Bombay High Court
Ram Shankar Sinha vs Ritesh V. Patel And Anr on 5 May, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:22102
52- WP-3767-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIIVL WRIT PETITION NO.3767 OF 2025
IN
CIVIL REVISION APPLICATION NO.747 OF 2024
Ram Shankar Sinha ...Petitioner
Versus
Ritesh V. Patel & Anr. ...Respondents
_______________________________________________________________
Mr. Alizain Patel, for the Petitioner.
Mr. Nilesh L. Makwana a/w Lajri H. Panchal, for the Respondents.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 5th MAY 2025
JUDGMENT:
1. Heard Mr. Patel, learned Counsel appearing for the Petitioner and
Mr. Makwana, learned Counsel appearing for the Respondents.
2. By the present Civil Writ Petition filed under Article 227 of the
Constitution of India challenge is to the legality and validity of the order
dated 14th February 2025 passed by Additional Divisional Commissioner,
Konkan Division, Mumbai in Revision Application No.747/2024. By the
impugned order of the Additional Divisional Commissioner, order dated
9th August 2024 passed by the Competent Authority, Rent Control Act
Court, Konkan Division, Mumbai in Eviction Application No.247 of 2023
is set aside and the said Eviction Application is remanded back to the
Competent Authority for trial and directing that order be passed after
leading evidence by both the parties.
3. The Competent Authority by order dated 9 th August 2024 rejected
52- WP-3767-2025.doc
Application bearing Exhibit-11 filed in Eviction Application No.247 of
2023 seeking leave to defend filed by the Respondent and also
Application bearing Exhibit-12 under Order VII Rule 11 of the Code of
Civil Procedure, 1908 ("CPC") for rejection of the Eviction Application.
Consequently the Competent Authority passed eviction order on 9 th
August 2024.
4. It is the main submission of learned Counsel appearing for the
Petitioner that in view of Explanation (b) to Section 24 of the
Maharashtra Rent Control Act, 1999 ("Maharashtra Rent Act") no other
evidence which is contrary to the terms and conditions of written leave
and license agreement can be led and the said terms are conclusive of
the facts stated therein. He relied on a judgment of a learned Single
Judge in the case of Sanath Kumar Sanjib Das v. Fernandes Anthony
John & Ors.1 and also judgment of a learned Single Judge in the case of
Ramesh Sidde Gawda v. Vivek Deendayal Agarwal 2 and therefore
submits that the Additional Commissioner Konkan Division, Mumbai
has passed the order which is contrary to the settled legal position and
therefore the same is required to be quashed and set aside and order
passed by the Competent Authority is required to be restored.
5. On the other hand Mr. Makwana, learned Counsel appearing for
the Respondents submits that the Respondents are in possession of the
1 2024 SCC OnLine Bom 2135
2 2016 SCC OnLine Bom 6262
52- WP-3767-2025.doc
premises since 2011. The last leave and license agreement was executed
on 16th June 2018 and the same expired by efflux of time on 15 th June
2020. He states that the Application is filed on 9 th November 2023. He
states that after the said period of leave and license agreement comes to
an end, the relationship between the Petitioner and the Respondents is
no more of licensor and licensees and therefore the Application is not
maintainable. He further submits that there is material on record to
show that parties negotiated the sale of subject premises and price was
also fixed subsequently after the leave and license agreement. He
submits that Civil Suit seeking specific performance of said oral
agreement is pending. He therefore submitted that no interference in
the impugned order is warranted.
6. The issues involved in this Writ Petition are also involved in the
decision of this Court in the case of Alpana Sanjay Kolhatkar & Ors. v.
Vijay Kumar Amrut Gone & Ors3. In said case inter alia following points
were raised and decided:-
i. What is the scope of explanation 'b' to Section 24 read
with Section 43(4) of the Maharashtra Rent Control Act,
1999?
ii. Whether the Competent Authority while deciding the
Application for leave to defend filed under Section 43(4)
of the Maharashtra Rent Control Act, 1999 can decide
the same dehors the rigours of explanation 'b' to Section
3 Civil Writ Petition No.11046 of 2019 decided on 7th August 2023.
52- WP-3767-2025.doc
24 of the Maharashtra Rent Act?
The discussion in said decision of Alpana Kolhatkar (supra) is also
relevant.
7. Apart from the above points, following point is also required to be
decided:-
iii. Whether in the facts and circumstances of this case it is
necessary to grant leave to defend under Section 43(4) of the
Maharashtra Rent Control Act, 1999 to the Respondent.
Point No. i :
What is the scope of explanation 'b' to Section 24 read with Section
43(4) of the Maharashtra Rent Control Act, 1999?
8. The relevant provisions of law concerning the scope and ambit of
jurisdiction of Competent Authority dealing with cases covered by
Section 24 of the Maharashtra Rent Act are as follows:
(i) Chapter V of the Maharashtra Rent Act sets out special
provisions for recovery of possession in certain cases. Section 23
is concerning entitlement to recover possession of premises
required for occupation by the members of armed forces of the
Union, scientists or their successor-in-interest. Section 24 is
concerning the landlord entitled to recover the possession of the
premises given on licence on expiry. In this case eviction
proceedings are filed under Section 24 of the Maharashtra Rent
52- WP-3767-2025.doc
Act, which reads 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
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 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;
and
(b) an agreement of licence in writing shall be conclusive
evidence of the fact stated therein."
(Emphasis added)
(ii) Chapter VIII of the Maharashtra Rent Act provides for
52- WP-3767-2025.doc
provisions for summary disposal of certain Applications. Section
39 of the Maharashtra Rent Act provides that provisions of this
Chapter to have an overriding effect and the same reads as
under:-
"39. 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."
(iii) Section 40 of the Maharashtra Rent Act is regarding
appointment of Competent Authority.
(iv) Section 41 of the Maharashtra Rent Act is concerning
definition of "landlord" for the purpose of Chapter VIII of the
same i.e. in the case where summary disposal of certain
Applications is contemplated. Said section 41 reads as under:
"S.41. Definition of landlord for the purpose of
Chapter VIII
For the purposes of this Chapter, landlord means a
landlord who is,--
(a) a person who has created a service tenancy in
respect of his premises or a part thereof in favour of
his employee under section 22;
(b) a member of the armed forces of the Union or a
scientist or a Government servant or a successor-in-
interest, referred to in section 23; or
(c) a person who has given premises on licence for
residence or a successor-in-interest referred to in
section 24."
