1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NO.1099 OF 2009 IN EXECUTION APPLICATION NO.228 OF 2009 IN EVICTION PROCEEDINGS NO.37 OF 2004 Smt.Meera R. Khanna, R/o.Flat No.33, Building 17, MHADA Flats, Bandra Reclamation, Bandra (W), Mumbai 400 050. Applicant VERSUS Arun Kumar Ohri, Flat No.11, Maharashtra Fisheries Co-op. Hsg. Soc; Kaustubha, Plot No.8, Bandra Reclamation, Bandra (W), Mumbai 400 050 having his office at Ad factors Advertising, 2nd floor, Manek Mahal, Veera Nariman Road, Mumbai 400 020. Respondent Ms.H.B.Gandhi for the applicant. Mr.Gaurav Mehta for the respondent. CORAM : A.S.OKA, J. DATE : 19th December 2009 JUDGEMENT :- 1. A notice was taken out by the applicant under Rule 22 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). With a view to appreciate the submissions made, it will be necessary to consider the factual matrix of the case. An application was 2 filed by the applicant under section 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the said Act"). The applicant claimed that she was a licensor of a residential premises and she had granted leave and license to the respondent to use and occupy the said premises. An order of eviction was prayed for. By judgment and order dated 27th December 2004, the Competent Authority passed an order of eviction and also directed the respondent to pay the damages @ Rs.50,000/- per month from 1st June 2004 till handing over of vacant possession of the said premises. 2. The Competent Authority by order dated 26th March 2009 transferred the order of payment of compensation to this Court for execution. The claim under the said order was of Rs.3,50,000/-. Accordingly, an execution application was filed by the applicant praying for various reliefs including attachment of assets of the respondent. In the execution, present notice under Rule 22 of Order XXI of the said Code was issued. The respondent has submitted objections to the execution by filing an affidavit. Accordingly, I have heard the learned counsel for the parties on the objections raised to the execution. 3. The learned counsel appearing for the respondent invited my attention to section 24 of the said Act and submitted that under section 24, the Competent Authority is conferred with the jurisdiction only to pass an order of eviction. He submitted that on conjoint reading of sub- sections (1) and (2) of section 24 of the said Act, the Competent Authority is not 3 conferred with the power to pass an order directing the licensee to pay the damages at double the rate of agreed license fee of the premises. He invited my attention to the provisions of Chapter-VIII of the said Act and in particular section 45 thereof. He submitted that under section 45 a power is conferred on the Competent Authority to forcibly evict the licensee against whom an order of eviction has been made under sub-section (1) of section 24 of the said Act. He submitted that the very fact that there is no provision made in the said Act for execution of an order of Competent Authority regarding payment of damages shows that the legislature never intended to confer any power on the Competent Authority to pass an order directing the licensee to pay the damages. He submitted that the order sought to be executed is nullity. 4. Without prejudice to the aforesaid contentions , learned counsel for the respondent submitted that the order passed by the competent authority of directing payment of compensation is neither an order within the meaning of section 2(14) nor a decree within the meaning of section 2(2) of the said Code. He submitted that the Competent Authority is not a Civil Court. He placed reliance on a decision of the Apex Court in the case of Prakash S. Jain Vs. Marie Fernandes [2004(5)-ALL M.R.(SC)-1. He submitted that the Apex Court has held that the Competent Authority exercising the jurisdiction under section 24 of the said Act is not a Court and, therefore, the Competent Authority has no power to condone the delay in filing an affidavit seeking leave to defend contemplated by sub section 4(a) of section 43 of the said Act. He submitted that as the Apex 4 Court has already held that the Competent Authority is not a Court, by no stretch of imagination it can be said that the order passed by the Competent Authority is either an order or a decree within meaning of section 2 of the said Code. He, therefore, submitted that the Competent Authority had no jurisdiction to transfer the order to this Court for the purposes of execution. He submitted that for the aforesaid reasons the order of Competent Authority is not capable of being executed and the applicant will have to file a civil suit for recovery of the amount of damages. 5. The learned counsel for the applicant submitted that the Competent Authority had made adjudication on the rights of the parties and, therefore, the order passed by the Competent Authority has force of a decree. She submitted that the Competent Authority has a right to adjudicate upon all the disputes between the licensor and the licensee and to pass an order of eviction. She submitted that the Competent Authority is a Court and, therefore, the order is capable of being executed. Reliance is placed on decision of this Court in case of Fundacio Privada Intervida Vs. Additional Commissioner, Pune Division, Pune and another [2005(2)-Mh.L.J.