M/S. Sails India vs Mrs. Rita M.

Rupani on 24 September, 1996

Bombay High Court

M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996
Equivalent citations: AIR 1997 Bom 247, 1997 (2) BomCR 151, 1997 (2) MhLj 269
Bench: R Lodha
ORDER

1. Rule returnable forthwith. By consent, the Civil Revision Application is heard finally at this stage.

2. On 30-7-1996, the Competent Authority (Rent Act), Konkan Division, Bombay, allowed the
application made by the respondent herein Mrs. Rita M. Rupani under Section 13-A2 of the Bombay
Rents, Hotel and Lodging house Rate Control Act, 1947 (for short 'Bombay Rent Control Act') and
directed the present applicant M/s Sails India to hand over vacant and peaceful possession of the
premises in question i.e. one Hall, one Bedroom, one bath room with W.C. of Rizvi park 5th floor
Rizvi Park Co-operative Housing Society Ltd., S.V. Road, Santacruz (West) Bombay within 30 days
of the passing of the impugned order and also directed the present revisionist to pay leave and
license fee i.e. Rs. 12,000/- per months as compensation from and after 1st February, 1994 till the
possession is handed over. This order came to be passed on the application made by Mrs. Rita M.
Rupani respondent herein (for short 'Licensor') before the Competent Authority. It was inter alia
averred in the application by the licensor that the application herein M/s. Sails India (for short
`Licensee') executed a leave and licence agreement on 1-4-1992 whereby the licensor agreed to give
part of her residential Flat No. 501/ A at Rizvi Park, consisting of one Hall, one room and one Tiolet
except the premises occupied by Sargur Pharmaceuticals (for short `disputed premises') on leave
and licence basis for use by the licensee for a period of 11 months and the licensee agreed to pay
compensation at the rate of Rs. 6,000/- per months for the aforesaid premises. It is the further case
of the licensor that on expiry of the leave and licence agreement dated 1-4-1992, another leave and
licence agreement was executed on 16-3-1993 whereby the licensor agreed to give the disputed
premises on licence for use by the licensee for peaceful residential purposes for a period 11 months
and the licensee agreed to pay compensation at the rate Rs. 6,000/- per months. On expiry of the
said license when the licensee did not hand over peaceful vacant possession of the disputed premises
to the licensor, the application was made by the licensor before the competent Authority praying
therein that licensee be directed to hand over quiet, vacant and peaceful possession of the disputed
premises to the licensor and the license be also directed to pay damages at double the rate of
compensation at the rate of Rs. 12,000/- per months from and after 1st February 1994. Ancillary
relief of interest on outstanding amount of damage was also sought by the licensor.

3. The license contested the application made by the licensor and set up the defence that in fact the
premise were taken on tenancy and the agreement for tenancy was styled as leave and licence
agreement. The licensee set up the plea that the application before the Competent Authority was not
maintainable and the premises were also taken for non-residential use.

4.The parties led evidence before the Competent Authority and after enquiry, the Competent
Authority held that he has power and jurisdiction to entertain and try the application. It was also
held by the Competent Authority that the application made by the licensor under Section 13-A2 of
the Bombay Rent Control Act was maintainable. The Competent Authority also reached the

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 M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996

conclusion that the licensor has proved that the disputed premises were given to the licensee for
residential purposes and that the document was a document for leave and license was and not
colourable document and camouflage to circumvent the provisions of the Bombay Rent Act.
Accordingly, as indicated above the Competent Authority by order dated 30-7-1996 allowed the
application and directed the license to had over the vacant and peaceful possession of the premises
to the licensor.

5. The licensee in the present revision application takes exception to the aforesaid order.

6. Mr. A.V. Anturkar, the learned counsel for the revisionist-licence has raised two-fold submission
(I) that the explanation (b) to section 13-A2 provides that an agreement of licence in writing shall be
conclusive evidence of the fact stated therein cannot be equated with expression "conclusive proof"
occurring in Section 4 of the Indian Evidence Act, 1872. According to him the Legislature has
deliberately not used the term 'conclusive proof' on explanation (b) and, therefore, it is open to the
alleged licensee to challenge in the proceedings under Section 13-A2 the correctness of socalled
leave and license agreement and also lead evidence and prove that in fact the said agreement was
not leave and licence agreement but tenancy agreement and (ii) that the revisionist-licensee is a
non-individual the licensee which is incapable of taking the premises for the residential purposes
and, therefore, such licensee is beyond the purview and scope of Section 13-A2 of the Bombay Rent
Act and Competent Authority has no jurisdiction.

