Bombay High Court
Pradip Bajirao Ninave And Anr vs Saguna Nivruti Tapare And Ors on 5 August, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:33854
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5536 OF 2025
1. Pradip Bajirao Ninave }
Aged 70 years,
2. Mrs Sunetra Pradip Ninave }
aged 59 years, }
both are residing at 5-C }
503, Mumbai Tower CHS Ltd, }
Rustamji Bangela Marg, }
New Hind Mills Compound, }
Mazgaon, Mumbai-400 010. } ...Petitioners
V/s.
VARSHA
DEEPAK 1. Saguna Nivruti Tapare }
GAIKWAD
Digitally signed by
VARSHA DEEPAK
Aged 62 years, }
GAIKWAD
Date: 2025.08.07
19:13:51 +0530 widow of deceased Nivruti T. Tapare }
2. Mr. Dayanand Nivruti Tapare, }
Aged 41 years. }
3. Mr. Vivekanand Nivruti Tapare }
Aged 36 years, }
both are sons of deceased }
Nivruti Tukaram Tapare, }
All residing at Post- }
Taparewadi, Taluka- Bhor, }
Dist-Pune 412 205 }
4. The State of Maharashtra }
through the Additional }
Commissioner, Konkan Division, }
Mumbai. } ....Respondents
-------------------
Mr. Vikram Sathaye with Shobhana Waghmare, for the petitioners.
Mr. Arun Nimbalkar, for the respondents.
Ms. S.D. Chipade, AGP, for the State.
--------------------
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CORAM : N.J. JAMADAR, J.
DATE : 5th AUGUST 2025
ORAL JUDGMENT:
1. Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith and, with the consent of
the counsel for the parties, heard finally.
3. The challenge in this petition is to an order dated 15 th April
2025, passed by the Additional Commissioner, Konkan Division,
Mumbai in Revision Application No. 62 of 2025, whereby the revision
preferred by the applicants against an order passed by the Competent
Authority under Section 24 of the Maharashtra Rent Control Act, 1999
( the Act, 1999) directing the eviction of the applicants from flat No.
503, 5th floor, C-Wing, Building No. 5,, New Hind Mills Compound,
Mazgaon, Mumbai (the Suit Flat) came to be dismissed, affirming the
order passed by the Competent Authority.
4. Nivruti Tukaram Tapare was a mill worker. Under an allotment
letter dated 7th May 2014, the subject flat was allotted to Nivruti
Tapare, the predecessor-in-title of the respondent nos. 1 to 3. On 28 th
July 2014, late Nivruti Tapare executed a leave and licence agreement
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in favour of the petitioners, thereby allowing the petitioners to use the
subject flat as licencees for a period of five years commencing from 1 st
August 2014 to 31st July 2019. Under the terms of leave and licence
agreement, a sum of Rs. 26,25,000/- was paid to the licensor by way of
security deposit. It was, inter alia, agreed between the parties that the
licencee was not pay any monthly compensation for the use and
occupation of the licenced premises. Nivruti Tapare passed away on
22nd January 2021.
5. The respondent nos. 1 to 3 preferred an application under
Section 24 of the Act, 1999 before the Competent Authority, asserting
that the term of the licence has expired in the year 2019 and yet the
petitioners had not vacated the licensed premises.
6. The petitioners appeared before the Competent Authority and
filed an application for leave to defend. By an order dated 17 th October
2024, the said application came to be rejected. On the very same day,
by a separate order, the Competent Authority was persuaded to allow
the application for eviction observing, inter alia, that the term of the
licence had expired on 31st July 2019. The leave and licence agreement
was a conclusive evidence of the transaction evidenced by the said
agreement. Hence, the petitioners were directed to vacate the subject
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flat, and the respondent nos. 1 to 3 were directed to deposit the
amount of Rs. 26,25,000/- before the Competent Authority for
remitting the same to the petitioners, after the petitioners vacated the
subject flat.
7. Being aggrieved, the petitioners preferred a revision before the
Divisional Commissioner, Konkan Division, Mumbai. By the impugned
order the Divisional Commissioner was persuaded to dismiss the
revision application, concurring with the views of the Competent
Authority.