(Emphasis added)
(v) Section 42 of the Maharashtra Rent Act is concerning
52- WP-3767-2025.doc
special provisions for making Application to competent authority
by landlord to evict the tenant or licencee and the same reads as
under:-
"42. Special provisions for making application to
Competent Authority by landlord to evict tenant or
licensee-
Notwithstanding anything contained in this Act or
any other Law for the time being in force or any
contract to the contrary or any judgement or decree
or order of any court, but subject to the provisions
of section 22 or 23 or 24, as the case may be, a
landlord may submit an application to the
Competent Authority, signed and verified in a
manner provided in rules 14 and 15 of Order VI of
the First Schedule to the Code of Civil Procedure,
1908, as if it were a plaint, to the Competent
Authority having jurisdiction in the area in which
the premises are situated, for the purpose of
recovery of possession of the premises from the
tenant or licensee, as the case may be."
(Emphasis added)
(vi) Section 43 of the Maharashtra Rent Act prescribes special
procedure for disposal of Applications filed by the landlord under
the said Chapter VIII of the same. Section 43 reads as under :-
"43. Special procedure for disposal of applications-
(1) Every application by a landlord under this
Chapter for the recovery of possession shall be
accompanied by such fees as may be prescribed.
The Competent Authority shall deal with the
application in accordance with the procedure laid
down in this section.
(2) The Competent Authority shall issue summons
52- WP-3767-2025.doc
in relation to every application referred to in sub-
section (2) in the form specified in Schedule III.
(3) (a) The Competent Authority shall, in addition
to, and simultaneously with, the issue of summons
for service on the tenant or licensee, as the case
may be, also direct the summons to be served by
registered post, acknowledgement due, addressed
to the tenant or the licensee or agent empowered by
such tenant or licensee to accept the service at the
place where the tenant or licensee or such agent
actually and voluntarily resides or carries on
business or personally works for gain.
(b) When an acknowledgement purporting to be
signed by the tenant or licensee or their agent is
received by the Competent Authority or the
registered article containing the summons is
received back with an endorsement purporting to
have been made by a postal employee to the effect
that the tenant or licensee or their agent had
refused to take delivery of the registered article, the
Competent Authority may proceed to hear and
decide the application as if there has been a valid
service of summons.
(4) (a) The tenant or licensee on whom the
summons is duly served 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
52- WP-3767-2025.doc
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.
(b) The Competent Authority shall give to the
tenant or licensee leave to contest the application if
the affidavit filed by the tenant or licensee discloses
such facts as would disentitle the landlord from
obtaining an order for the recovery of possession of
the premises on the ground specified in section 22
or 23 or 24. Special provision for making
application to Competent Authority by landlord to
evict tenant or licensee. Special procedure for
disposal of applications.
(c) Where leave is granted to the tenant or licensee
to contest the application the Competent Authority
shall commence the hearing of the application as
early as practicable and shall, as far as possible,
proceed with the hearing from day to day, and
decide the same, as far as may be, within six
months of the order granting of such leave to
contest the application.
(5) The Competent Authority shall, while holding
an inquiry in a proceeding to which this Chapter
applies, follow the practice and procedure of a
Court of Small Causes, including the recording of
evidence."
(Emphasis added)
(vii) Section 44 of the Maharashtra Rent Act provides that order
of Competent Authority be non-appealable and provides revision
to the Additional Commissioner. Said Section 44 reads as
under:-
"44. Order of Competent Authority to be non-
appealable and revision by State Government-
52- WP-3767-2025.doc
(1) No appeal shall lie against an order for the
recovery of possession of any premises made by the
Competent Authority in accordance with the
procedure specified in section 43.
(2) The State Government or such officer, not
below the rank of an Additional Commissioner of a
Revenue Division, as the State Government may, by
general or special order, authorise in this behalf,
may, at any time suo motu or on the application of
any person aggrieved, for the purposes of satisfying
itself that an order made in any case by the
Competent Authority under section 43 is according
to law, call for the record of that case and pass such
order in respect thereto as it or he thinks fit :
Provided that, no such order shall be made except
after giving the person affected a reasonable
opportunity of being heard in the matter :
Provided further that, no powers of revision at the
instance of person aggrieved shall be exercised,
unless an application is presented within ninety
days of the date of the order sought to be revised."
(Emphasis added)
(viii) Section 47 of the Maharashtra Rent Act gives exclusive
jurisdiction to the Competent Authority. Said Section 47 reads as
under :-
"47. Bar of jurisdiction -
Save as otherwise expressly provided in this Act, no
civil court shall have jurisdiction in respect of any
matter which the Competent Authority or the State
Government or an officer authorised by it is
empowered by or under this Act,to decide, and no
52- WP-3767-2025.doc
injunction shall be granted by any court or other
authority in respect of any action taken or to be
taken in pursuance of any power so conferred on the
Competent Authority or the State Government or
such officer."
(Emphasis added)
(ix) Section 49 of the Maharashtra Rent Act provides that
Competent Authority appointed under said Chapter VIII to be
deemed to be public servant. Section 50 of the Maharashtra
Rent Act provides that all proceedings before the Competent
Authority be judicial proceedings. Section 51 of the Maharashtra
Rent Act provides that however, the Competent Authority shall
be deemed to be civil court for the purposes of Section 345 and
346 of the Code of Criminal Procedure, 1973. Section 52 of the
Maharashtra Rent Act provides that no suit, proceeding or other
legal proceedings shall lie against the Competent Authority in
respect of anything done in good faith or intended to be done
under the said Act.
(x) Section 55 of the Maharashtra Rent Act is also relevant as
inter alia, it provides that any Agreement for Leave and Licence
after commencement of the Maharashtra Rent Act, shall be in
writing and shall be registered under the Registration Act, 1908.
It further provides that the responsibility of getting such an
Agreement registered shall be with the landlord and in the
absence of the written registered Agreement, the contention of
52- WP-3767-2025.doc
the tenant about the terms and conditions subject to which a
premises has been given to him by the landlord on Leave and
Licence or have been let to him, shall prevail, unless proved
otherwise. Section 55 reads as under :-
55. Tenancy agreement to be compulsorily registered -
(1) Notwithstanding anything contained in this Act or
any other law for the time being in force, any
agreement for leave and licence or letting of any
premises, entered into between the landlord and the
tenant or the licensee, as the case may be, after the
commencement of this Act, shall be in writing and shall
be registered under the Registration Act, 1908.
(2) The responsibility of getting such agreement
registered shall be on the landlord and in the absence of
the written registered agreement, the contention of the
tenant about the terms and conditions , subject to which
a premises have been given to him by the landlord on
leave and licence or have been let to him, shall prevail,
unless proved otherwise.
(3) Any landlord who contravenes the provisions of this
section shall, on conviction, be punished with
imprisonment which may extend to three months or
with fine not exceeding rupees five thousand or with
both."
(Emphasis added)
9. In several decisions of this Court, the scheme under Section
13A(2) of the Bombay Rents, Hotels and Lodging House Rates Control
Act, 1947 ("Bombay Rent Act") which is similar to Section 24 read with
Chapter VIII of the Maharashtra Rent Act is considered.
