1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLN. NO. 450 OF 2007 CIVIL REVISION APPLN. NO. 450 OF 2007 CIVIL REVISION APPLN. NO. 450 OF 2007 Rafiq Ahmed Suleman Oomer ... Petitioner (Orig. Respondent) Versus Mr. Inayat Kapasi ... Respondent (Orig. Applicant) Mr. R.A.Thorat, & Mr.P.J.Thorat, Advocates, for the petitioner. Mr.Inayat Kapasi,respondent, in person. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 21st January, 2008. DATE : 21st January, 2008. DATE : 21st January, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for the revision-petitioner and the respondent in person. Perused the copies of the documents produced along with the Revision Application. 2. To state in brief, the respondent is the licensor/landlord of the suit flat No.22, Dharam Jyot, 3, Shirley Rajan Road, Bandra (W), Mumai 400 050. According to the respondent, as per the agreement which was executed and registered on 4.11.2004, the present 2 petitioner was inducted as a licensee in respect of the suit flat. The period of license was to begin from 4.11.2004 and was to expire on 30th September, 2005. The petitioner was to pay Rs.9,000/- per month as compensation for use and occupation of the premises. He was also to hand over possession of the suit flat tothe licensor on the expiry of the license period. The license was also liable to be terminated subject to notice of one month from either side. The respondent filed an application which was registered as Application No. 35 of 2005 before the Competent Authority under the Maharashtra Rent Control Act for eviction after having given a notice to the present petitioner. 3. The present petitioner contested the said application contending that the summary proceeding could not have been adopted nor the Competent Authority was having jurisdiction to deal with the property particularly because about the suit property, there is no registered document showing that the leave and license agreement was entered into in respect of the suit property. According to him, there was an oral agreement whereby he was to pay compensation of Rs.9,000/- and the security deposit of Rs.50,000/-. It was agreed that if the present petitioner desired, he could purchase the suit premises for consideration of Rs.10 lakhs. 3 According to him, he had offered to purchase the property and, therefore, he had stopped payment of compensation amount. 4. After hearing the parties, the Competent Authority held that there was an agreement of leave and license between the parties pertaining to the suit property The petitioner has failed to pay the compensation and he has failed to prove any agreement under which he was to purchase the suit property. In the result, an order for eviction was passed. Against that order, the present petitioner preferred an appeal under Section 44 of the Maharashtra Rent Control Act before the Additional Commissioner. The appeal also came to be dismissed. Hence, he has preferred the present Revision Application. 5 Before the appellate Court as well as before this Court, the petitioner has mainly raised the following points :- (i) There is no written registered agreement pertaining to the suit property and, therefore, in view of Section 55(2) of Maharashtra Rent Control Act, the terms as pleaded by the licensee should prevail. 4 (ii) The suit premises are given for commercial purpose and, therefore, Section 41 does not give jurisdiction to the Competent Authority to pass an order. (iii) The registered leave and license agreement which is relied upon by the respondent is pertaining to different premises i.e. Flat No.64, Monalisa, St. John Baptista Road, Bandra (W), Mumbai-400 050 and not pertaining to the suit property which is flat no.22, Dharam Jyot, 3, Shirley Rajan Road, Bandra (W), Mumbai 400 050. The registered document is the conclusive evidence in view of Section 24 and cannot be presumed that the said agreement is for suit property. 6. I have carefully considered the arguments advanced by the learned Counsel for the petitioner. Section 24 of the Maharashtra Rent Control Act, 1999 reads as follows :- "24. Landlord entitled to recover possession of premises given on licence on expiry. 5 (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. (3) The Competent Authority shall not entertain any claim of whatever nature from any other 6 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." 7. From the language of Section 24, it is clear that the special provision incorporated in Section 24 is applicable only when the premises are given to the licensee on licence for residence and not for commercial purpose. The agreement of license has to be in writing and that agreement of licence in writing shall be the conclusive evidence of facts stated therein. This provision was particularly meant to avoid lengthy procedure and long drawn litigation. If the licensor seeks to get back the possession of the premises given to the licensee for residence under the agreement of license, summary procedure has been provided for such 7 eviction under Chapter VIII of the Maharashtra Rent Control Act. 8. In the present case, admittedly, the leave and license agreement was not only reduced to writing and executed, but it was also registered. The terms of the agreement are not in dispute. It may be noted that even though the petitioner had contended before the Competent Authority that he had entered into an agreement to purchase the property for consideration of Rs.10 lacs, there was no document to support tha plea. This claim has not been pressed before this Court during the arguments in revision. 