8. Mr. Sathaye, the learned counsel for the petitioners, submitted
that both the authorities have not delved into the voluminous material
placed on record by the petitioners, which indicated that the real
transaction between the parties was different than the one with the
apparent tenor of the leave and licence agreement indicates.
9. Attention of the Court was invited to an agreement for sale
executed by late Nivruti Tapare in favour of the petitioners on the very
day on which the leave and licence agreement was executed and
registered. In the said agreement for sale, the predecessor-in-title of
the respondent nos. 1 to 3 acknowledged having received the very
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same amount of Rs. 26,25,000/ which was shown as a security deposit
in the leave and licence agreement, by way of consideration for the
sale. In addition to this, late Nivruti Tapare had executed a Will
bequeathing the subject flat in favour of both the petitioners. An
irrevocable Power of Attorney was also executed by late Nivruti Tapare.
The respondent nos. 1 to 3 had also sworn affidavits acknowledging
the said nature of the transactions between the parties.
10. In the face of aforesaid documents, the authorities below could
not have proceeded simply on the premise that a registered leave and
licence agreement was executed between the predecessor-in-title of the
respondent nos. 1 to 3 and the petitioners, submitted Mr. Sathaye.
11. Mr. Sathaye further submitted that petitioners have also
instituted a suit, being Suit No. 105510 of 2024, before the City Civil
Court seeking specific performance of the agreement for the sale of the
subject flat. In the said suit the respondent nos. 1 to 3 have appeared
and filed the written statement. An application for temporary
injunction awaits adjudication.
12. In these circumstances, the impugned order deserves to be
interfered with. At any rate, the possession of the petitioners deserves
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to be protected, urged Mr. Sathaye.
13. In opposition to this, Mr. Nimbalkar, the learned counsel for the
respondent nos 1 to 3, submitted that the petitioners have suppressed
the material fact that after the expiry of the first leave and licence
agreement, a second leave and licence agreement was executed on 2 nd
October 2019, evidencing the fact that the suit flat was given on
licence to the petitioners for a further term of 5 years commencing
from 1st August 2019 to 31st July 2024. In the said leave and licence
agreement, the petitioners had also agreed to pay a compensation of
Rs.100/-p.m. towards the use and occupation of the suit flat. In the
face of these registered leave and licence agreements, the unregistered
documents, which have been relied upon by the petitioners with a view
to usurp the suit flat, which has been allotted to the mill worker, do
not command any credence and must yield to the registered
instruments.
14. Mr. Nimbalkar, further submitted that, even otherwise, the
Competent Authority being a creature of statute and having a limited
jurisdiction, could not have delved into the issues sought to be raised
on behalf of the petitioners. The questions of title or for that matter,
the existence of a different transaction between the parties could not
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have been adjudicated by the Competent Authority. Therefore, the
impugned orders passed by the Revisional Authority as well as the
Competent Authority are legal and proper and do not warrant any
interference in the exercise of writ jurisdiction.
15. To lend support to this submission, Mr. Nimbalkar placed reliance
on a judgment of a learned Single Judge of this Court in the case of
'Surendra B. Agarwal and Anr. Vs AML Merchandising Pvt. Ltd' 1, and
the judgments of the Supreme Court in the cases of 'Shakeel Ahmed
Vs. Syed Akhlaq Hussain2 and ''Mahnoor Fatima Imran and Ors. Vs.
M/s Visweswara Infrastructure Pvt Ltd. and Ors. 3,
16. To begin with, it is necessary to note that the execution of the
leave and licence agreement dated 28th July 2014 is not in contest.
Though initially the petitioners did not place on record the copy of the
second leave and licence agreement dated 2 nd October 2019, yet it is
incontestable that the second leave and licence agreement for a further
term of five years commencing from 1st August 2019 to 31st July 2024
came to be executed between the parties. The fact that the subject flat
was allotted to late Nivruti Tapare by MHADA, as a mill worker and
3 (Civil Appeal No. ...... of 2025 @ Special Leave Petition © No. 1866 of 2024
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there were restrictions in the matter of the transfer of the subject flat
for a period of ten years from the allotment is also not in dispute.