52- WP-3767-2025.doc
(i) In case of Jasmeet Hoon v. Rita Johar 4 the said special
procedure for eviction of Licencee before the Competent
Authority prescribing a special rule of evidence is discussed in
paragraph No.11. The paragraph No.11 reads as follows :-
"11. In several Judgments of this Court, it has been
held that section 13-A(2) lays down a special procedure
for eviction of licensees before the Competent Authority
which is a special forum constituted under Part IIA of the
Act. Explanation (b) to section 13-A(2) prescribes a
special rule of evidence. It provides that an agreement of
licence in writing shall be conclusive evidence of the
facts stated therein. In view of this special rule of
evidence, this Court has held that it is not permissible for
the Court to go behind the document to find out the real
intention of the parties or to arrive at a conclusion that
the document is of a lease and not of leave and licence.
The licensee cannot lead evidence to establish that the
real transaction was of tenancy or is not what it professes
to be. The agreement is conclusive evidence that the
transaction is of leave and licence. In other words, it has
been held that the words in explanation (b) to section
13-A(2) have the effect of shutting out any other
evidence on the subject which might be adduced before
the Court. This view was taken by a learned Single Judge
of this Court (A.P. Shah, J.) in Swami Attah v. Mrs. Thrity
Poonawalla reported in 1996 (1) Mh. L.J. 603. In paras 4
and 5 the learned Judge held as follows:--
"4. ... The explanation (b) to section 13(A2)
prescribes a special rule of evidence, which
provides that an agreement of licence in writing
shall be conclusive evidence of the facts stated
therein. In view of the special rule of evidence, it
is not permissible for the court to go beyond the
document to find out the intention of the parties
4 2000 SCC Online Bom 524
52- WP-3767-2025.doc
and to arrive at a conclusion that the document
is of lease and not of leave and licence....".
5. ....But where a document or evidence is made
conclusive it creates a presumption juris et de
jure in fabvour of the truth and legality of the
matter stated and no evidence can be adduced to
contradict it. Conclusive evidence means an
absolute evidence of a fact for all purposes for
which it is so made evidence R. v. Levi, (1865)
34 L.J.M.C. 174. Therefore, the words appearing
in explanation (b) "an agreement of licence in
writing shall be conclusive evidence of the fact
stated therein" must in the ordinary and
grammatical meaning, have the effect of shutting
out any other evidence on the subject which
might be adduced before the Court."
The same view has been reiterated in the earlier
Judgment of another learned Single Judge Mr. Justice
R.G. Vaidyanatha in Amarjit Singh v. R.N. Gupta
reported in 1995 (4) BCR 538. In para 4 of his
Judgment, the learned Judge held thus:
"4. It is true as observed by the Supreme Court
in Associated Hotels of India's case, AIR 1959
SC 1262 that the question whether in a
particular case the transaction is one of a lease
or licence is a question of fact to be decided on
the peculiar facts and circumstances of the case,
the contents of the document, the intention of
the parties etc. But in my view, in the present
case, we are guided by a special legislation viz.
the Bombay Rent Act which contains provisions
for leave and licence in addition to tenancies. A
special forum is created for eviction of licensees
who are continuing in the premises after the
expiry of the licence period.
52- WP-3767-2025.doc
Section 13-A-2(1) of the Bombay Rent Act
provides a procedure for eviction of a licensee
before a competent authority. Then a special
rule of evidence is prescribed in section 13-A-
2(3)(b) which provides that an agreement of
licence in writing shall be conclusive evidence
of the facts stated therein.
In view of this special rule of evidence
prescribed under the Act we cannot go beyond
the document to find out the intention of the
parties, the circumstances of the case, the
nature of possession etc. as pointed out by the
Supreme Court in the Associated Hotels of
India's case, that rule may be applicable to
leases under the general law. But we are
concerned with the leave and licence under a
particular statute which prohibits taking of
extraneous factors other than the contents of
the document to find out the nature of the
transaction."
Apart from these Judgments, two other learned
Single Judges Mr. Justice P.S. Patankar and Mr.
Justice R.M. Lodha have interpreted the
provisions of section 13-A(2) in Automatic
Electric Ltd. v. Sharadchandra Vinayak Tipnis
reported in 1996 (1) Mh. L.J. 619, Sails India v.
Rita M. Rupani reported in 1997 (2) Mh. L.J.
269 and Ramesh Ramrao Hate v. Parvez B.
Bhesania reported in 1997 (1) Mh. L.J. 295. Mr.
Justice Patankar, referred in para 11 of his
judgment in 1996 (1) Mh. L.J. 619 to the
Statement of Objects and Reasons underlying
section 13-A(2) which is as follows:
"There are many a landlord who prefer to keep
their premises vacant instead of letting them or
52- WP-3767-2025.doc
giving them on licence fee for fear of not getting
the premises back when they want the same for
their own use as it requires several years to get
possession of such premises through the Court
of law. It is therefore proposed to encourage the
system of giving premises by landlords on
licence basis and, on the failure of the licensee
to deliver possession of the licensed premises to
the landlord on expiry of the period of licence,
to enable the landlord to get the possession of
the premises from licensee as speedily as
possible. For that purpose it is proposed to
amend section 6 suitably, and to insert new
section 13-A(2). This special machinery for this
purpose is proposed to be created by clause 19."
The learned Judge then holds as follows:--
"The objects and reasons make it clear that
many landlords do not let out the premises or on
licence fee in view of the difficulty in getting
back the premises under the provisions of the
Act, whenever they want the same for their own
use. It clearly condemns about the long delays-
caused in prosecuting the litigation in Courts of
law regarding getting the possession of the
premises. It was necessary to change this
scenario and to encourage landlords to give the
premises on licence basis and to provide the
machinery to enable the landlords to get back
the premises immediately after the expiry of the
period of licence. It was necessary to introduce
some speedy remedy. This was done by section
13-A(2) and special machinery was provided. It
was thought by the legislature to induce the
landlords to give the premises on licence basis."
In 1997 (1) Mh. L.J. 295 Mr. Justice R.M. Lodha
has held in para 9 of his Judgment as under:--
52- WP-3767-2025.doc
"9. Once the legislature by explanation (b) of
section 13-A(2) has provided that a written
agreement of licence shall be conclusive
evidence of the facts stated therein, it provided a
special rule of evidence for the purpose of
proceedings under section 13-A(2) of the
Bombay Rent Act. The intention of the
legislature was to give finality to the existence of
a fact occurring in the written agreement of
leave and licence. In other words legislature
intended to shut out any other evidence which
would detract from the conclusiveness of that
evidence. The object of expression 'conclusive
evidence of fact stated therein' is aimed to give
finality to the establishment of the existence of
the fact or facts stated in the written leave and
licence agreement from the proof of another.
