday Warunjikar along with Shri Nitesh Bhutekar i/by Vijay Chandavare for the Respondent No.2. -- CORAM : A.S.OKA, J. DATE : 7TH MAY, 2010 ORAL JUDGMENT ; . This Writ Petition under Article 227 of the Constitution of India arises out of an order dated 9th June, 2009 passed by the competent authority on an application filed by the Respondents under Section 24 of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as the said Act of 1999 ). An order of eviction was passed by the competent authority against the Petitioners on the said application. A revision application preferred by the Petitioners has been 2 dismissed by the Revisional Authority. These are the two impugned orders in this Writ Petition under Article 227 of the Constitution of India. 2. The case of the Respondents is that the suit premises being Row- House No.31 together with terrace and garden situated at Village Hadapsar, Taluka – Haveli, District – Pune, was purchased by one Bhagwanrao Marutrao Divekar ( the deceased husband of the 1st Respondent ) and the 2nd Respondent herein. According to the case of the Respondents, in May, 2009, the Petitioners approached the deceased husband of the 1st Respondent and in presence of the 2nd Respondent requested that they be allowed to use the suit premises for a short period of 11 months from 1st June, 2005 to 30th April, 2006. Accordingly, an agreement of leave and licence was executed by the deceased husband of the 2nd Respondent in his capacity as the legal representatives of Bhagwanrao. The 2nd Respondent also executed the said agreement. The terms and conditions of licence have been incorporated in the said agreement. The licence period came to an end on 30th April, 2006. The case of the Respondents is that thereafter the Respondents were to remove themselves from the suit premises. According to the Respondents, on the request made by the Petitioners, a fresh leave and licence agreement dated 10th February, 2007 was executed by the said deceased Chandrakant and the Petitioners by which a licence was granted to the Petitioners to use and occupy the suit premises. According to the case of the Respondents, the said Chandrakant requested the Petitioners to co-operate with the process of 3 registration of the agreement. However, the Petitioners did not co-operate. In December, 2007, the said Chandrakant, the husband of the 2nd Respondent expired. At that stage, the 2nd Respondent requested the Petitioners to vacate the premises on the ground that the Respondents needed the suit premises. At that stage, the Petitioners assured the 2nd Respondent that construction of their bungalow in Indraprastha Society will be completed very soon and as soon as the construction was over, the Petitioners would vacate the suit premises. It was alleged that the Petitioners failed to keep their promises and in fact they filed a civil suit in the year 2008 in the Civil Court at Pune. In the civil suit, it was contended by the Petitioners that they were tenants of the Respondents in respect of the suit premises from 1st June, 2005. Thereafter, the application under Section 24(1) was filed by the Respondents before the competent authority on 17th November, 2008. After service of the notice of the application, the 1st Respondent filed an affidavit seeking leave to defend the application. By an order dated 20th May, 2009, leave to defend the application was not granted. By the judgment and order dated 9th June, 2009, the competent authority passed an order of eviction. Being aggrieved by the said judgment and order, the Petitioners preferred the Revision Application before the Additional Commissioner, Pune, which has been dismissed. 3. The learned counsel appearing for the Petitioners submitted that the declaratory suit filed by them is prior in point of time. The learned counsel 4 appearing for the Petitioners submitted that an application made by the Petitioners for grant of leave to defend was erroneously rejected by the competent authority and in fact the leave ought to have been granted. He submitted that the order by which the leave to defend was declined by the competent authority was specifically challenged in the revision application preferred before the learned Additional Commissioner, Pune. He submitted that the revision application could not have been dismissed on the ground that the leave to defend was not granted to the Petitioners especially when there is a specific challenge in the revision application to the order by which the leave to defend the application was declined. He submitted that while challenging the final order of eviction by filing a revision application, the Petitioners were entitled to challenge the earlier order passed during the pendency of the application of not granting the leave. 4. The learned counsel appearing for the Respondents invited an attention of the Court to the application dated 8th September, 2009 filed by the Respondents in the Civil Suit filed by them stating that they were desirous of vacating the suit premises till the end of January, 2010. The learned counsel appearing for the Respondents also invited an attention of the Court to the application dated 15th December, 2008 filed by the 2nd Petitioner before the Competent Authority in which the 2nd Petitioner contended that the Petitioners may be allowed to retain the possession of the suit premises till completion of their own house. He relied upon the affidavit dated 30th March, 2009 filed by the 5 1st Petitioner before the competent authority in which the 1st Petitioner clearly stated that the Petitioners were not interested in claiming tenancy right in respect of the suit premises and the Petitioners be permitted to retain the suit premises till construction of their own house is completed. 5. The learned counsel appearing for the Petitioners submitted that the application made by the 2nd Petitioner before the competent authority on 15th December, 2008 was infact rejected by the competent authority by an order dated 24th September, 2009. He submitted that what is stated in the application cannot be construed as any admission on the part of the Petitioners that they were mere licencees. The suit claiming tenancy is already pending and therefore the order of eviction could not have been passed against the Petitioners. 