17. The essential controversy between the parties revolves around
the nature of the jural relationship formed by the transactions between
the petitioners and late Nivruti Tapare. On the one hand, there are
registered leave and licence agreements which indicate that the parties
agreed to form the jural relationship of licensor and licencee. On the
other hand, the petitioners rely upon a number of documents, namely,
an agreement for the sale of the subject flat; the purported Will
executed by late Nivruti Tapare; the irrevocable Power of Attorney and
affidavits sworn by the respondent nos. 1 to 3 purportedly admitting
the transaction of a different nature than a licence. The respondent
nos. 1 to 3, however, assert that all those documents are false and
forged and have been brought into effect to usurp the subject flat.
18. In the light of the aforesaid rival contentions, the pivotal
question that arises for consideration is whether the contentious issue
of existence of a different transaction between the parties, could have
been legitimately enquired into by Competent Authority under Section
24 of the Rent Act, 1999.
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19. Section 24 of the Rent Act, 1999 reads as under:
24. Landlord entitled to recover possession of premises given on
licence on expiry.
(1)Notwithstanding anything contained in this Act, a licencee 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 licencee to so deliver the
possession of the licenced premises, a landlord shall be entitled to recover
possession of such premises from a licencee, 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 licencee.
(2)Any licencee 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 licenced 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 person who is not a licencee 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.
20. On a plain reading, it becomes abundantly clear that the
Competent Authority is a creature of the statute and has a limited
jurisdiction. The remit of the jurisdiction of the Competent Authority is
confined to determine the claim for eviction of a licencee filed by a
licensor-landlord. Sub Section (3) expressly bars the Competent
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Authority from entertaining a claim of any third party who is not a
licensee. To arrive at the satisfaction that the period of licence has
expired, the Competent Authority can embark upon an enquiry as to:
i) Whether the landlord/licensor has given the subject
premises on licence for residential purpose?
ii) Whether there is a leave and licence agreement? Is it
registered?
iii) Whether the term of licence has expired.
iv) Whether the licensee has delivered the possession of the
licensed premises, after the expiry of term of licence?
21. Explanation (b) to Section 24 incorporates a presumption to the
effect that an agreement of licence in writing shall be conclusive
evidence of the facts stated therein.
22. Moreover, the provisions contained Act, 1999 envisage a
summary procedure for the determination of the applications filed
under Section 24 of the Act, 1999. Neither the question of title nor
existence of rights emanating from a different jural relationship
asserted by the licencee, in subject premises, can be legitimately
inquired into in such summary proceeding.
23. In the case of Surendra B. Agarwal (Supra), on which reliance
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was placed by Mr. Nimbalkar, the learned Single Judge of this Court
considered the nature and import of the provisions contained under
Section 24 of the Act, 1999 and the nature of the jurisdiction exercised
by the Competent Authority. It was, inter alia, held that the pendency
of the suit relating to the title of the licensor or for a declaration
instituted by the licensee claiming certain rights in the subject premises
can not preclude the Competent Authority from determining the
application for eviction under Section 24 of Act.
24. Observations in Paras 10 to 12 of the said judgment read as
under:
"10. Thus, the special provision has been made under the said Act for
evicting the licencees of premises given on licence for residence.
A special procedure laid down under Chapter VIII governs the
application made under section 24 of the said Act. The said Act
contemplates a summary disposal of the applications. By the very
nature of the proceedings as reflected from the aforesaid statutory
provisions, the jurisdiction of Competent Authority is very limited. It
can decide a dispute between a landlord (lincesor) and the licencee.
It is obvious that considering the summary nature of the proceedings,
issue of title to the disputed premises can never be decided in such
proceedings. The sub-section 1 of section 24 starts with non-obstante
clause. Moreover section 39 of the said Act gives overriding effect to
the provisions of Chapter VIII. Therefore, pendency of a suit
governed by section 33 of the said Act or a suit on title cannot
prevent the competent authority from deciding an application for
eviction. There is no statutory power vesting the Competent
Authority to stay the proceedings of the application under section 24
of the said Act on the ground of pendency of a civil suit relating to
the property.