-769. Her submission is that there is no merit in the objection raised by the respondent. 6. Broadly following issues arise for consideration viz. :- I. Whether the Competent Authority under the said Act has a 5 jurisdiction to issue a direction directing the licensee to pay the damages as contemplated by sub- section (2) of section 24 of the said Act ? II. Whether the Competent Authority can be considered as a Court? III. Whether final order of eviction and payment of damages passed by the Competent Authority can be termed as an order or a decree which is capable of being executed under the provisions of the said Code? 7. Section 24 of the said Act reads thus :- "24. Landlord entitled to recover possession of premises given on licence on expiry.- (1) Notwithstanding anything contained in this Act, 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 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, by 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. 6 (3) The competent Authority shall not entertain any claim of whatever nature from any other 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-in- 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." Sub-section (1) of section 24 confers jurisdiction on the Competent Authority to pass an order of eviction against a licensee on being satisfied that the license period has expired. Sub-section (2) lays down that a licensee who does not vacate the licensed premises on expiry of license and continues to be in possession thereof till the time the Competent Authority passes an order of eviction, the licensee shall be liable to pay the damages at double the rate of licensee fee or charge of the licensed premises fixed under the agreement. Sub-section (2) of section 24 thus makes the licensee liable to pay the damages from the date on which the license expires at double the rate of agreed license fee. When an application for eviction is made before the Competent Authority on the ground that the period of license has expired either by efflux of time or by revocation thereof, the competent authority is required to adjudicate upon the question whether the period of license has expired. Before making such adjudication, the competent authority has to come to a conclusion that the applicant is the licensor and the respondent is the licensee. Sub section (2) of section 24 creates a liability on the part of the licensee and a 7 corresponding right in favour of the licensor. The liability follows from the fact that the licensee does not vacate the licensed premises on expiry of period of license or on revocation of the period of license. Therefore, once a Competent Authority after adjudication comes to a conclusion that the licensee continues to occupy the premises after expiry of license period or after due revocation of license, the order for payment of compensation under sub section 2 of section 24 must follow. If the submission made by the counsel for the respondent is accepted, it will follow that even after the Competent Authority passes an order of eviction on finding that the license has come to an end, the licensor will have to proceed against the licensee by filing appropriate proceedings such as a suit for recovery of the amount. As stated earlier, the liability of the licensee to pay the damages as provided under sub section 2 of section 24 is a logical consequence of order of eviction being passed under sub- section (1). Therefore, once the Competent Authority passes an order of eviction, the order for payment of damages follows , as the said licensor becomes liable to pay compensation as provided under sub-section (2) of section 24 , on the Competent Authority finding that the licensee has not vacated the premises after expiry of period of licensee. 8. On this aspect it will be necessary to consider the decision of this Court in the case of Fundacio Privada Intervida (supra). This was a case where an application was made under section 24 of the said Act by the licensor. During pendency of the proceedings, the licensee vacated the licensed premises. A pursis was filed by the licensor acknowledging 8 receipt of possession in which the licensor stated that he has right to recover the license charges, damages etc. The Competent Authority dropped the proceedings. An application for review of the said order was made by the licensor. The said application came to be rejected. A revision application was filed before the revisional authority which ended in an order of remand to the Competent Authority. The issue which was considered by this Court was whether the Competent Authority has jurisdiction to pass an order determining the compensation or damages. Paragraphs 20 and 21 of the said decision read thus :- "20. The concept of jurisdiction also needs consideration. Jurisdiction means authority to decide. Whenever a judicial Tribunal is required to inquire into a question of law or fact, for the purpose of giving decisions on it. The question whether the Tribunal has jurisdiction depends upon the section to which it owes its birth. The Tribunal empowered to determine claim under a particular