1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.199 OF 2000 Tukaram Haribhau Vidhate ……………………………………..Petitioner versus Dhananjay S. Dubey and another……………………..........…Respondents -- Mr.S.S.Kulkarni for Petitioner. Mr.P.N.Joshi for respondent No.2. -- CORAM : A.S.OKA, J. RESERVED ON : 15TH FEBRUARY, 2010 PRONOUNCED ON : 23RD FEBRUARY, 2010 JUDGEMENT :- 1. By This Writ Petition under Article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 26th of February 1999 passed by the Competent Authority appointed under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the said Act”) . 2. The petitioner filed an application under section 13 A (2) or the said Act. The first respondent was the opponent to the said application. In the said application, the petitioner contended that he was the owner of the suit flat. According to the petitioner, the suit flat was given by him to the first respondent on leave and licence for a period of 11 months from 1st 2 April 1996 till 28th of February 1997. Reliance was placed on a leave and licence agreement in writing executed by and between the petitioner and the first respondent in respect of the suit flat. The case made out by the petitioner in the said application for eviction was that on expiry of the agreement of leave and licence , the first respondent did not vacate the suit flat. The said application was contested by the first respondent by contending that in fact he was inducted as the tenant in respect of the suit flat. By judgment and order dated 29th November 1997, the Competent Authority passed an order of eviction against the first respondent by holding that the first respondent was inducted as a licensee in respect of the suit flat. The Competent Authority negatived the contention that the first respondent was the tenant in respect of the suit flat. 3. The petitioner made an application for execution seeking possession of the suit flat in terms of the order of eviction. The second respondent who is the wife of the first respondent made an application that she may be impleaded as party to the said application for execution. It was contended that the suit flat was taken on the rent by the first respondent and that the second respondent was residing with him as his wife. The second respondent contended that from the year 1996, the first respondent started residing separately and she continues to occupy the suit flat. She alleged in the application that the first respondent is acting in collusion with the petitioner and that a view to evict the second respondent , the petitioner and the first respondent deliberately prepared a 3 leave and licence agreement. The said application was opposed by the petitioner. By the impugned order, the said application was allowed by holding that the order of eviction cannot be executed against the second respondent. By the impugned order, the Competent Authority purported to cancel the earlier order of eviction passed on 29th November 1997 and directed that the second respondent should be added as a party to the eviction proceedings. 4. The learned counsel appearing for the petitioner submitted that the Competent Authority committed a serious error by setting aside the order of eviction though no such prayer was made by the second respondent. He submitted that the second respondent is not claiming any independent right in respect of the suit flat. He submitted that the second respondent has no independent right and the theory of matrimonial dispute is totally frivolous. He invited my attention to evidence recorded during eviction proceedings. The learned counsel appearing for the second respondent supported the impugned judgment and order. He submitted that there is a clear collusion between the petitioner and the first respondent and that is why the first respondent has not challenged the impugned order of eviction. He submitted that the Competent Authority was justified in passing the impugned order as the second respondent was in possession. 5. I have given careful consideration to the submissions. From 4 the notes of evidence on record it appears that the eviction application was contested by the first respondent. He cross-examined the petitioner and examined himself. He claimed that he was inducted as a tenant in respect of the suit flat. For reasons recorded, The Competent Authority negatived the contention of the first respondent that he was the tenant in respect of the suit flat. 6. At this stage it will be necessary to consider the averments made in the application made by the second respondent. In the said application she claimed that the first respondent had taken the suit flat on the rental basis from the petitioner. Thereafter she is proceeded to make allegations of collusion against the petitioner and the first respondent. It is stated in the application is that the second respondent was residing in the suit flat. On plain reading of the averments made in the said application, it appears that the second respondent has not claimed any independent right in respect of the suit flat. The only contention raised by the second respondent is that first respondent started residing separately and even thereafter, she continued to occupy the suit flat. The second respondent in her application has specifically stated that the first respondent was the tenant in respect of the suit flat since prior to 1995. The second respondent has not claimed any rights in respect of the suit flat and she claims to be occupying the same as the wife of first respondent. 7. However, in the impugned order, the Competent Authority 5 has observed that the second respondent is residing in the suit flat as a tenant. The said finding is completely contrary to the averments made in the application filed by the second respondent. The second respondent claimed to be in possession as the wife of the first respondent. The fact that the first respondent has filed a petition for divorce will not confer any rights on the second respondent in respect of the suit flat. In absence of any independent right claimed by the second respondent, she could not have obstructed the execution of order of eviction. After a contest by the first respondent, there is already a finding recorded that he was merely a licensee and the period of licence has expired. By the impugned order, the Competent Authority has gone to the extent of setting aside the original order of eviction which was never challenged. What was pending before the Competent Authority was an application for execution of order of eviction. Therefore on application made by the second respondent, the order of eviction could not have been set aside. The impugned judgment and order is perverse and deserves to be quashed and set aside 8. Hence, rule is made absolute in terms of prayer clause (a) with no orders as to costs. JUDGE