Bombay High Court
Mr. Mumtaz Ahmed Shaikh Mohd. ... vs Mrs. Shabnam Murtuza Abdul A ... on 23 November, 2021
Bench: A.S. Gadkari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8193 OF 2019
Mr.Mumtaz Ahmed Shaikh Mohd. Shaikh ]
Room No. F/N/O/G/7/5/24 ]
Bhartiya Kamla Nagar, ]
S.M. Road, Salt Pan Road, ]
Antop Hill, Mumbai - 400 037. ] ... Petitioner.
V/s.
Mrs.Shabnam Murtuza Abdul A Gafoor Shaikh ]
Shanker Kokate building ]
2nd Floor, Room No.3, ]
Khadipar Rasoolabad, Bhiwandi, ]
District - Thane. ] ... Respondent
Mr.Shashank Choudhary i/b. Ms.Archana Bhasare, Advocate for Petitioner.
Mr.Bhavesh Parmar i/b. Mr.Devmani Shukla, Advocate for Respondent.
CORAM : A.S. GADKARI, J.
RESERVED ON : 7th September, 2021.
PRONOUNCED ON : 23rd November, 2021.
JUDGMENT :-
1. Rule. Rule made returnable forthwith. By consent of learned
counsel for respective parties, taken up for final hearing.
Heard Mr.Choudhary, learned counsel for the Petitioner and
Mr.Parmar, learned counsel for the Respondent. Perused record.
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2. Petitioner, Licencee has invoked jurisdiction of this Court under
Article 226 and 227 of the Constitution of India, impugning the concurrent
findings recorded by both the Authorities below, constituted under the
provisions of Maharashtra Rent Control Act, 1999 (for short, "Rent Act").
By the impugned Order dated 6 th May 2019 passed in
Appeal/Desk/MRCA/Rev/777/2018, under Section 44 of the Rent Act, the
Additional Commissioner, Konkan Division, Mumbai (Revisional Authority)
has confirmed the Judgment and Order dated 14 th September, 2018 passed by
the Competent Authority (Rent Act), Konkan Division, Mumbai in Case No.17
of 2018, under Section 24 of the Rent Act, thereby allowing the said
Application filed by the Respondent/licensor.
3. Record reveals that, Respondent and Petitioner entered into and
executed a 'Leave and Licence Agreement' dated 22 nd September 2008
pertaining to the suit premises of which the Respondent is owner/lawful
occupier, for a period commencing from 01/09/2008 upto 01/08/2009. As
per the terms and conditions of the Agreement, the Petitioner paid
Rs.10,000/- towards security deposit and agreed to pay compensation
(including water and electricity bills) to the Respondent. The said Agreement
has been duly attested by the Notary, Government of India.
4. It is the case of the Respondent that, the Petitioner failed to
comply with the terms and conditions of 'Leave and Licence Agreement' and
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paid compensation upto June 2009 only. Respondent therefore on 10 th
September 2009 issued a notice to the Petitioner and called upon him to
handover licenced premises along with arrears of compensation. Petitioner
replied the said notice by his reply dated 16 th September 2009. Record
indicates that, the Petitioner instead of vacating the suit premises filed a Suit
bearing S.C. Suit No. 2307 of 2009 in the City Civil Court at Mumbai for
injunction against the Respondent. The learned Judge of the City Civil Court,
Gr. Mumbai by its Judgment and Order dated 7 th October 2015 was pleased to
decree the said suit and restrained the Respondent and her husband, who
were defendants in the said Suit from interfering or obstructing peaceful
possession or enjoyment of the Petitioner from the suit property till he is
evicted in due course of law.
5. Respondent thereafter filed an application under Section 24 of
Rent Act against the Petitioner for recovery of possession of the suit premises
as well as compensation in respect of suit premises, before the Competent
Authority (Rent Act), Konkan Division, Mumbai bearing Case No. 17 of 2018.
After receipt of notice/summons from the Competent Authority, the Petitioner
appeared before it and filed an application for 'Leave To Defend' as
contemplated under Section 43(4) of Rent Act. The Competent Authority by
its Order dated 14th September 2018 rejected the application of Petitioner for
Leave To Defend on the ground that, no triable issues were made out by the
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Petitioner to allow him to defend the said application. By a separate Order
dated 14th September 2018, the Competent Authority allowed the application
filed by Respondent under Section 24 of Rent Act. By the said Order under
Section 24 of Rent Act, the Competent Authority directed Petitioner to
handover vacant and peaceful possession of the suit premises and to pay
arrears of licence fee/compensation till 01/09/2008 @ 1500/- and at double
the rate i.e. Rs.3000/- per month till the vacant possession of the suit premises
is delivered to the Respondent.