The argument of learned counsel for the
petitioner that explanation (b) only makes the
written agreement of licence conclusive
evidence as regards the licensor and not against
the licensee is very difficult to be appreciated.
Once it is provided by the legislature that an
agreement of licence in writing shall be
conclusive evidence of the facts stated therein, it
prohibits from leading any other evidence which
may affect the conclusiveness of that evidence.
The law laid down by the Apex Court in Smt.
Somawanti case (supra) is clear answer to the
contention of the learned counsel for the
petitioner wherein the Apex Court has held that
once the law says that certain evidence is
conclusive it shuts out any other evidence which
would detract from the conclusiveness of that
evidence. Not only that when a certain evidence
is made conclusive evidence, it prohibits any
other evidence to be led which may detract from
the conclusiveness of that evidence, but also the
52- WP-3767-2025.doc
Court has no option to hold the existence of the
fact otherwise when such evidence is made
conclusive. Once an execution of the agreement
of leave and licence is not disputed before the
Competent Authority in an application under
section 13-A(2) based on such leave and licence
agreement, it is conclusive evidence of the facts
stated therein and no other evidence can be led
inconsistent with the said facts by either of the
parties and is conclusive between the parties of
the facts stated therein. The Competent
Authority has no option but to hold that the
facts stated therein do exist. Same position holds
good also in a case where the execution of
written agreement of leave and licence is denied
and the Competent Authority after recording
evidence reaches the conclusion that execution
of such agreement for leave and licence has
been proved by the licensor."
In the present case, the law as laid down in
these Judgments is squarely attracted."
(Emphasis added)
(ii) In the case of Rajendra B. Nair v. Suresh D.
Dnyamothe 5this Court discussed special scheme under old
section 13A(2) and the said special rule of evidence. The
relevant discussion is given in paragraphs 8 to 11 which
read as under:-
"8. On the other hand, on behalf of the respondent
reliance was sought to be placed on clauses 2 and 12
of the agreement which respectively refer to the
payment of monthly rent and to the bar of subletting.
It was next submitted that the documents in support
of the plea that there was an oral agreement to sell
were placed before the Competent Authority and the
authority was consequently justified in forming the
view that it ought not to allow the application for
5 2002 SCC OnLine Bom 244
52- WP-3767-2025.doc
eviction. Finally, it was urged that the finding which
was recorded by the Competent Authority should not
be interfered with in revisional proceedings.
9. Section 13-A2 of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 has been
introduced by amendment in order to provide a
speedy remedy for the purpose of the recovery of
possession of premises given on licence, on the expiry
of the licence. Prior to the enactment of section 13-
A2, a great deal of legal ingenuity would be devoted
to determining whether a Leave and Licence
agreement was in fact an agreement of licence or of
tenancy. A significant body of law had developed on
the subject. Section 13-A2 now provides that
notwithstanding anything contained in the Rent 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. 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 by making an
application to the competent authority. The
competent authority, on being satisfied that the period
of licence has expired, shall pass an order for eviction
of the licensee. Sub-section (2) of section 13-A2 then
provides that any licensee who does not deliver
possession of the premises on the expiry of the period
of licence and continues to be in possession until 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. Under sub-section (3), the
competent authority is directed not to entertain any
claim of whatever nature from any other person who
is not a licensee according to the agreement of
licence. Explanation (b) to the section provides that
for the purposes of the section an agreement of
52- WP-3767-2025.doc
licence in writing shall be conclusive evidence of the
fact stated therein. In other words, the mandate of
Explanation (b) is that once there is a written
agreement, it shall be conclusive evidence of the facts
which are contained therein. Consequently, it would
not be open to the parties to lead evidence to
establish that what was in fact, stated to be an
agreement of licence in writing, was not an
agreement of licence but of tenancy. The legislative
mandate of making the written agreement conclusive
evidence of the facts stated therein has to be given
full force and effect. These provisions have been
interpreted in several judgments of the learned Single
Judges of this Court and it would be convenient to
make reference to those judgments.
10. The line of precedent in this area is clear and
consistent. In Amarjit Singh v. R.N. Gupta, 1995 (4)
Bom.C.R. 538. Mr. Justice R.G. Vaidyanatha speaking
for this Court held that section 13-A2 provides a
special rule of evidence. The Court consequently
cannot go beyond the document to find out the
intention of the parties, the circumstances of the case,
the nature of possession etc. ... (This) particular
statute prohibits taking of extraneous factors other
than the contents of the document to find out the
nature of the transaction. In Swami Attah v. Mrs.
Thrity Poonawalla, 1996 (1) Mh.L.J. 603 Mr. Justice
A.P. Shah held, after referring to the judgment of the
Supreme Court in Smt. Somawanti v. The State of
Punjab, AIR 1963 SC 151 that "where a document or
evidence is made conclusive it creates a presumption
juris et de jure in favour of the truth and legality of
the matter stated and no evidence can be adduced to
contradict it." Mr. Justice P.S. Patankar in Automatic
Electric Ltd. v. Sharadchandra Vinayak Tipnis, 1996
(1) Mh.L.J. 619 referred to statement of objects and
reasons underlying the introduction of section 13-A2
by Maharashtra Act 18 of 1987 and took due notice of
52- WP-3767-2025.doc
the fact that the legislature had acknowledged that
many landlords do not let out premises or grant a
licence in view of the difficulty in getting back the
premises under the provisions of the Act. In view of
the long delays involved in prosecuting litigation
before Courts of law while getting back possession of
the premises, the legislature had introduced a speedy
remedy in section 13-A2 and created a special
machinery so as to encourage landlords to give
premises out on a licence with an assurance that they
will get back the premises immediately after the
expiry of the period of licence. In Ramesh Ramrao
Hate v. Parvez B. Bhesania, 1997 (1) Mh.L.J. 295 :
1997 (1) ALL MR 39, Mr. Justice R.M. Lodha held that
"the intention of the legislature was to give finality to
the existence of the facts occurring in the written
agreement of leave and licence." The learned Judge
held that once the execution of the agreement of
leave and licence is not disputed before the
Competent Authority in an application under section
13-A(2) based on such leave and licence agreement, it
is conclusive evidence of the facts stated therein and
no other evidence can be led inconsistent with the
said facts by either of the parties and is conclusive
between the parties of the facts stated therein."
11. The agreement is one by which a licence pure
and simple was created in favour of the respondent.