6. I have given careful considerations to the submissions. It is true that the suit for declaration of tenancy has been filed prior in point of time to the application for eviction. In the said suit, the Petitioners contended that the 2nd Respondent and her husband Chandrakant had executed an agreement dated 1st June, 2005 which was in fact an agreement of tenancy. It is alleged that on 10th February, 2007, the 2nd Respondent and her husband executed an agreement of tenancy in favour of the Petitioners. In Paragraph 5 of the plaint, it is alleged that though the 2nd Respondent and her husband intended to create landlord- tenant relationship between them and the Petitioners , to ensure that such 6 relationship is not brought on record , leave and licence agreements were executed by the 2nd Respondent and her husband. It was pointed out that the 2nd agreement has not been registered in accordance with Section 55 of the said Act. Thus, the execution of the two agreements of leave and licence executed by the Petitioners is not denied in the suit but what was contended was that the real intention was to create a tenancy and not a leave and licence. Clause (b) of Explanation to Section 24 of the said Act incorporates a rule of evidence that a leave and licence agreement in writing shall be conclusive evidence of facts stated therein. It is not in dispute that both the agreements record that a licence was granted to the Petitioners to use the suit premises for a limited durations subject to payment of licence fees and compliance of other conditions agreed by and between the parties. 7. In the suit filed by the Respondents, they made an application at Exhibit -24 on 8th September, 2009 through their advocate. A xerox copy of the said application has been placed on record by the learned counsel appearing for the Respondents. In Paragraphs 1 and 2 of the said application, the Petitioners stated that as soon as the construction of their own house at Hadapsar was completed, they shall vacate the suit premises. It was specifically stated that the construction will be completed till the end of January, 2010 and thereafter the Petitioners shall vacate the suit premises in the month of February, 2010 and shall hand over peaceful possession thereof to the Respondents. In Paragraph 4 of the 7 application, it was reiterated that there will not be any hardship to the Respondents if the Petitioners are allowed to occupy the suit premises till the end of January, 2010. In Paragraph 5 of the said application, it is alleged that the Respondents have obtained orders of vacating the suit premises from the competent authority and the Respondents were likely to dispossess the Petitioners from the suit premises on the basis of the said order. Therefore, a prayer for grant of ad-interim injunction was made in the said suit. On 15th December, 2008, the 2nd Petitioner made an application in the application for eviction pending before the competent authority. In the said application, it was categorically stated that the Petitioners shall vacate the suit premises after six months. A categorical statement in writing was made by the Petitioners that they will vacate the suit premises within six months and a similar commitment in writing was also made by them in the suit filed by them. In the said application, it was contended that the application was made in writing with a view to state that the Respondents will accept the said proposal and will allow the Petitioners to remain in possession till their new house is constructed. It is further stated in the application that if the said offer/suggestion was not acceptable to the Respondents, the Petitioners be permitted to contest the said application by filing a separate affidavit. There is a detailed order dated 24th February, 2009 passed by the competent authority on the said application. The competent authority observed that it had no jurisdiction to grant time to vacate the suit premises. The competent authority referred to an affidavit filed by the Petitioners seeking 8 leave to defend. The competent authority has observed that the 2nd Petitioner, in the said affidavit, has neither challenged the relationship between the parties nor challenged the contention of the Respondents about the expiry of licence period. It is pointed out that there is no specific denial on the part of the 2nd Petitioner that the suit premises was given to the Petitioners for residential purposes. Therefore, the competent authority by an order dated 24th February, 2009 declined to grant leave to defend. The leave was declined on the ground that the 2nd Petitioner in the application for grant of leave to defend did not dispute the relationship between the Respondents as the licensors and the Petitioners as the licencees. 8. At this stage, it must be noted that there is a separate affidavit filed by the Petitioners on 30th March, 2009 before the competent authority. In the said affidavit, the Respondents relied on the affidavit of the 2nd Petitioner and stated that the construction of their house was likely to require about 4 to 5 months’ time and after completion of house, the suit premises will be re-delivered to the Respondents without any objection. The 1st Petitioner specifically stated that they were not desirous of claiming any tenancy rights in respect of the suit premises. The said affidavit along with the application made by the 2nd Petitioner clearly show that the Petitioners never disputed that they were licencees in respect of the suit premises which were given for residential use. The application made by the Petitioners before the Civil Court as well as the application made by 9 the 2nd Petitioner along with the affidavit of the 1st Petitioner before the competent authority clearly show that the petitioners were praying for time of 4 to 5 months to vacate the suit premises so as to enable them to complete the construction of their new house and to shift to the said new house. Thus, what was sought by the Petitioners from the Civil Court as well as from the competent authority was only the time to vacate the suit premises. Moreover the execution of leave and licence agreements was admitted by the Petitioners. In view of Clause (b) of explanation to Section 24 of the said Act of 1999, the agreements are conclusive evidence of the facts stated therein. 9. As stated earlier, the execution of the leave and licence agreements was not disputed. Their own applications show that the Respondents were interested only in getting some reasonable time before they could shift to their own house which was allegedly under construction. Considering these state of affairs, no fault can be found with the competent authority if the leave to defend the application was not granted in view of the admission position referred to above. 10. Subject to what is observed above, there is no merit in the Writ Petition and the same is rejected. 10 11. The learned counsel appearing for the Petitioners prays for continuation of the ad-interim relief. The said request is opposed by the learned counsel appearing for the Respondent No.2. 12. It is directed that the order of eviction shall not be executed till 31st July, 2010 subject to condition that the Petitioners will not part with possession and will not create any third party interest in respect of the suit premises. ( A.S. OKA, J )