Judgment:
ORDER
R.M.S. Khandeparkar, J.
1. By the present petition, the petitioner is challenging the order dated 25th October, 1991 passed by the competent authority at Pune whereby the application filed by the petitioner under section 13-A-2 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter called as 'the said Act'), was dismissed.
2. The facts in brief relevant for the decision are that the petitioner herein is the owner of a flat being Flat No. 3 in Umesh Building of Krutarth Co-operative Housing Society situated in the plot bearing Survey No. 692/693 within the limits of Pune Municipal Corporation and the district of Pune. The respondent is the younger, brother of the husband of the petitioner and was allowed to use the suit flat for his occupation by virtue of an agreement dated 5th October, 1990 on condition that he should cease to occupy the same on or before 31st April, 1991. Since the respondents failed to vacate the suit flat even after the expiry of the stipulated time, the petitioner filed anapplication under section 13-A-2 r/w section 31D of the said Act for eviction of the respondent. The summons of the said proceedings was served upon the respondents on 11-7-1991. However, no application in terms of section 31-E(4)(a) of the said Act was filed by the respondent to seek leave to contest the proceedings within the prescribed period. However, after the expiry of the said period and on 17th August, 1991 the respondent filed an application to seek leave to file the written statement which was rejected by the competent authority by its order dated 30th September, 1991. Moreover, thereafter the competent authority by the impugned order dated 25-10-1991 dismissed the application of the petitioner on the ground that the agreement referred to in the application does not disclose that the permission for occupation on the suit land was on payment of licence fee or charges and, therefore, the respondent cannot be evicted from the suit premises under the said Act.
3. The learned advocate appearing for the petitioner while reading the impugnedorder drew my attention to section 31-E(4)(a) of the said Act and submitted that interms thereof it was necessary for the respondent to seek leave of the competentauthority to contest the proceedings by filing application to that effect within a periodof 30 days from the date of service of summons and the respondent having failed todo so, the competent authority had in fact rejected the respondent's application forleave to file written statement thereafter by order dated 30th September, 1991. In thefacts and circumstances of the case, it was not permissible for the competent authorityto reject the application of the petitioner on some extraneous grounds. The applicationof the petitioner clearly discloses that the respondent was permitted to occupy the suitfiat on licence basis. The licence period had expired on 31st April, 1991. Therespondent however had continued to occupy the premises. Thereafter the applicationfor eviction was filed, and yet the respondent had failed to apply for leave to contestthe proceedings for eviction. The competent authority in the circumstances had nojurisdiction to dismiss the application filed under section 13-A-2 on the ground that theagreement between the parties does not disclose license fees. The competent authorityhas acted in excess of its jurisdiction by dismissing the application and; therefore, theimpugned order should be set aside, and the application filed by the petitioner shouldbe allowed.
4. The learned advocate for the respondent on the other hand submitted that it was necessary for the petitioner, to produce the necessary 'agreement of licence alongwith the application for eviction and accordingly he had filed the same which was in the form of affidavit dated 5th October 1990 and the competent authority on perusal thereof has rightly interpreted the same to be not an agreement of licence. Therefore, there is no case made out of any sort of improper exercise of jurisdiction by the competent authority while dismissing their application. He further submitted that even though the respondent had failed to obtain the leave to contest, the proceedings, nothing prevented the competent authority from applying its mind to the materials on record and to hold that the respondent was not the licensee and therefore cannot be evicted in a proceeding under section 13-A-2 read with section 31-E(4)(a) of the said Act. He further submitted that in any case the provisions introduced in the said Act by way of section 31-E were introduced with effect from 1st October, 1987 and admittedly the agreement of licence was effective from the year 1985 much prior to the date of coming into force of the amended section 31 -E of the said Act. Placing reliance upon the judgment of learned Single Judge of this Court in the matter of Afsar Shaikh v. P.N. Kaul & another, reported in : 1997(2)BomCR456 , the learned advocate for the respondent submitted that this Court hasalready held that the said provision will have no retrospective effect and, therefore, the application filed by the petitioner in the instant case was not maintainable.