6. Feeling aggrieved by the said Orders dated 14 th September 2018
passed under Section 24 of Rent Act so also the Order passed under Section
43(4) of Rent Act thereby rejecting the application of the Petitioner for leave
to defend, the Petitioner preferred Revision Application No.777 of 2018 under
Section 44 of Rent Act before the Additional Commissioner, Konkan Division,
Mumbai. Petitioner raised various grounds before the Revisional Authority
including the ground that, the Competent Authority erroneously rejected his
application for leave to defend under Section 43(4) of Rent Act. The
Revisional Authority by its impugned Order dated 6 th May 2019 rejected the
said Revision Application and confirmed the Order of Competent Authority in
Case No. 17 of 2018.
7. Mr.Choudhary, learned counsel for the Petitioner submitted that,
as a matter of fact the Respondent and her husband, namely, Mr.Murtuza
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Ahmed Abdul Gafoor jointly had executed an 'Affidavit' and a 'General Power
of Attorney' both dated 15th September 1998 in favour of the Petitioner and
since then the Petitioner along with his family members was and is staying in
the suit premises peacefully. He had also started his business of tailoring
therein. That the Respondent subsequently bifurcated the suit premises into
two units (i) a commercial unit adm. 39 ft. x 8 square feet and (ii) a
residential unit adm. 20 ft. x 8 square feet (suit premises). He submitted that,
the husband of Respondent was earlier serving at Saudi Arabia and in the
month of June 2008 he came to India. That for preparation of his new
passport, the Respondent and her husband requested the Petitioner to prepare
fresh documents which would allow them to renew their passports to go for
Hajj pilgrimage. He submitted that, taking into consideration the close
relations between the Petitioner and Respondent and to oblige her, they
executed a Leave and Licence Agreement dated 22 nd September 2008. He
further submitted that, in view of Order passed by the City Civil Court in S.C.
Suit No. 2307 of 2009, the Competent Authority ought not have entertained
the application of Respondent under Section 24 of Rent Act as it had lost the
said jurisdiction due to the Order of injunction granted by the Civil Court. He
further submitted that, the Competent Authority had erroneously rejected his
application for leave to defend and therefore the present matter requires
remand before the Competent Authority by granting leave to defend to the
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Petitioner. He submitted that, there is substantial delay from the date of
issuance of notice by the Respondent and her filing of application before the
Competent Authority without there being an application for condonation of
delay. He therefore prayed that, on these grounds the impugned Order dated
6th May 2019 passed by the Revisional Authority needs to be set-aside by
allowing the present Petition.
8. Per contra, Mr.Parmar, learned counsel for Respondent
vehemently opposed the Petition and submitted that, it is admitted by the
Petitioner that, he executed the said Leave and Licence Agreement dated 22 nd
September 2008 and has also paid compensation upto June 2009. It is due to
the pendency of the Civil Suit filed by the Petitioner in the year 2009,
Respondent rightly did not approach the Competent Authority till its decision
and subsequently Respondent filed application under Section 24 of Rent Act
before the Competent Authority and therefore alleged delay in filing said
application has been properly accounted for. He therefore prayed that, the
present Petition may be dismissed.
9. At the outset, it is to be noted here that, in the said suit filed by
the Petitioner, i.e. S.C. Suit No.2307 of 2009, the Civil Court had restrained
Respondents and her husband from interfering or obstructing peaceful
possession or enjoyment of the suit property mentioned therein till the
Petitioner is evicted by due process of law.
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It is important to note that, there was no prohibition Order by
Civil Court for initiating an action under Section 24 of the Rent Act by the
Respondent-landlord. Respondent-landlord has therefore filed the present
case against the Petitioner for eviction on the basis of a Leave and Licence
Agreement dated 22nd September, 2008 duly executed by the Petitioner and
Respondent.
10. Record reveals that, an Affidavit and a General Power of Attorney
dated 15th September, 1998 were executed by the Respondent and her
husband. The Petitioner is not signatory to the said documents. Petitioner
claims ownership of the suit property on the basis of said two documents. If
by virtue of said two documents, in fact the ownership rights would have been
transferred in favour of the Petitioner by the Respondent and her husband, in
that eventuality there was no need for the Petitioner to execute a Leave and
Licence Agreement dated 22nd September, 2008, on the basis of which,
according to Respondent the Petitioner was given possession of the suit
premises. Therefore the plea of the Petitioner that, by virtue of the said two
documents, she was put in possession of the suit property as a owner of the
same, can not be accepted.