Explanation (b) to section 13-A2 must be given effect
and its consequence is that the parties are shut out
from leading evidence for the purpose of
demonstrating that the agreement was not a leave
and licence agreement. The provisions of the
agreement which have been adverted to above clearly
establish that the agreement was in fact and in law
what it purported to be namely, an agreement by
which a licence to occupy the premises was given to
the respondent for a temporary period of three
months. This needs emphasis, because quite apart
52- WP-3767-2025.doc
from the provisions of Explanation (b) which would
have the effect of shutting out oral evidence to the
contrary, the plain terms of the agreement show that
it was one of leave and licence."
(Emphasis added)
(iii) In Mukesh Dharsibhai Thakkar v. Rajnikant Ramanlal
Gunderia 6 the learned Single Judge has discussed the scheme of
proceedings under Section 24 of the Maharashtra Rent Act in
paragraphs 5 to 8. The said paragraphs 5 to 8 read as under :-
"5. I have considered the rival submissions advanced
by the learned Counsel appearing for the parties. I have
also perused the material on record. It is not in dispute
that respondent No. 1 executed leave and licence
agreement in favour of the petitioners on 28/10/2006
for a period of 12 months commencing from 01/11/2006
to 31/10/2007. Thus, entry of the petitioner in the
premises in question is as a 'licensee'. Section 52 of the
Indian Easements Act, 1882 defines the expression
"license' and read thus:
52. "License" defined.-Where one person grants
to another, or to a definite number of other
persons, a right to do, or continue to do, in or
upon the immovable property of the grantor,
something which would, in the absence of such
right, be unlawful, and such right does not
amount to an easement or an interest in the
property, the right is called a license.
6. Though period of 12 months expired on
31/10/2007 that does not mean that status of the
petitioner is changed from licensee to either a tenant
or as a trespasser as the respondent permitted him to
occupy the suit premises. In fact, in view of the Section
6 2016 SCC OnLine Bom 731
52- WP-3767-2025.doc
52 of the said Act, he continuous to be the licensee in
the premises in question.
7. Ms. Baxi relied upon Section 55 of the Act to
contend that the leave and licence agreement is
compulsorily required to be in writing and is also
required to be registered under the Registration Act,
1908. The responsibility of getting such an agreement
registered is on the licensor and in absence of the
written registered agreement, the contention of the
licensee about the terms and conditions subject to
which a premises have been given to him by the
landlord on leave and licence or have been let out to
him shall prevail, unless proved otherwise. She
submitted that as the leave and licence agreement is
not registered, the contention of the licensee/tenant
prevails, unless proved otherwise by the
licensor/landlord. She, therefore, submitted that the
matter may be remanded to the competent authority
so as to offer an opportunity to contest the application
filed by the first respondent.
8. This issue is no longer res integra. In the case of
Amit B. Dalal (supra), the learned Single Judge of this
Court has considered Sections 24 and 25 of the Act as
also decision of this Court in the case of (1) Ramesh
Ramrao Hate v. Parvez Bhesania, ((1997) 1 Mah LJ
295, and (2) Raj Prasanna Kondur (supra). The
relevant discussion is in paragraphs-19 to 20, which
reads thus:
"19. Thus in both the petitions, the execution of
leave and licence agreements is not disputed by
the Petitioner. The common issue which arises in
both the petitions is regarding the effect of non-
registration of the agreement of leave and
licence on the clause (b) of explanation to
section 24. The other common issue is as
regards interpretation of sub section 2 of section
52- WP-3767-2025.doc
55 of the said Act of 1999. Section 24 of the said
Act reads thus:
_______
It is not in dispute that under the said Act of 1947,
section 13A(2) contained a similar provision. Clause (b)
of the explanation to said section 13A(2) and clause (b)
of explanation to section 24 of the said Act are identical.
The said clause (b) of explanation to section 13A(2) of
the said Act of 1947 has been given consistent
interpretation by this Court. In the case of Ramesh
Ramrao Hate v. Parvez Bhesania ((1997) 1 Mah LJ 295),
this Court interpreted the said clause. In paragraph 8
and 9, this Court observed thus:
"8. The controversy centres round the explanation
(b) which makes a provision that an agreement of
licence in writing shall be conclusive evidence of the
facts stated therein. Though the expression used in
explanation is "conclusive evidence" it cannot be
differentiated with the expression "conclusive proof.
....."
"9. Once the legislature by explanation (b) or
Section 13A(2) has provided that a written
agreement of licence shall be conclusive evidence of
the facts stated therein, it provided a special rule of
evidence for the purpose of proceedings under
section 13A(2) of the Bombay Rent Act. The
intention of the legislature was to give finality to
the existence of a fact occurring in the written
agreement of leave and licence. In other words
legislature intended to shut out any other evidence
which would detract from the conclusive of that
evidence. The object of expression 'conclusive
52- WP-3767-2025.doc
evidence of fact stated therein' is aimed to give
finality to the establishment of the existence of the
fact or facts stated in the written leave and licence
agreement from the proof of another. The argument
of learned counsel for the Petitioner that
explanation (b) only makes the written agreement
of licence conclusive as regards the licensor and not
against the licence is very difficult to be
appreciated. Once it is provided by the legislature
that an agreement of licence in writing shall be
conclusive evidence of the facts stated therein, it
prohibits from leading any other evidence which
may affect the conclusiveness of that evidence. The
law laid down by the Apex Court in Smt.
Somawanti' case (supra) is clear answer to the
contention of the learned counsel for the Petitioner
wherein the Apex Court has held that once the law
says that certain evidence is conclusive it shuts out
any other evidence which would detract from the
conclusiveness of that evidence. Not only that when
a certain evidence is made conclusive, it prohibits
any other evidence to be led which may detract
from the conclusiveness of that evidence, but also
the Court has no option to hold the existence of the
fact otherwise when such evidence is made
conclusive. Once an execution of the agreement of
leave and licence is not disputed before the
Competent Authority in an application under
section 13A(2) based on such leave and licence
agreement, it is conclusive evidence of the facts
stated therein and no other evidence can be led
inconsistent with the said facts by either of the
parties and is conclusive between the parties of the
facts stated therein. The Competent Authority has
no option but to hold that the facts stated therein
do exist."
(emphasis added)
In the subsequent decisions, this Court has
52- WP-3767-2025.doc
consistently adopted the said interpretation of clause (b).
There is no reason why the ratio of the said decision
should not govern the clause (b) of section 24 of the said
Act. Thus, in both the cases it will not be open for the
Petitioner to lead any evidence to show that the
transaction was not of leave and licence but was of
tenancy inasmuch as the facts stated in the leave and
licence agreement establish that the Petitioner was
inducted as a licensee in the suit premises.
