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2014 DIGILAW 1402 (BOM)

Zeeta S. Cruz v. Anil Pradeep Sachdev

2014-07-02

K.K.TATED

body2014
Judgment : 1. Heard the learned counsel for the parties. By this Civil Revision Application, the Applicant challenges the order dated 30th September 2013 passed by the Additional Commissioner, Konkan Division, Mumbai rejecting the Applicant's Revision Application under section 44 of the Maharashtra Rent Control Act, 1999 (MRC Act) in Appeal/Desk/MRCA/ REV/492/2012 upholding the order dated 28th August 2012 passed by the Competent Authority, Konkan Division, Mumbai under the MRC Act rejecting the Application filed by the Applicant for leave to defend case No.2 of 2012 and passing the order directing the Applicant to hand over vacant and peaceful possession of the suit premises i.e. Flat No.4, ground floor Sweet Home, Shere Punjab Complex, Plot No.286, (CST No.368/1096) adm. 766 sq. yards, Andheri (E), Mumbai 400 093 admeasuring area 360 sq.ft. (suit flat) to the Respondent original Applicant and also directing the Applicant to pay sum of Rs.1,23,600/-towards outstanding dues in respect of the suit flat and Rs.31,460/- p.m. from 1st January 2012 till handing over vacant possession of the suit to the Respondent. 2. Few facts of the matter are, as under: The Respondent original Applicant is owner of the suit premises. By leave and license agreement dated 25th May 2009 he handed over the suit flat to the Applicant for temporary period of 33 months (three blocks of 11 months each) on terms and conditions stated in the leave and license agreement. As the Applicant started using the suit flat for commercial activities and causing nuisance in the building premises, the Respondent issued legal notice dated 18th November 2011 through his Advocate to the Applicant calling upon her to hand over vacant and peaceful possession of the suit flat. 3. In reply to the said legal notice, the Applicant, through her Advocate replied the said notice by letter dated 14th December 2011 and denied the allegations made by the Respondent. As the Applicant failed to hand over vacant and peaceful possession of the suit flat, the Respondent preferred Application No.2 of 2012 before the Competent Authority at Bandra (Konkan Division) under Section 24 of the MRC Act for vacant and peaceful possession of the suit flat along with compensation from the date of expiry of notice dated 18th November 2011 @ Rs.31,460/- pm or any amount which the Competent Authority thinks fit and proper till handing over the suit flat. 4. 4. In the said Application, the Applicant preferred Application dated 17th February 2012 for leave to defend the said matter on the ground that the Respondent himself allowed the Applicant to use the suit flat to carry out commercial activities i.e. Kerala Ayurvedic Treatment Center. She further submits in her Application that the Applicant was ready and willing to pay monthly charges as per the leave and license agreement dated 25th May 2009. The Applicant, in that Application for leave to defend raised objection that though the agreement dated 25th May 2009 styled as leave and license agreement, the actual intention of the parties was to create tenancy in the suit flat. In the said Application she submitted that the Respondent informed the Applicant that the flat being held by the Hindu Undivided Family (HUF) it is not possible for him to create and/or execute the tenancy agreement and therefore the tenancy was created in the form of leave and license agreement. In the said Application for leave to defend, the Applicant further stated that being a tenant, the Competent Authority has no jurisdiction under section 24 of the MRC Act to entertain the Application. 5. The Competent Authority, by its order dated 28th August 2012 rejected the Applicant's Application for leave to defend the said proceedings and directed the Applicant to hand over vacant and peaceful possession of the suit flat to the Respondent and also to pay compensation and license fees. The said order was challenged by the Applicant before the Commissioner for Greater Mumbai, Konkan Division by preferring a Revision under section 44 of the MRC Act. The Appellate Authority, by its order dated 30th September 2013 dismissed the Revision Application and upheld the order passed by the Competent Authority, Bandra, Mumbai in Application No.2 of 2012 dated 28th August 2012. Hence, the present Civil Revision Application. 6. The learned counsel for the Applicant submits that both the Authorities below failed to appreciate that the Respondent, by agreement dated 25th May 2009 created tenancy in favour of the Applicant. Moreover, the Respondent also permitted the Applicant to use the said premises for commercial activities by his Email dated 6th May 2009 which reads thus: "Dear Madam, I hereby allow and give you permission to carry out Kerala Ayurvedic Treatment at the premises which I have leased to you. I have no objection from my side." 7. Moreover, the Respondent also permitted the Applicant to use the said premises for commercial activities by his Email dated 6th May 2009 which reads thus: "Dear Madam, I hereby allow and give you permission to carry out Kerala Ayurvedic Treatment at the premises which I have leased to you. I have no objection from my side." 7. The learned counsel for the Applicant submits that bare reading of leave and license agreement dated 25th May 2009 shows that the intention of the parties was to create tenancy in respect of the suit flat and not leave and license for 33 months. He submits that these facts are not considered by both the Authorities below and erred in directing the Applicant to hand over vacant and peaceful possession of the suit flat to the Respondent. He further submits that the learned Competent Authority has not given any finding or reasons for refusing to grant Application for leave to defend, save for holding that the claim for tenancy set up by the Applicant cannot be sustained in the light of the execution of the agreement which was titled as "leave and license agreement". The order of the learned Competent Authority in the absence of any reason is nullity and cannot be sustained. He further submits that the learned Competent Authority failed to appreciate that, question, whether the contract between the parties was that of licensee or tenancy goes to the root of the jurisdiction of the said Competent Authority to decide the dispute before him and as such Authority seriously erred by refusing leave to defend the Application and has prejudicially shut out the Applicant from leading evidence and establishing the actual relation between the parties which would have, in turn, demonstrated that the Authorities had no jurisdiction to try the dispute. 