9. The learned Counsel for the petitioner vehemently contended that in view of the provisions of Section 24, the document is the conclusive evidence of its contents and the leave and license agreement relied upon by the respondent is pertaining to different property i.e. Flat no.64, Monalisa and not about suit flat No.22, Dharam Jyot. According to the respondent, this is a mistake in typing and in fact, he himself was living in Monalisa building and the flat which was given on license is flat No.22 Dharam Jyot. In the license agreement the residential address of the respondent is shown as flat No.22, Dharam Jyot and the property to be given on 8 license is shown as flat No.64 Monalisa building. It is material to note that in para 32, it is mentioned that if any notice is required to be served, it shall be served on the licensee at 22 Dharam Jyot-3 Bandra. If the flat to be given on licence to the petitioner would be 64 Monalisa, the address of 64 Mnoalisa would have been shown as address on which the notice could be served on the licensee. In addition, in the said clause, it is mentioned that the notice to the licensor/landlord may be served at 98 Monalisa, Bandra. It is not the case of the petitioner that he has entered into more than one leave and license agreements with the respondent and that one of such properties is also 64, Monalisa. If he would be occupying the suit flat being flat no.22, Dharam Jyot as well as the flat No.64 Monalisa, he could contend that the leave and license agreement relied upon by the landlord pertains to 64 Mnoalisa and not the suit property. However, admittedly, the petitioner is occupying only the suit flat i.e. 22 Dharam Jyot belonging to the respondent. He admittedly is not in occupation of 64 Monalisa. In view of these circumstances, in my considered opinion, the competent authority rightly came to the conclusion that in the title of leave and license agreement, the description of the property was wrongly shown as flat No.64 Monalisa. If a mistake of fact has been committed in writing the 9 document that mistake can be explained and proved. Taking into consideration the facts noted above, I find that the Courts below were right in holding that the leave and license agreement pertains to suit flat i.e. flat no.22 Dharam Jyot and not about the flat No.64 Monalisa. 10. It is further contended by the learned Counsel for the petitioner that summary procedure is not applicable in respect of commercial premises and it is applicable only to premises given on licence for residence purpose and when such premises are given for residence purpose, the competent authority gets authority under Chapter VIII of the Maharashtra Rent Control Act. There can be no dispute about this legal provision. According to the learned Counsel for the petitioner in the present case, there is nothing to show that the suit flat was given to the petitioner for residence purpose. According to him, it was given for commercial purpose as he was carrying on business of broker. It is material to note that in clause 12 of the agreement, it is specifically mentioned that the said premises shall be used for the exclusive use of the licensee and his family members. According to the landlord, the building is constructed only for residential purpose and it cannot be used for commercial purpose. Taking into consideration 10 the oral evidence of the landlord and the terms of the agreement, I am unable to accept the contention of the learned Counsel for the petitioner that the suit premises were given on license for commercial purpose and not for residential purpose. 11. As the leave and license agreement has, in fact, been registered under Section 55(1), the contention of the petitioner-licensee about terms of the leave and licence cannot prevail over the terms of the agreement. Therefore, the objection taken under Section 55(2) is not tenable. 12. Admittedly, after dismissal of the appeal of the present petitioner and pending the present Revision Application, as the order of status quo was not communicated to the respondent, he has already executed the decree and has taken possession of the suit premises. The learned Counsdel for the respondent makes a statement that while giving possession to the respondent a panchnama was drawn abd tge respondent has no objection to return the articles which were found in the house at the time when possession was given to him. 13. In view of the facts and legal position stated above, I find no fault in the impugned order. 11 14. In the result, the Revision Application strands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)