Bombay High Court
Darshansing Indarsing Sodhi And ... vs Podar Education And Sports Trust ... on 3 October, 2016
Bench: T.V. Nalawade
WP No. 8823/2016
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
947 WRIT PETITION NO. 8823 OF 2016
DARSHANSING INDARSING SODHI AND ANOTHER
VERSUS
PODAR EDUCATION AND SPORTS TRUST THROUGH ITS
MANAGINGTRUSTEE PAWAN PODAR AND ANO
...
Advocate for Petitioners : Murkute J.M.
AGP for Respondent 2 : S.N. Kendre
Advocate for Respondent 1 : S.B. Deshpande
...
ig CORAM : T.V. NALAWADE, J.
DATED : 3rd October, 2016.
ORDER :
1. The petition is filed to challenge the judgment and
order of Revision No. 244/2015, which was pending before the
learned Additional Commissioner, Aurangabad Division,
Aurangabad. The revision was filed against the order made by
the learned Deputy Collector, Aurangabad in Rent Application
No. 1/2014. The proceeding is dismissed by the authority in
revision by holding that it is not tenable before the competent
authority under the Maharashtra Rent Control Act, 1999
(hereinafter referred to as 'the Act' for short). Both the sides are
heard.
2. Under the leave and licence agreement made in the
year 2007, the petitioners had given their property bearing plot
Nos. 1, 4 and 26 situated at Shahanurwadi Chowk, Aurangabad
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for the period of five years. Under the agreement, there are
some terms, giving right to the party to extend the period and
there are also terms and conditions that licensee will be liable to
pay compensation, if licensee continues possession, when there
is no continuation of licence period. In view of the points
involved in the present matter, other terms and conditions of the
agreement are not discussed.
3. In
the proceeding which was filed under the
provisions of sections 24 r/w. 42 of the Act, the licensee filed
application contending that the competent authority created
under the Act has no jurisdiction over the matter as the premises
was given to the licensee for running school and it was not given
for residential purpose. The learned Deputy Collector, the
competent authority created under the Act, rejected the
application of the present respondent by holding that there was
jurisdiction to the competent authority. This decision is set aside
by the learned Additional Commissioner and it is held that as the
premises is given to run the school under the licence, there is no
jurisdiction to the competent authority.
4. This Court has carefully gone through all the
provisions of the Act to see the scheme of the Act. The scheme
shows that in the State, where there are Small Causes Courts,
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jurisdiction is given to Small Causes Court and where there is no
Small Causes Court, the jurisdiction is given to the Court of Civil
Judge, Junior Division. Even if there are Courts, the matters
would lie before the competent authority created under the Act,
u/s. 40 of the Act for subject matters mentioned in Chapter VIII
of the Act. The Small Causes Court and the Court of Civil Judge
Junior Division will not have jurisdiction if the jurisdiction is
specifically given to the competent authority under the Act. If
there is no such authority established by the State Government,
then there would be the jurisdiction in respect of those subject
matters also to the Small Causes Court or to the Court of Civil
Judge, Junior Division, as the case may be. The relevant
provisions are being quoted hereinafter.
5. In section 7 (1) of the Act, 'competent authority' is
defined and it says that 'competent authority' means the
competent authority appointed under section 40 of the Act. For
the present matter, the provisions of Chapter VII and VIII of the
Act are relevant and the remaining provisions for other special
categories need not be considered. In section 33 (1), which is a
part of Chapter VII of the Act, it is made clear that the
jurisdiction of Courts (Small Causes Court and Court of Civil
Judge, Junior Division) given under section 33 is subject to the
provisions of Chapter VIII of the Act. The provision of section 39
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which is part of Chapter VIII runs as under :-
"39. Provisions of this Chapter to have
overriding effect.- The provisions of this Chapter
or any rule made thereunder shall have effect
notwithstanding anything inconsistent therewith
contained elsewhere in the Act or in any other law
for the time being in force."
6. Section 40, which is again a part of Chapter VIII of
the Act shows the power is kept with the State Government to
appoint competent authority for exercising power under Chapter
VIII of the Act. The notification No. MRA-2000/C.R.-14/Bhanika
dated 19.5.2000 shows that for Aurangabad Municipal
Corporation area S.D.O. (Sub Divisional Officer of the Revenue
Department) is appointed as competent authority.
7. In section 41 of the Act, the definition of 'landlord' is
given and it is made clear that this definition is for the purpose
of only the provisions of Chapter VIII of the Act. In view of these
provisions of the Act, the definition of 'landlord' given in section
7 (3) of the Act cannot be used for the purpose of provisions of
Chapter VIII of the Act. The relevant provision of section 41 (c) is
as under :-
"41. Definition of landlord for the purpose of
Chapter VIII.- For the purpose of this Chapter,
landlord means a landlord who is.-
(a) .........
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(b) .........
(c) a person who has given premises on licence
for residence or a successor-in-interest referred to
in Section 24."
This provision shows that the licensor, who has given premises
for residential purpose only can file a proceeding before the
competent authority created under Chapter VIII. Section 24 is
also mentioned in section 41 (c) of the Act and that section runs
as under :-
"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
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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
person who is not a licensee according to the
agreement of licence.
Explanation.- For the purpose 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."
8. The aforesaid provision, section 41 (c) of the Act
shows that only if the premises is given for residence purpose
under licence, the matter will fall under Chapter VIII of the Act. In
that case, only competent authority will have jurisdiction and the
Court of Small Cause or Court of Civil Judge, Junior Division will
not have jurisdiction. As in the present matter, admittedly the
premises was given to present respondent to run educational
institution, it was not given for residence purpose and so, the
subject matter does not fall under the provision of Chapter VIII of
the Act. The provisions of section 42 and 43 mention the
procedure which is required to be followed for getting relief from
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the competent authority and so, those provisions need not be
discussed. The provision of section 43 (4) of the Act shows the
restriction on the rights of the licensee and the necessity for
licensee to seek permission, leave of the competent authority to
defend the proceeding filed before the competent authority. The
provisions of Chapter VIII of the Act shows that the proceeding is
of summary nature. It appears that the present petitioners want
to use this procedure due to the nature of procedure mentioned
in Chapter VIII of the Act. As the subject matter itself does not
fall under Chapter VIII of the Act, this Court holds that the
learned Additional Commissioner has not committed any error in
allowing the revision and dismissing the proceeding which was
filed before the competent authority. There is no room to
interfere in the order made by the learned Additional
Commissioner.
9. In the result, the petition stands dismissed.
[ T.V. NALAWADE, J. ]
ssc/
