1 wp3928 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3928 OF 2011 Abdul Aziz Mohd. Patel ...Petitioner vs. Sushma S.Sharma & Anr. ...Respondents Mr.P.K.Dhakephalkar, Sr.Counsel with Ms Snehal Ratnakar i/b Juris Consills for the Petitioner Mr.V.G.Mehta for the respondent no.1 CORAM : A.S.OKA,J. DATE : NOVEMBER 18, 2011 P.C.: 1 Heard learned senior counsel for the petitioner. The first respondent applied before the Competent Authority under section 24 of the Maharashtra Rent Control Act,1999 (hereinafter referred to as the said Act). The first respondent applied for order of eviction in respect of the suit premises against the petitioner. The suit premises is a flat more particularly described in the said application. Reliance was placed on the leave and licence agreement dated 1st July 2006 executed by the respondent in favour of the petitioner. Reference has been made in the application to various terms and conditions incorporated in the said agreement. It is alleged that the petitioner failed and neglected to pay licence fee from 1st January 2007 to 31st May 2007. It is alleged that in order to make impression that the period of 11 months of leave and licence has been extended, the petitioner had sent 2 wp3928 number of cheques of higher amounts periodically. Reliance is paid on legal notice dated 28th October 2008 calling upon the petitioner to vacate the suit premises and to pay licence fee for the months of January 2007 to May 2007. Reliance is placed on the reply dated 28th January 2009 issued by the petitioner expressing his inability to pay licence fee. Reference is made to the complaint filed by the first respondent under section 138 of the Negotiable Instruments Act,1881 against the petitioner in the Metropolitan Magistrate s Court on account of dishoner of certain cheques. Thus, eviction was sought on the ground that the petitioner was the licensee and the period of licence had expired. An application was made by the petitioner seeking permission to leave to defend. The contention in the said application for leave is that the respondent is not an absolute owner but he is the joint owner of the suit flat. It was contended that the first respondent agreed to sell the suit flat to the petitioner for consideration of Rs.75,00,000/-. It is contended that a sum of Rs.30,00,000/- has been paid in cash to the petitioner and sum of Rs. 9,00,000/- has been deposited in his account. It is alleged that the petitioner never executed the leave and licence agreement as alleged. 2 The Competent Authority rejected the application for grant of leave and proceeded to pass an order of eviction. A revision application was preferred by the petitioner before the Divisional Commissioner. The revision application has been rejected. 3 wp3928 3 The submission of the learned senior counsel for the petitioner is that the very execution of leave and licence agreement was denied by the petitioner in his application for seeking leave to defend and his contention was that the transaction was of the sale of the suit flat. He submitted that in the reply to the notice dated 27th October 2008, there is no admission of relationship of licensor and licensee and in fact in the the application for leave to defend, it was pointed out that the petitioner was in London from where the reply was sent in connection with dispute regarding payment of sale price. He submitted that when the existence of the leave and licence agreement on which the first respondent had relied upon was disputed, triable issues were raised and accordingly, a leave to defend ought to have been granted. His submission is that without giving an opportunity to defend and to lead evidence, straight away an order of eviction has been passed. He submitted that as the agreement for leave and licence was not registered, the presumption under Explanation (b) to section 24 of the said Act will not be applicable. Even assuming that there is a leave and licnece agreement, in absence of availability of the statutory presumption, Competent Authority ought to have granted leave to defend. 4 I have given careful consideration to the submissions. I have perused the application for eviction filed under section 24 of the said Act as well as the application for leave to defend filed by the petitioner. I have perused the notice issued by 4 wp3928 the Advocate for the first respondent on 27th October 2008. In the said notice, specific reliance is placed on the leave and licence agreement dated 1st July 2006 by which licence to occupy the suit premises was granted for a period of 11 months. It is pointed out that the petitioner has committed default. Reference is made to dishonour of subsequent cheques issued by the petitioner. Reply was sent by the petitioner on 28th January 2009. As stated earlier, in paragraph 1 of the notice dated 27th October 2008, there is a specific reference to leave and licence agreement dated 1st July 2006 and the fact that the petitioner was in arrears of licence fee and compensation. A reference was also made to the dishonour of the cheques in the sum of Rs.1,10,000 and Rs.2,66,200/- issued by the petitioner. In the notice it was alleged that the cheque in the sum of Rs.1,10,000/- was for licence fee from 1st January 2007 to 31st May 2007 and the other cheque in the sum of Rs.2,66,200/- was for further period. In the reply dated 28th January 2009 there is not even a contention raised therein that there was no leave and licence agreement executed and that in fact there was an Agreement for sale. Most importantly, it is not even stated in the application for leave that the said reply refers to transaction of sale. As pointed out earlier, there is absolutely no denial of execution of the leave and licence agreement in the said reply dated 28th January 2009. Perhaps, the only ground set out in the application for leave is that there was oral agreement for sale of the suit flat and that the petitioner had not executed the leave and licence 5 wp3928 agreement. Considering the documents forming part of the application and especially the reply of the petitioner to the notice which was not disputed, the Competent Authority came to the conclusion that the execution of the leave and licence agreement was admitted and therefore, the Competent Authority declined to grant leave to defend. 5 Whether the presumption under explanation (b) of Section 24 is available or not is a different matter but the finding recorded by the Competent Authority is that existence of leave and licence agreement was not at all disputed by the petitioner. The presumption under clause (b) is that the leave and licence agreement shall be the conclusive evidence of the facts stated therein. The view taken by this Court in the case of Amit B. Dalal Vs.Rajesh K. Doctor [2011 (2) Bom.C.R. 348] is that notwithstanding the non-registration of a written leave and licence agreement, the presumption under clause (b) of explanation to section 24 is still available and application under section 24 of is maintainable. The petitioner pleaded oral agreement for sale. To establish and to enforce the oral agreement for sale of the suit flat, it is for the petitioner to take out appropriate proceedings in that behalf. Once, the leave and licnece agreement is not disputed, it is obvious that the possession of the petitioner in respect of the suit flat was referable to the leave and licence agreement and not the alleged agreement for sale. On the expiry of period of licence, the eviction must follow. Moreover, a cheque issued by 6 wp3928 the petitioner for licence fee of the period from 1st January 2007 to 31st May 2007 was dishonoured. 6. Hence, no fault can be found with the impugned orders. The petitioner has invoked the jurisdiction of the Court under Article 227 of the Constitution of India. Writ Petition is rejected. 7 However, it is made clear that no adjudication has been made as regards the alleged agreement for sale and all questions in that behalf and the remedy of the petitioner are kept open. 8 On the prayer made by the learned senior counsel for the petitioner, ad-interim relief granted earlier will continue to operate for a period of 12 weeks from today subject to condition that the petitioner will not part with possession of the suit premises and shall not create any third party rights in respect of the suit premises. JUDGE