The said two documents are unilaterally executed unregistered
documents and therefore title of the suit property can not be held to be
transferred in favour of Petitioner. In this background, a spacious plea has
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been adopted by the Petitioner for execution of present Leave and Licence
Agreement dated 22nd September, 2008, i.e. document on the basis of which
Petitioner was put in possession by the Respondent. The Leave and Licence
Agreement dated 22nd September, 2008 is a duly notarized document and has
been acted upon by the Petitioner. As noted earlier, Petitioner paid monthly
compensation towards suit premises up to June 2009 and thereafter
discontinued to pay the same.
11. After taking into consideration of the aforesaid facts and perusal
of Order dated 14th September, 2018 passed below under Section 43(4) of the
Rent Act, the Competent Authority has rightly held that, no triable issues were
made out by the Petitioner to allow him to defend the Application by granting
leave under Section 43 of the Rent Act. The Competent Authority therefore
has rightly rejected the said Application.
12. Perusal of record clearly reveals that, the Respondent has proved
his ownership over the suit property by producing an Affidavit dated 13 th
March, 1995 of Mr. Nasrullah Siddique Khan, who was the predecessor-in-title
of the Respondent. In furtherance of the said document, the Respondent was
put in actual possession of suit property by the erstwhile owner and the
Respondent subsequently executed the present Leave and Licence Agreement
dated 22nd September, 2008 with the Petitioner. Record further discloses that,
after expiry of Leave and Licence agreement, the Respondent had issued
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Notice dated 10th September, 2009 to the Petitioner calling upon him to
handover possession along with arrears of compensation. The Petitioner had
replied the said notice by his reply dated 16th September 2009, however, failed
to vacate the suit premises. The Petitioner has not produced on record any
document from which it can be inferred that, he occupies the said premises
otherwise than a licensee.
13. The Supreme Court in the case of Shalini Shyam Shetty & Anr.
Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 , has enumerated
the principles in the exercise of High Court's jurisdiction under Article 227 of
the Constitution of India. It is held that, the High Courts cannot, at the drop
of a hat, in exercise of its power under Article 227 of the Constitution,
interfere with the Orders of tribunals or courts interior to it. Nor can it, in
exercise of this power, act as a court of appeal over the orders of the court or
tribunal subordinate to it. In cases, where an alternative statutory mode of
redressal has been provided, that would also operate as a restrain on the
exercise of this power by the High Court. That, the High Court can interfere
in exercise of its power of superintendence when there has been a patent
perversity in the orders of the tribunals and courts subordinate to it or where
there has been a gross and manifest failure of justice or the basic principles of
natural justice have been flouted.
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It is further held that, in exercise of its power of superintendence,
the High Court cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or courts
subordinate to it, is a possible view. In other words, the jurisdiction has to be
very sparingly exercised. That, the power of interference under this Article is
to be kept to the minimum to ensure that the wheel of justice does not come
to a halt and the fountain of justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the tribunals and courts
subordinate to the High Court.
The afore-stated view expressed in the case of Shalini S. Shetty
(Supra) has been further affirmed by the larger Bench of the Supreme Court
in the case of Radhey Shyam & Anr. Vs. Chhabi Nath and Ors. Reported in
(2015) 5 SCC 423.
14. After considering the material on record, I do not find that the
Authorities below have committed any error in allowing the application filed
by the respondent under Section 24 of the Act. The Petitioner is not in a
position to demonstrate that, the findings recorded by the Authorities below
are perverse, being based upon no evidence or that they are contrary to the
evidence on record. The Petitioners are also not in a position to demonstrate
that no reasonable person would have arrived at the conclusions other than
arrived by the Authorities below. No case is made out for invocation of
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powers under Article 227 of the Constitution of India.
Hence, Writ Petition fails and the same is dismissed with no order
as to costs.
15. Petitioner is directed to comply with directions issued by the
Competent Authority by its Order dated 14 th September 2018 in Case No.17 of
2018 within a period of 30 days from today, failing which the Respondent will
be entitled to adopt appropriate procedure for eviction of the Petitioner from
the suit premises.
[A.S. GADKARI, J.]
Digitally signed
by OMKAR
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2021.11.23
17:30:33 +0530