7. Responding to the contention raised by the learned counsel for the petitioner, on the other hand
Mr. Vakil, the learned counsel for the respondent submitted that the explanation (b) in Section
13-A2 which provides that for the purposes of section 13-A2 an agreement of licence in writing shall
be conclusive evidence of the fact stated therein is a special provision and when the Legislature has
provided that an agreement of licence in writing shall be conclusive evidence of fact stated therein,
no other evidence can be led to prove otherwise. Mr. Vakil relied on Automatic Electric Ltd. Wadala,
Bombay v. Sharachandra Vinayak Tipnis, (1996) 1 Mah LJ619; Amarjit Singh v. R.N. Gupta, and
Swami Attah alia Repheal Alfandary v. Mrs. Thrity Poonawalla, . The learned counsel for the
respondent also contends that Section 13-A2 applies to all licensees who have taken the premises on
licence for residenal purposes whether by the individual or non-individual and no distinction can be
done between the individual licensee and non-individual licensee.

8. Coming to the first contention raised by the learned counsel for the petitioner first, it would be
advantageous to first refer to the relevant provision of Section 13-A2 of the Bombay Rent Control
Act and the definition of `evidence' 'fact' and the 'conclusive proof' in the Indian Evidence Act, 1872.

9. section 13-A2 of the Bombay Rent Control Act reads thus:-

13A2. Landlord entitled to recover possesion of premises given on licence on expiry of license. (1)
Notwithstanding anything contained in this Act, a licensee in possession on occupation of premises
given to him or occupation of premises given to him on license 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 premisses, a landlord shall be entitled to recover

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 M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996

possesion 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 he
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" 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 sated therein."

"Fact" under the Evidence Act means and includes:-

"(1) any thing, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious."

"Evidence" under Section 3 of the Evidence Act means and includes:-

(1) all statement which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry;

such statements are called oral evidence;

(2) all documents produced for the inspection of the Court;

such documents are called documentary evidence."

According to Section 4 of the Evidence Act, "Conclusive proof" has been defined as:-

"When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of
the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of
disproving it."

A close scerutiny of the definition of "fact", "evidence" and "conclusive proof" occurring in Indian
Evidence Act would show that the said expressions and words have been defined for the purposes

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 M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996

whenever such words and expressions are used in the Indian Evidence Act. Explanation in Section
13-A2 provides a special rule of evidence for the purposes of Section 13-A2 and that special rule of
evidence prevails for the purposes of the proceedings under Section 13-A2 of the Bombay Rent
Control Act. Explanation (b) occurring in Section 13-A2(2) which provides that for the purposes of
this section an agreement of licence in writing shall be conclusive evidence of the fact stated therein
is unambiguous in its term and makes it clear that an agreement of licence in writing proves
conclusively all the facts stated therein. When an agreement of licence which is in writing is made
conclusive evidence of the facts stated therein, obvisoulsy the Legislature has not intended to permit
any other evidence to be led by the parties to disprove the facts stated in written agreement of
licence. There is no merit in the contention of the learned counsel for the petitioner that since the
Legislature has not deliberately used the expression "conclusive proof" in explanation (b) and has
used the expression "conclusive evidence of the fact stated therein", the said agreement of licence
which is in writing, cannot be said to conclusive proof of the facts stated therein. The distinction
drawn by the learned counsel for the petitioner in fact is no distinction in eye of law and the
expression used by the Legislature that an agreement of licence in writing shall be conclusive
evidence of fact stated therein indicates that the Legislature by providing the special mode of
evidence has not permitted any party to disprove the fact stated in an agreement of licence which is
in writing.

10. In Automatic Electirc Ltd., Wadala, Bombay v. Sharadchandra Vinayak Tipnis (1996 (1) Mah LJ
619) (cited supra), the learned single Judge of this Court while referring to explanation (b) to
Section 13-A2 observed that the phrase used is conclusive evidence of the fact stated therein and in
view of this explanation it is not possible to go behind it and spell out some other agreement. The
same view is expressed in Amarjit Singh v. R.N. Gupta's case . (cited supra) wherein it is observed
that a special rule of evidence is prescribed in Section 13-A2 which provides that an agreement of
licence shall be conclusive proof of facts stated therein and in view of this special rule of evidence
the Court cannot go beyond the document. It is true that in none of the aforesaid decisions the Court
has considered the expression "conclusive evidence of the fact stated therein" in contradistinction to
the expression "conclusive proof" as argued by the learned counsel for the petitioner but inmy view
the argument is superfluous and the difference is no difference. The expression "conclusive evidence
of the fact stated therein " only means that no other evidence can be allowed to be given for the
purposes of disproving the facts stated in the leave and licence agreement which is in writing. In
other words under Section 13-A2(3)(b) an agreement of licence in writing is conclusive proof of the
facts stated therein. The first contention raised by the learned counsel for the petitioner has,
therefore, no merit and is accordingly negatived.