legislation has the jurisdiction to determine all questions of law and fact relating to that claim subject to the provisions of the Act. Thus, a Tribunal like the one in this case, is empowered to determine claim for compensation for loss of office has a jurisdiction to determine all questions of law and fact relating to the measure of compensation. It does not exceed its jurisdiction by determining any such questions. Section 24 of the said Act, which lays, "notwithstanding anything contained in this Act, 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 license; and on the failure of the licensee to so deliver 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, by 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." "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 9 at double the rate of the licence fee or charge of the premises fixed under the agreement of licence." 21. The dissection of the above section makes it clear that any licensee, who does not deliver possession of the premises to the landlord on the expiry of the period of license and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority is liable to pay damages at double the rate of the license fee or charge of the premises fixed under the Agreement of Licence. Section 40 deals with the appointment of the Competent Authority for the purpose of exercising powers conferred, and for performing duties imposed, on him under the Act. If that be so the conjoint reading of sections 24 and 40 and the scheme of the said Act would make it absolutely clear that the Competent Authority is not only entitled to recover possession of the premises or dispossess the licensee but also has power to award compensation as contemplated under section 24(2) of the said Act. Thus, the power to determine an award and/or compensation and/or damages and/or monetary part of the liability is not only incidental to the power to evict but a specific duty coupled with power, to determine this liability, is bestowed on the Competent Authority. The Competent Authority vide its order dated 26th February, 2002 could not have dropped the proceedings without determining compensation or damages under section 24(2) of the said Act. Merely because possession was delivered by the license that by itself was not sufficient to take away jurisdiction of the Competent Authority to decide claim for damages. In my opinion, the view of the Competent Authority was based on mitaken reading of section 42. Even if possession is delivered by the licensor before initiation of the eviction proceedings till the Competent Authority will have jurisdiction to entertain and determine claim under section 24(2) of the said Act. In this view of the matter, the petition has no substance. The view taken in the impugned order by the revisional authority is in consonance with the provisions of the said Act." (Emphasis added) 9. Therefore, this Court upheld the power and jurisdiction of the Competent Authority to pass an order of awarding the compensation as contemplated under sub- section (2) of section 24 of the said Act. In fact, 10 this Court went to the extent of holding that in a given case where the licensee hands over possession of the licensed premises after expiry of the period of license, the competent authority has a jurisdiction to pass an order under sub-section 2 of section 24 of the said Act. In the circumstances, the first question will have to be answered in favour of the applicant by holding that the competent authority has a jurisdiction to pass an order directing the licensee to pay the damages under sub section (2) of section 24 of the said Act. 10. The next two questions formulated above will have to be considered now together. Before dealing with the submissions, what is held by this Court in paragraph 19 of the decision in the case of Fundacio Privada Intervida (supra) will have to be noted which reads thus :- "19. The shortage of housing during the Second World War resulted in the power of the landlords to evict tenants and their freedom to fix rent for their premises. Since the shortage has been persisting, the control is still continuing and various statutes have been enacted by the States in India. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as amended by the Maharashtra Rent Control Act, 1999 is one of such example. The statute empowers the State Government to appoint Courts and/or Competent Authority to decide disputes, such as fixation of standard rent and eviction of tenants. Before making any order that prejudicially affects any person, the authority under the said Act is required to give that person reasonable opportunity of being heard. In or before him, he has to follow as far as may be, the practice and procedure of a Court including the recording of evidence which means as far as possible the provisions of the Code of Civil Procedure are required to be followed. He is empowered to award such costs to any party as he considers reasonable. He has the powers of Civil Court under the Code of Civil Procedure when trying an application in respect of summoning and enforcing the attendance of any person 11 and examining him on oath, requiring discovery and production of documents, etc. The orders passed