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11. All that is required to be considered by the Competent Authority
is whether the landlord has given the premises on licence for
residence and whether on expiry of period of licence the licencee has
not delivered the possession of the premises subject matter of licence.
Sub-section 3 of section 24 of the said Act specifically prevents the
Competent Authority from considering a claim of any stranger. The
intention of legislature of making an Agreement of Licence in writing
as a conclusive evidence of the facts stated therein cannot be
altogether ignored.
12. Hence, once application under section 24 of the said Act is filed
by the licensor, the Competent Authority has to decide the said
application in accordance with law. The Competent Authority is not
really concerned with the title of the licensor. All that is required to
be examined is whether the applicant is a licensor and whether the
opponent is the licencee and whether there was a Leave and Licence
Agreement for residential use of the suit premises. In a case where
licencee is claiming some other rights in relation to the premises in
dispute, adjudication of the said rights cannot be made by the
Competent Authority. Therefore, if a suit relating to the title of the
licensor is pending or if a suit for declaration filed by the licencee
claiming declaration of rights is pending, that is no ground to detain
the hearing of application under section 24 of the said Act. The
pendency of suits in the Civil Court or other Competent Court
relating to the premises in dispute does not affect the jurisdiction of
the Competent Authority to decide the application. While deciding
the application under section 24 of the said Act the Competent
Authority cannot decide the issue of title."
(emphasis supplied)
25. The aforesaid being the position in law, the submission on behalf
of the petitioners that the Competent Authority ought to have
embarked upon an enquiry as regards the real nature of the jural
relationship between the parties in the light of the documents and
material brought on record by the petitioners, does not merit
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consideration.
26. What is of critical salience is the fact that, after the expiry of the
first agreement, the parties entered into a second leave and licence
agreement for a further term of five years. In the face of these
registered leave and licence agreement, the presumption contained in
the Explanation (b) to Section 24 operated with full force and rigour.
In a sense, the nature of jural relationship formed by the first
agreement was reinforced by the second agreement. Therefore, the
impugned orders which proceed on the promise of jural relationship of
licensor and licencee, evidenced by the two leave and licence
agreements, cannot be faulted at.
27. At the same time, the Court needs to be alive to the fact that the
petitioners have instituted a suit for specific performance of the
agreement for sale of the subject flat purportedly executed by late
Nivruti Tapare. The character of the documents executed between the
parties and the nature of the relationship formed thereby would be
matters for adjudication by the Civil Court. Whether the petitioners
were put in possession of the subject flat under the agreement for sale,
or for that matter, the entirety of the circumstances indicates a
transaction different than the one evidenced by the leave and licence
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agreements, are the matters which can be legitimately adjudicated by
the Civil Court and not by the Competent Authority. Since the
petitioners have already instituted a suit for specific performance of
the contract and injunction, the petitioners can seek the appropriate
remedy before the Civil Court.
28. In this view of the matter, in exercise of the supervisory writ
jurisdiction, no interference is warranted in the impugned order.
However, the petitioners deserve a limited protection to approach the
Civil Court and obtain an appropriate order. The Court is informed that
the Civil Suit is listed before the City Civil Court on 21st August 2025.
29. Thus, this Court considers it appropriate to direct that the
impugned orders be not executed for a period of two weeks from 21 st
August 2025.
30. In the meanwhile, if the petitioners move the City Civil Court, the
learned Judge, City Civil Court seized with the suit is requested to
decide the application for interim relief on its own merit and in
accordance with law.
31. Hence, the following order :
i) The petition stands dismissed.
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ii) The impugned orders be not executed for a period of
two weeks from 21st August 2025.
iii) Rule discharged.
iv) It is hereby clarified that this Court has not entered
into the merits of the matter regarding the claim of the
petitioners in the civil suit, and the learned Judge, City Civil
Court shall not be influenced by any of the observations
hereinabove, while deciding the application for interim
relief/suit.
No costs.
(N.J. JAMADAR, J)
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