19A. Now the question which remains to be decided in
both the petitions is of interpretation of sub-section
2 of section 55 and the effect of the said provision
on the said clause (b). Section 55 reads thus:
_______
In the case of Raj Prasanna (supra), while dealing with sub-
section 2of section 55 of the said Act of 1999, in paragraphs 14 and
15 of the judgment, this Court held thus:
"14. The said Clause (b) in the Explanation to section 24
may, at first glance, appears to be contrary to the
provisions under section 55of the said Act, since sub-
section (1) of section 55 requires an agreement to be in
writing, besides its registration being mandatory, and
sub-section (2) thereof provides that in the absence of
written registered agreement, the contention of the
licensee regarding terms and conditions of the
agreement would prevail, unless proved otherwise. It is
to be noted that the presumptive value attached to the
contention of the licensee in relation to the terms and
conditions of the license is for the eventuality of
"absence of written registered agreement", whereas, the
52- WP-3767-2025.doc
conclusive evidence spoken of under Clause (b) in the
Explanation to section 24 relates to "facts" stated in the
written agreement. Harmonious reading of section 55(1)
and (2) along with the said Clause (b) in the Explanation
to section 24 of the said Act would reveal that though it
is mandatory for the landlord to get the agreement of
leave and license recorded in writing and registered
under the Registration Act, 1908, failure in that regard
would warrant consequences as stipulated under section
55 of the said Act, however, once the matter reaches the
stage of evidence, and if there is an agreement in
writing, though not registered, even then the facts stated
in such agreement could be deemed to be conclusively
established on the basis of such written agreement itself
and there would be no other evidence admissible in that
regard. On the other hand, the provisions of section
55(2) and 55(3) of the said Act relate to the
consequences of failure on the part of the landlord to
comply with the requirement of registration of the
agreement. In other words, though, in terms of
subsection (2) of section 55 of the said Act, there will be
presumptive value to the contentions of the licensee in
respect of the terms and conditions of the agreement is
in writing and even though it is not registered, the same,
as regards the facts stated therein would be deemed to
have been proved conclusively on production of the
agreement itself, and in which case, any presumption
arising in relation to the terms and conditions of the
license contrary to the facts stated in such agreement
would stand rebutted.
15. The contention of the learned Advocate for the
Petitioner that the absence of registered written
agreement would render of license to be invalid and
therefore, it would result in the absence of jurisdictional
fact to enable the Competent Authority to entertain the
application under section 24 of the said Act, cannot be
accepted. The jurisdictional fact which is required for the
Competent Authority to entertain the application for
52- WP-3767-2025.doc
eviction under section 24 of the said Act is the expiry of
license for residence in favour of the person occupying
the premises and moment the same is disclosed based on
whatever material placed before the Competent
Authority, it will empower the Competent Authority to
take cognizance of such application and to proceed to
deal with the matter. Absence of registration or even the
agreement being not in writing, that would not render
the license to be invalid......."
19B. The contention of the learned counsel appearing for
the Petitioner is that if an agreement of leave and licence
is not registered, in view of sub-section 2 of section 55 of
the said Act, if the a licensee while opposing an
application under section 24 contends that in fact what
was created was a tenancy and not a licence, the said
contention will prevail unless it is proved otherwise by
the applicant- licensee. However, sub-section 2 cannot be
read in isolation and it will have to be read with sub-
section 1. The sub-section 1 makes registration of an
agreement of tenancy as well as an agreement of leave
and licence compulsory. That is how in sub-section 2
there is a reference to premises being given on leave and
licence or the premises being let out to the tenant. Sub-
section 2 cannot be so interpreted that it will nullify
clause (b) of explanation to section 24. Both the
provisions will have to be harmoniously construed. It
must noted here that a special remedy for eviction of
licensees under section 24 of the said Act is available
only to premises given on licence for residential use.
Section 55 is applicable not only to licence which is
covered by section 24 but also to the licence granted in
respect of premises for a use other than residential. The
effect of sub-section 2 of section 55 is that in case of
licence granted for non-residential use, if the agreement
is not registered, it will be open for the opponent
licensee to contend that the terms and conditions of the
licence agreed between the parties were different from
52- WP-3767-2025.doc
the terms and conditions incorporated under the
agreement of leave and licence. When an application for
eviction of a licensee in respect of license granted for
residential use is made under section 24 of the said Act,
to the leave and licence agreement subject matter of
such application, explanation (b) will apply and the
agreement will to be treated as conclusive evidence of
the facts stated therein.
20. There is one more important aspect of the matter. An
agreement of leave and licence does not require
registration under the Registration Act, 1908 (hereinafter
referred to as the said Act of 1908). Section 49 of the
said Act of 1908 provides that no document which
requires registration either under section 17 or under the
Transfer of Property Act, 1882 can be received as
evidence of any transaction affecting such property
unless it has been registered. Thus section 49 of the said
Act is applicable only to the documents which require
registration either under section 17 of the said Act of
1908 or under the Transfer of Property Act, 1882. Under
the said Act, while providing for consequences of non-
registration, the legislature has not chosen to provide for
drastic consequences as provided under section 49 of the
said Act of 1908. Therefore, non-registration of a
document required to be registered under section 55 of
the said Act attracts limited consequences provided
under sub-section 2 thereof apart from prosecution
under sub-section 3. An unregistered document which
requires registration under section 55 of the said Act can
be read in evidence provided the same is proved and the
same is otherwise admissible in evidence. Section 49 of
the said Act of 1908 will not be applicable to such
document which is required to be registered under
section 55 of the said Act. Therefore, a document which
requires registration under section 55 of the said Act
does not become an invalid document. The presumption
under clause (b) of explanation to section 24 of the said
52- WP-3767-2025.doc
Act is applicable only when an application for eviction is
filed relating to the premises given on licence for
residence. In other proceedings, the said presumption
may not apply. Therefore, notwithstanding the non-
registration of an agreement in writing of leave and
licence in respect of the premises given for residential
use, when an application under section 24 is made, the
clause (b) will apply to such agreement and it will not be
open for the licensee to lead any evidence contrary to the
terms and conditions provided in the said agreement."
(Emphasis added)
10. Thus, the Scheme of Maharashtra Rent Act regarding Special
provisions for recovery of possession in case of landlord entitled to
recover possession of premises given on leave and licence for residence
on expiry of the period of licence as provided under Section 24 of the
Maharashtra Rent Act read with provisions of Chapter VIII concerning
summary disposal of certain Applications is as follows:-
(i) Explanation (b) to section 13-A(2) of the Bombay Rent Act i.e.