under the said Act are executable, if passed by the Civil Court as a decree, and if passed by the Competent Authority, then that authority itself has been given the power to execute even by using such force as may be necessary to comply with the order of eviction." (Emphasis added) The conclusion of this Court was that the orders passed by the Competent Authority are executable as if passed by a Civil Court. The argument of the learned counsel for the respondent was that the only power conferred under section 24 of the said Act on the Competent Authority is to pass an order of eviction and there is no power vested to pass an order for payment of damages. What is held by this Court in the aforesaid decision is that an order passed by the competent authority is executable as if it was a decree passed by the Civil Court. Thus, there is a pronouncement of law by this Court that the orders of the competent authority are executable. 11. Before proceeding to consider the decision in the case of Prakash S. Jain (supra), certain decisions of this Court require attention of this Court. In the case of Mohammad Salam Anamul Haque Vs. S.A.Azmi and others [2001(1)-Mh.L.J.-249, the issue which arose for consideration of this Court was whether the orders passed by the School Tribunal established under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 are executable. This Court examined the scheme of the said Act of 1977. Under section 9 of the said Act of 1977, a remedy of an appeal to the School Tribunal is provided to an employee of a private school who has been dismissed or removed 12 from the employment. Section 10 thereof lays down that for the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the said Code. The learned Judge of this Court also dealt with section 12 of the said Act of 1977 which lays down that the decision of the Tribunal shall be final and no suit, appeal or other legal proceeding shall lie in any Court in respect of the matters decided by the Tribunal. This Court dealt with section 13 of the said Act of 1977 which is a penal provision for penalizing a person who fails to comply with the orders passed by the School Tribunal. This Court considered section 10 of the said Act of 1977 which conferred limited powers of the Appellate Court under the said Code on the School Tribunal. After considering the law on the aspect, the learned Single Judge of this Court recorded following conclusions :- (i) When the Legislature expressly confers power, grant of that statutory power carries with by necessary implication the authority to make such grant effective; (ii) Therefore, the Tribunal constituted under the said Act has all powers necessary to enforce its order; (iii) An order made by the School Tribunal is an order within the meaning of the said Code; (iv) a person who desires to execute an order of the School Tribunal 13 has to approach the Tribunal for execution and then it is the duty of the Tribunal to either execute the order itself or if it is found necessary, to transfer it for execution to Civil Court in accordance with the provisions of the said Code. 12. The same issue was considered by a Full Bench of this Court in the case of St.Ulai High School and another Vs. Devendraprasad Jagannath Singh and another [2007(1)-Mh.L.J.-597. The Full Bench had an occasion to consider the scope of powers conferred on School Tribunal under the said Act of 1977. This Court considered the decision of learned Single Judge in the case of Mohammad Salam Anamul Haque (supra). Paragraph 12 of the decision of the Full Bench specifically deals with the powers to enforce the orders of the School Tribunal. After considering the law on the aspect, the Full Bench approved the decision in the case of Mohammad (supra) holding that the order passed by the Tribunal would satisfy the description of that expression in section 2(14) of the said Code. The Full Bench quoted following portion of the decision in the case of Mohammed (supra) with approval. What is approved by the Full Bench in the said decision reads thus:- "Therefore, when the School Tribunal makes an order for reinstatement and for payment of back wages, the appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation either the tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code. 14 It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the provisions of the Civil Procedure Code." Thus, the law laid down by the Full Bench of this Court is that the School Tribunal which possesses certain powers under section 107 of the said Code can pass an order which can be termed as an order within meaning of sub section 2 of section 14 of the said Code. 13. Now, turning back to the provisions of the said Act, Chapter-VIII contains the procedure which applies to section 24 of the said Act. Under sub- section (2) of section 40 it is provided that a person can be appointed as a Competent Authority who has held the office which is not lower in rank than that of a Deputy Collector or who is holding or has held the post of a Civil Judge, Junior Division or who has been an advocate for not less than five years. 14. Under section 42 of the said Act it is provided that an application under section 24 is required to be signed and