11. The second contention raised by the learned counsel for the petitioner is particularly with
reference to the word used "him" in sub-section (1) of Section 13-A2 and "he" in sub-section (2) of
Section 13-A2 and on the basis of these words occurring in sub-section (1) and sub-section (2) of
Section 13-A2, it is contended by the learned counsel for the petitioner that a non-individual
licensee is not included in Section 13-A2 because it is incapable of taking the premises for residence
and, therefore, such licensees are beyond the scope of Section 13-A2.

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 M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996

12. To buttress his argument, the learned counsel for the petitioner relied on Section 13 of the
Bombay General Clauses Act, 1904 which states that in all Bombay Acts (all Maharashtra Acts)
unless there is anything repugnant on the subject to the context, the words importing masculine
gender shall be taken to include females.

13. I am afraid, a bare perusal of S. 13-A2 does not envisage the distinction drawn by the learned
counsel for the petitioner between the individual licensee and a non-individual licensee. What is
contemplated by S. 13-A2 of the Bombay Rent Control Act is the entitlement of the licensor to
recover possession of premises given on licence on expiry of licence and it provides that a licensee in
possession of premises given on licence on expiry of licence and it provides that a licensee in
possession or occupation of premises given to him on licence shall delivery the said 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, the landlord shall be entitled to recover possession of such
premises from the licensee on expiry of the period of licence by making an application to the
Competent Authority. If a licensee has taken possession or occupation of the premises on licence for
residence, he is covered under S. 13-A2 whether he is an individual he or she or any other entity. The
word "him" used in sub-sec. (1) of S. 13-A2 does not confine the licensees who are he or she but
includes the licensees who have taken the premises on license in any other capacity. What is
material is that the licensee must have taken possession or occupation of the premises on licence for
residence whether he is individual or any other entity The expression "him" or "he" occurring in
sub-secs. (1) and (2) of S. 13-A2 respectively, as indicated above is not confined to an individual "he"
or "she" but all other entities. Even otherwise under S. 13 of the Bombay General Clauses Act, when
it provides that the words importing masculine gender shall be taken to include females, it only
provides the inclusive definition of the word importing the masculine gender but does not exclude
others. Moreover, the dominent expression S. 13-A2 is "licensee" and not "him" or "he" occurring in
sub-sec. (1) and. Sub-sec. (2) respectively of S. 13-A2 and, therefore, once a licensee is in possession
or occupation of the premises given to him on licensee for residence and the possession is not
delivered by the licensee on expiry of licence, a special remedy is made available to the licensor
under S. 13-A2. In this view of the matter, the second contention raised by the learned counsel for
the petitioner is also without any substance.

14. From the bare perusal of the leave and licence agreement dated 16-3-1993 it is apparent that the
disputed premises were given on licence to the revisionist licensee for use of the premises for
peaceful residential purposes and, therefore, apparently the licensee is covered under S. 13-A2 and
the Competent Authority did not commit any error of jurisdiction in holding that it has jurisdiction
to try and entertain the application under S. 13-A2.

15. No other point has been advanced by the learned counsel for the petitioner.

16. The order passed by the Competent Authority therefore does not call for any interference by this
Court in its revisional jurisdiction.

17. The Civil Revision Application has no merit and is accordingly dismissed. Rule is discharged. No
costs.

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 M/S. Sails India vs Mrs. Rita M. Rupani on 24 September, 1996

18. Mr. Anturkar, the learned counsel for the petitioner at this stage orally prays that for a period of
four weeks the impugned order passed by the competent Authority and the present order may not
be implemented to enable the petitioner to move the Apex Court. Mr. Anturkar further submits that
within 7 days from today, his client would deposit the entire arrears of compensation as directed by
the Competent Authority before the said Authority and shall also furnish an undertaking before this
Court that if within a period of four weeks the petitioner is not able to get any order from the Apex
Court, it would hand over peaceful vacant possession of the disputed premises to the respondent.
Mr. Vakil, the learned counsel for the respondent opposes the prayer. In the interest of justice, I
direct that for a period of four weeks the order passed by the Competent Authority and this Court
shall not be implemented provided the petitioner deposits the entire arrears of compensation at the
rate provided by the Competent Authority before the said Authority within one week from today and
also file an undertaking before this Court within one week that in the absence of any order otherwise
by the Apex Court, the petitioner shall hand over peaceful vacant possession of the disputed
premises to the respondent on expiry of four weeks from today.

19. Certified copy expedited.

Revision dismissed.

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