Explanation (b) to Section 24 of the Maharashtra Rent Act prescribes a
special rule of evidence. It provides that an agreement of licence in
writing shall be conclusive evidence of the facts stated therein. In view
of this special rule of evidence, this Court has held that it is not
permissible for the Court to go behind the document to find out the real
intention of the parties. The agreement is conclusive evidence that the
transaction is of leave and licence. In other words, it has been held that
the words "conclusive evidence" of the facts stated in the Leave and
Licence Agreement have the effect of shutting out any other evidence on
the subject which might be adduced before the Court. No evidence can
be adduced to contradict it. Conclusive evidence means an absolute
evidence of a fact for all purposes for which it is so made evidence. In
52- WP-3767-2025.doc
view of this special rule of evidence prescribed under the Act Court
cannot go beyond the document to find out the intention of the parties,
the circumstances of the case, the nature of possession etc.
(ii) Once it is provided by the legislature that an agreement of licence
in writing shall be conclusive evidence of the facts stated therein, it
prohibits from leading any other evidence which may affect the
conclusiveness of that evidence. Supreme Court in Smt. Somawanti case
(supra) held that once the law says that certain evidence is conclusive it
shuts out any other evidence which would detract from the
conclusiveness of that evidence. Not only that when a certain evidence
is made conclusive evidence, it prohibits any other evidence to be led
which may detract from the conclusiveness of that evidence, but also
the Court has no option to hold the existence of the fact, when such
evidence is made conclusive.
(iii) Once an execution of the agreement of leave and licence is not
disputed before the Competent Authority in an application under
section 13-A(2) of the Bombay Rent Act/ Section 24 of the Maharashtra
Rent Act based on such leave and licence agreement, it is conclusive
evidence of the facts stated therein and no other evidence can be led
inconsistent with the said facts by either of the parties and is conclusive
between the parties of the facts stated therein. The Competent
Authority has no option but to hold that the facts stated therein do
exist.
(iv) Harmonious reading of section 55(1) and (2) along with the said
Clause (b) in the Explanation to section 24 of the said Act would reveal
that though it is mandatory for the landlord to get the agreement of
leave and license recorded in writing and registered under the
52- WP-3767-2025.doc
Registration Act, 1908, failure in that regard would warrant
consequences as stipulated under section 55 of the said Act, however,
once the matter reaches the stage of evidence, and if there is an
agreement in writing, though not registered, even then the facts stated
in such agreement could be deemed to be conclusively established on
the basis of such written agreement itself and there would be no other
evidence admissible in that regard. In other words, though, in terms of
subsection (2) of section 55 of the said Act, there will be presumptive
value to the contentions of the licensee in respect of the terms and
conditions of the agreement is in writing and even though it is not
registered, the same, as regards the facts stated therein would be
deemed to have been proved conclusively on production of the
agreement itself, and in which case, any presumption arising in relation
to the terms and conditions of the license contrary to the facts stated in
such agreement would stand rebutted.
11. Thus, it is clear that as per the settled legal position, the intention
of the legislature was to give finality to the existence of the facts
occurring in the written Agreement of leave and licence. The legislature
intended to shut out any other evidence which will detract from the
conclusive evidence of that case. The object of expression "conclusive
evidence of facts stated therein" is aimed to give finality to the
establishment of the existence of the fact or facts stated in the Leave
and Licence Agreement. It is settled legal position that once it is
provided by the legislature that an Agreement of Licence in writing shall
be conclusive evidence of the facts stated therein, it prohibits any other
evidence, which may affect the conclusiveness of the evidence. It is a
52- WP-3767-2025.doc
settled legal position that when certain evidence is conclusive, it
prohibits any other evidence to be led which may detract from the
conclusiveness of that evidence. It is a settled legal position that non-
registration of a document required to be registered under Section 55 of
the Maharashtra Rent Act attracts limited consequences provided under
Sub Section 2 thereof apart from prosecution under Sub Section 3. An
unregistered document which requires registration under Section 55 of
the Maharashtra Rent Act can be read in evidence provided the same is
proved and the same is otherwise admissible in evidence. Section 49 of
the Registration Act, 1908 will not be applicable to such document
which is required to be registered under Section 55 of the Maharashtra
Rent Act. Therefore, a document which requires registration under
Section 55 of the Maharashtra Rent Act does not become an invalid
document. The presumption under clause (b) of explanation to Section
24 of the Maharashtra Rent Act is applicable only when an Application
for eviction is filed relating to the premises given on licence for
residence. In other proceedings, the said presumption may not apply.
Therefore, notwithstanding the non-registration of an Agreement in
writing of leave and licence in respect of the premises given for
residential use, when an Application under Section 24 of the
Maharashtra Rent Act is made, the said clause (b) will apply to such an
Agreement and it will not be open for the licencee to lead any evidence
52- WP-3767-2025.doc
contrary to the terms and conditions provided in the said Agreement.
Point No. ii :
Whether the Competent Authority while deciding the Application for
leave to defend filed under Section 43(4) of the Maharashtra Rent
Control Act, 1999 can decide the same dehors the rigours of
explanation 'b' to Section 24 of the Maharashtra Rent Control Act,
1999?
12. In view of the above settled legal position, it is to be considered
whether the Competent Authority, while deciding the Application for
leave to defend can decide the same completely ignoring the
requirement of explanation (b) to Section 24 of the Maharashtra Rent
Act. Explanation (b) to Section 24 of the Maharashtra Rent Act clearly
provides that an Agreement of Licence in writing shall be conclusive
evidence of the facts stated therein. As held by this Court in Mukesh
Dharsibhai Thakkar (supra) in respect of the premises given for
residential use, when an Application under Section 24 is made, said
clause (b) will apply to such a case and it will not be open for the
licencee to lead any evidence contrary to the terms and conditions
provided in the said Agreement.