5. Perusal of the impugned order discloses that the summons in relation to the application filed by the petitioner under section 13-A-2 was served upon the respondent on 11th July, 1991. The respondent, for the first time on 17th August, 1991 filed an application seeking time to file the affidavit and the written statement. The said application was rejected by the competent authority on 30th September, 1991. The impugned order further discloses that in paragraph 4 of the application filed by the petitioner, it has been stated by the petitioner that the petitioner executed licence agreement on 5th October, 1990 and agreed to hand over the possession of the suit flat at the end of April, 1991. The impugned order further discloses that the application tiled by the petitioner was rejected on the ground that the licence agreement which was found in the form of affidavit dated 5th October, 1990 does not disclose any payment of licence fees or charges and, therefore, the petitioner was not entitled for eviction in the said proceedings.
6. Section 31-E(4)(a) of the said Act reads as under:
'The tenant or licensee on whom the summons is duly served (whether in the ordinary way or by registered post in the manner laid down in sub-section(3), shall not contest the prayer for eviction from the premises unless, within thirty days of the service of summons on him as aforesaid, he files an affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid.'
7. On plain reading of the said section, it is apparent that when an application is filed by the licensor against licensee for the eviction of the licensee, the later shall within 30 days from the date of service of the summons in relation to such application file an affidavit stating grounds on which the licensee seeks to contest the application for eviction and further obtain leave from the Competent Authority to defend the proceedings. The said section further provides that in case of default in appearance by the licensee inspite of service of summons or in case of failure to obtain the necessary leave form the Competent Authority, the statement made by the licensor in the application for eviction shall be deemed to have been admitted by the licensee and the licensor shall be entitled for an order of eviction of the licensee on that ground itself. In other words, in an eviction proceedings instituted under section 13-A-2 r/w 31D of the said Act, section 31-E(4)(a) of the said Act provides a ground for eviction of the licensee in case of his or her failure to disclose sufficient ground to contest eviction proceedings and to obtain necessary leave to defend the same inspite of service of summons regarding such application for eviction of the licensee.
8. In the case in hand it is not in dispute that the respondent was duly served on 11th July, 1991 with the summons of the application filed by the petitioner u/s. 13-A-2. It is also not in dispute that within 30 days therefrom, no affidavit stating grounds for contest was filed by the respondent. It is also undisputed fact that no leave to defend was sought by the respondent within the said period of 30 days from the Competent Authority to contest the proceedings. Added to this, the attempt to seekfurther time to file the affidavit and written statement by the respondent had proved futile in terms of order dated 30th September, 1991 passed by the Competent Authority. There was no reaction of whatsoever nature by the respondent against the said order. It is also not in dispute that the application filed by the petitioner disclosed the fact that the respondent was allowed to occupy the suit flat and for that purpose the parties had executed an agreement dated 5th October, 1990 wherein the respondent had agreed to vacate the premises by the end of April, 1991. Indeed, the relevant averments in paragraph 4 of the application read as under:
'The opponent executed licence agreement in the form of affidavit dated 5-10-1990 and agreed to handover possession of the said flat to the applicant on or before 31-4-1991 i.e. the end of April, 1991. Thus, the period of the licence granted by the Applicant to the Opponent in respect of the said flat expired on the expiry of 31-4-1991 i.e. the end of April, 1991.'
9. Considering the provisions contained in section 31-E(4)(a) and the facts of this case, it is clear that the Competent Authority had no option in the instant case than to allow the application filed by the petitioner u/s. 13-A-2. Once the fact of service of summons and failure on the part of the respondent to file necessary affidavit and to obtain leave within the statutory period is not disputed, as also the fact that the necessary averments being available in the application filed by the petitioner for invocation u/s. 13-A-2 r/w. section 31E(4)(a) being not in dispute, the Competent Authority as rightly submitted by the learned advocate for the petitioner, ought to have considered that it had no other function left in the instant case than to proceed to pass an order of eviction of the respondent from the suit premises. The Competent Authority, by proceeding to analyse the agreement in the form of affidavit and to construe it to say that there is no disclosure in the said agreement regarding the payment of licence fees or charges and that therefore the petitioner is not entitled for the order of eviction against the respondent, in my considered opinion, has clearly acted in improper exercise of its jurisdiction and on the extraneous grounds which the Competent Authority was not entitled to consider while exercising its jurisdiction u/s. 13-A-2 of the said Act. In the facts and circumstances of the case the learned advocate for the respondent did try to submit that the petitioner was bound to file a copy of the Agreement of Licence alongwith the application of eviction and therefore, the Competent Authority was within its jurisdiction in perusing the agreement in the form of affidavit and to interpret the same to find out whether it is a licence or not. The learned advocate however, was unable to point out any provision of law under the said Act or Rules made thereunder which makes it compulsory for an applicant approaching the Competent Authority u/s. 13-A-2 to file a copy of the Agreement of Licence with the application for eviction of a licensee. There is no provision in the said Act which makes it compulsory for an applicant to file any such copy of the Agreement. Even otherwise in the case in hand it cannot be said that the Competent Authority was entitled to look into the materials other than the application for eviction more particularly in view of the clear provisions in section 31-E(4)(a) regarding the consequences on default of appearance after service of summons and on failure to obtain of leave to contest by filing proper affidavit. The provision in the said section clearly states that the statement made by the applicant in the application for eviction shall be deemed to be admitted by the licensee on failure of the licensee to obtain leave to contest the proceedings.