13. Section 43 of the Maharashtra Rent Act prescribes special
procedure for disposal of Applications filed by the landlord under
Chapter VIII of the Maharashtra Rent Act. Under Chapter VIII Section
41 defines "landlord". Three categories of landlords are contemplated
under said Section 41 viz:-
52- WP-3767-2025.doc
(i) A person who has created a service tenancy;
(ii) A member of the armed forces of the Union or a scientist
or a Government servant or a successor-in-interest;
(iii) A person who has given the premises on licence for
residence or successor-in-interest defined in Section 22;
Thus, it is clear that the provision that Agreement of Licence in writing
shall be conclusive evidence of the facts stated therein will only apply
to the landlord who has filed proceeding under Chapter VIII for
recovery of premises given on leave and licence and the same will not
apply to the other categories of landlords. Section 43(4)(b) of the
Maharashtra Rent Act contemplates that the Competent Authority shall
give to the tenant or licencee, leave to contest the Application if the
affidavit filed by the tenant or licencee discloses such facts, as it would
dis-entitle the landlord from obtaining an order for the recovery of
possession of the premises on the ground specified in Section 22 or
Section 23 or Section 24 of the Maharashtra Rent Act. As set out
herein above, Section 22 is regarding recovery of possession in case of
tenancy created during service period. Section 23 is when members of
armed forces of the Union, scientists or their successor-in-interest
entitled to recover possession of premises required for their occupation
and Section 24 is regarding landlord entitled to recover possession of
any premises given on licence on expiry. Thus, the "landlord"
contemplated under Section 41 of Chapter VIII are three different and
52- WP-3767-2025.doc
distinct types of landlords. Said rule of evidence as contained in
explanation (b) to Sub Section 3 of Section 24 of the Maharashtra Rent
Act will only apply when the residential premises are given on leave
and licence basis to the licencee. Thus, it is clear that the criterias
which are applicable while considering leave application filed by the
tenants who were covered by Sections 22 and 23 is totally different
than the Application filed under Section 24 where the special rule of
evidence is specified. Sub-Section 4(a) of Section 43 of the
Maharashtra Rent Act inter alia provides that licensee on whom the
summons is duly served 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. Sub-Section 4(b) of Section provides
that the Competent Authority shall give to the tenant or licensee, leave
to contest the application if the affidavit filed by the tenant or licensee
discloses such facts as would disentitle the landlord from obtaining an
order for the recovery of possession of the premises, on the ground
specified in section 22 or 23 or 24. Thus, it is clear that while
considering leave Application in the proceeding filed by the licensor
against the licencee as contemplated under Section 24, special rule of
52- WP-3767-2025.doc
evidence as contemplated under explanation (b) to Sub Section 3 of
Section 24 of the Maharashtra Rent Act is required to be considered
and will apply. The licensor can only raise the contentions, even for
obtaining leave, which are permitted by said special rule of evidence
i.e. explanation (b) to Sub Section 3 of Section 24 of the Maharashtra
Rent Act which provides that an Agreement of Licence in writing shall
be conclusive evidence of the fact stated therein. However, it is clarified
that the same will not apply to the case where it is the claim of the
licencee that the Agreement in question has been brought into
existence as a fraud. In that case, however, it is required to be prima
facie, decided by the Competent Authority that the said defence is not
moonshine defence.
Point No. iii :
Whether in the facts and circumstances of this case it is necessary to
grant leave to defend under Section 43(4) of the Maharashtra Rent
Control Act, 1999 to the Respondent?
14. In the light of above legal position it is necessary to see various
clauses of the leave and license agreement dated 16 th June 2018 (Page
Nos.57 to 62). The clause Nos.1, 2, 3 and 6 are very relevant and the
same reads as under :-
"1. The LICENSOR agrees to grants the LICENSEE and
the LICENSEE agreed to take under leave and license
the premise for residential purpose for a period of 24
month with effect from 16th Jun 2018 to 15th Jun
2020.
52- WP-3767-2025.doc
2. The LICENSEE shall can use the said flat for only
residential purpose.
3. This Agreement comes into Force from 16th day of
Jun 2018 to 15th Jun 2020.
6. The LICENSEE shall handover the vacant possession
to the LICENSOR after completion of 24 months."
Thus, it is clear that the period of leave and license agreement is from
16th June 2018 to 15th June 2020. It is further agreed between the
parties that licensee shall hand over possession to the licensor after
completion of 24 months i.e. 15th June 2020. As per Explanation (b) to
Section 24 of the MRC Act, terms and conditions in the written leave
and license agreement are conclusive of the facts stated therein. Thus,
the Competent Authority cannot take into consideration the evidence
which is contrary to the written terms of the leave and license
agreement.
15. It is also required to be noted that the present Respondent has
filed Special Civil Suit No.31 of 2024 seeking specific performance of
the oral agreement. The Application bearing Exhibit-5 filed in said Suit
has been rejected by the learned Civil Judge, Senior Division, Belapur
by order dated 4th November 2024 passed below Exhibit-5 in Special
Civil Suit No.31 of 2024. In view of the said suit pending in the Civil
Court the following observations in Sanath Kumar Sanjib Das (supra)
are very relevant and squarely applicable to the present case.
52- WP-3767-2025.doc
"11. However, while conducting limited enquiry under
the MRC Act it is neither for the Competent Authority
nor for this Court to interpret the terms and conditions
of the MoU or to consider conduct of any party qua
those terms and conditions. This has to be left to the
jurisdiction of the competent Civil Court. If
Plaintiff/Petitioner wants Respondent Nos.1 and 2 to
specifically perform the Mou, he can file suit seeking
specific performance thereof. Mere reference to the
license agreement in the MoU would not clothe the
Competent Authority with jurisdiction to deal with
terms and conditions of the MoU. The license granted
in favour of the Petitioner stands on a different footing
than the agreement for purchase of licensed premises.
The remedies exercisable in respect of two
independent rights are also altogether distinct. I am
therefore of the view that parties can agitate their
grievances in respect of the alleged non-fulfillment of
obligations under MoU before appropriate civil court."
(Emphasis added)
16. Thus, the alleged claim of the oral agreement can not be looked
into by the Competent Authority. Thus, the order passed by the
Additional Divisional Commissioner remanding back the Eviction
Application to the Competent Authority for trial and directing that order
be passed after leading evidence by both the parties, consequently
granting leave to defend is not proper and legal.
17. One of the point raised by the Respondent before the Competent
Authority and Additional Commissioner is that the Eviction Application
filed is barred by limitation. It is the contention of learned Counsel
appearing for the Petitioner that law of limitation is not applicable to
the Application for eviction filed before the Competent Authority under
52- WP-3767-2025.doc
Section 42 of the Maharashtra Rent Act. To support the said contention
learned Counsel for the Petitioner has relied on the decision of this
Court in the case of Sudha Rajendra Mahajan v. Vikas Narayan Patil 7
However, the said point is not raised by the learned Counsel appearing
for the Respondents in this Writ Petition. In any case, it is required to be
noted that the last leave and license agreement was executed on 16 th
June 2018, same expired by efflux of time on 15 th June 2020 and the
Eviction Application is filed on 9th November 2023. The Supreme Court
due to Covid pandemic has suspended the limitation period from 15 th
March 2020 to 28th February 2022. Thus, even if it is assumed that the
Limitation Act, 1963 applies to the said proceedings then also there is
no substance in the said contention.
18. Accordingly, the Writ Petition is allowed by passing following
orders:-
ORDER
(i) Order dated 14th February 2025 passed by the
Additional Divisional Commissioner, Konkan Division,
Mumbai in Revision Application No.747 of 2024 is quashed
and set aside and said Revision Application is dismissed.
(ii) Consequently order dated 9th August 2024 of
Competent Authority, Rent Control Act Court, Konkan
Division in Eviction Application No.247 of 2024 stands
7 2024 SCC OnLine 2111
52- WP-3767-2025.doc
restored.
19. Accordingly, the Writ Petition is allowed in above terms with no
order as to costs.
[MADHAV J. JAMDAR, J.]