10. The learned advocate for the respondent contended that the provisions contained in section 13-A-2 are not retrospective in nature and Agreement for Licence in the instant case being admittedly effective from the year 1985 and the said section 13-A-2 having come into force with effect from 1st October, 1987, the said provision would not apply to the case in hand. The learned advocate sought to place reliance in the case of Afsar Shaik v. P.N. Kaul & another, (supra) in support of his contention. The submission is devoid of substance. In the decision relied upon by the learned advocate for the respondent, it is observed as under (Para 7 p. 461 Bom.C.R.):
'However, present case is not a case where this controversy is involved. On the face of the averments made in the application in the present case by licensor it is not shown that the licence created w.e.f. 1-10-1983 continued or was in existence on and after 1-10-1987 when section 6(4) and 13A(2) were introduced. Rather it is a specific case set-out by the licensor in the application made under section 13A(2) that the period of licence expired on 1-8-1986 as per the agreement and licensor requested licensee on various occasions to vacate the premises on expiry of the licence agreement but, he did not vacate the same and continued to occupy the premises illegally. Thus, it is not a case set-out by the licensor in the application that on 1-10-1987 the licence created in favour of licences w.e.f. 1-10-1983 for a period of 33 months and expired on 1-8-1986 continued to exist and subsist on or after 1-10-1987. The Competent Authority has also held that the agreement provided the period of 33 months w.e.f. 1-10-1983 had expired before the commencement of the proceeding. Thus, it is clear that the licence, according to licensor, came to an end on 1-8-1986 and it was not subsisting on 1-10-1987. In this view of the matter in the present case the question referred by me in Civil Revision Application No. 210/89 does not arise.
On the other hand, the present case is covered by the third category carved out by Shri M.L. Dadhat, J., in Ravindranath H. Hiremath's case (supra) in respect of licences created prior to 1-10-1987, and terminated prior to 1-10-1987, that section 13A(2) is not applicable. I find myself in respectful agreement with this view of Justice Dudhat in Ravindranath H. Hiremath's case (supra) that amendment to the Bombay Rent, Hotel, Lodging House Rates (Control) Act by Maharashtra Act No. XVIII of 1987 introduced on 1-10-1987 is not applicable in respect of licences created prior to 1-10-1987 and terminated prior to 1-10-1987 or which came to an end by efflux of time prior to 1-10-1987 or such licences which were not subsisting or existing on 1-10-1987.'
11. It is thus clear that ratio of the said decision is that the amended provision in section 13-A-2 will be applicable to the cases wherein the licence was either subsisting on the date when the said amended provision came into force or when the licence is either terminated after the said date or which came into force after the said date. In other words, if the licence was subsisting on 1st October, 1987 and is terminated thereafter or the licence itself came into force thereafter then the provisions contained in section 13-A-2 would be applicable. It is not disputed that the licence in question was to come to an end much after the enforcement of section 13-A-2 of the said Act. In other words therefore, the licence was subsisting on the date when the said amended provision came into force. The arguments sought to be raised by the learned advocate for the respondent are therefore without any substance.
12. In the result, therefore, the interim order is liable to set aside and the applicator filed by the petitioner under section 13-A-2 for evicting the respondents from the suit premises is to be allowed.
13. The petition therefore succeeds. The rule is made absolute in above terms. The respondent to pay cost of Rs. 1000/- to the petitioner.
14. At the request of the learned advocate for the respondent, time is granted to the respondent to vacate the suit premises till 31st May, 1999 subject however, to the respondent filling an undertaking in writing in this Court within a period of 6 weeks to the effect that the respondent shall hand over peaceful/ vacant possession of the suit premises to the petitioner on or before 31st May, 1999 and will not induct any stranger in the suit premises nor will create any third party interest in the suit premises so also would not part with the possession of the suit premises in favour of any stranger.
15. Petition succeed.