8. The learned counsel for the Applicant further submits that the learned Competent Authority has seriously erred by failing to consider the Email dated 6th May 2009 sent by Respondent to the Applicant which categorically recorded no-objection of the Respondent for the use of the suit flat for commercial purpose. 8. The learned counsel for the Applicant further submits that the learned Competent Authority has seriously erred by failing to consider the Email dated 6th May 2009 sent by Respondent to the Applicant which categorically recorded no-objection of the Respondent for the use of the suit flat for commercial purpose. The learned counsel for the Applicant submits that the Competent Authority ought to have granted leave to defend the Application filed by the Respondent under section 24 of the MRC Act on the basis of the fact that the clauses of the agreement dated 25th May 2009 shows that the Applicant entered into suit flat as a tenant. On the basis of this submission, the learned counsel for the Applicant submits that the orders passed by the lower Authorities are liable to be set aside. He further submits that if the Civil Revision Application is not allowed, irreparable loss, harm and injury will be caused to the Applicant, as on today, the Applicant is in possession of the suit flat and doing her commercial activities such as Kerala Ayurvedic Treatment Center. 9. The learned counsel for the Applicant further submits that both the Authorities below, without giving any opportunity to the Applicant to show that the suit premises was handed over to the Applicant by leave and license agreement dated 25th May 2009 for commercial purposes, passed impugned orders which are against justice, equity and good conscience. In support of this contention, he relies on the judgments of the Apex Court in the matter of Precision Steel & Engineering Works and Anr. Vs. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 and Inderjeet Kaur Vs. Nirpal Singh 2001(1) SCC 706 . 10. On the other hand, the learned counsel for the Respondent original Applicant vehemently opposed the present Civil Revision Application. He submits that both the Authorities below categorically held that as per the terms and conditions of the leave and license agreement dated 25th May 2009, the suit flat was handed over to the Applicant only for 33 months and that too for residential purpose. He submits that the suit flat is situated in a residential society and there is no permission from Mumbai Municipal Corporation and/or any Authority to use the said flat for commercial activities such as Kerala Ayurvedic Treatment Center. He submits that the suit flat is situated in a residential society and there is no permission from Mumbai Municipal Corporation and/or any Authority to use the said flat for commercial activities such as Kerala Ayurvedic Treatment Center. He submits that bare reading of the terms and conditions of the leave and license agreement shows that the intention of the parties was to allow the Applicant to use the suit flat only for 33 months and that too for residential purpose. As the Applicant failed and neglected to comply the terms and conditions of the said agreement for leave and license, the Respondent issued legal notice to the Applicant terminating the said agreement and called upon the Applicant to hand over vacant and peaceful possession of the suit flat. He submits that as per Article 36A of the Bombay Stamp Act, 1958, the stamp duty is payable on leave and license agreement for 33 months for residential purpose is Rs.2250/-. He submits that in the present proceedings, the Respondent paid stamp duty of Rs.2250/-plus Rs.10/- service charges. This itself shows that the intention of the parties was to let out the suit flat for residential purpose only. He further submits that if the premises is let out for commercial purposes, then more stamp duty attracts. These facts have been considered by both the Authorities below. He submits that in view of section 4 of the Evidence Act, whatever is stated in the instrument is to be treated as conclusive proof. Therefore, both the Authorities below concurrently held that the Applicant failed to comply the terms and conditions of the leave and license agreement dated 25th May 2009 and started using the said flat for commercial purposes. On the basis of these facts, both the Authorities below directed the Applicant to hand over vacant and peaceful possession of the suit flat to the Respondent along with compensation. Hence, there is no substance in the present Civil Revision Application and same is liable to be dismissed with costs. 11. I heard both sides at length. I have gone through the record and proceedings of both the Authorities below. In the present proceedings, admittedly, the Respondent handed over the suit flat to the Applicant by leave and license agreement dated 25th May 2009 for 33 months. The said flat is situated in a residential housing society. 11. I heard both sides at length. I have gone through the record and proceedings of both the Authorities below. In the present proceedings, admittedly, the Respondent handed over the suit flat to the Applicant by leave and license agreement dated 25th May 2009 for 33 months. The said flat is situated in a residential housing society. The Applicant has not placed on record any documentary evidence to show that he obtained permission either from Mumbai Municipal Corporation and/or any other Authority to carry on commercial activity i.e. Kerala Ayurvedic Treatment Center. As the Applicant started commercial activities in the suit flat, the Respondent owner of the flat issued legal notice terminating the leave and license agreement and called upon the Applicant to hand over vacant and peaceful possession of the suit flat. Even the notice issued by the Reliance Energy Ltd. shows that the Applicant started commercial activities in the suit premises. Bare reading of the terms and conditions of the leave and license agreement dated 25th May 2009 shows that the suit premises was handed over to the Applicant for residential purpose only. The stamp duty paid by the Respondent on leave and license agreement dated 25th May 2009 under Article 36A of the Bombay Stamp Act 1958 shows that the same was registered on the basis that the suit flat was handed over to the Respondent for residential purposes. Even the Email which is relied on by the Applicant in support of her contention cannot be considered because the same was not part and parcel of the leave and license agreement dated 25th May 2009. All these facts are considered by both the Authorities below. Even the contention raised by the Applicant about the tenancy is rejected by both the Authorities on its own merits. 12. The authorities cited by the Applicant in the present proceedings are not applicable in the facts and circumstances of the present case as these authorities are in respect of the relationship of landlord and tenant whereas in the present proceedings the issue involved is about the leave and license agreement dated 25th May 2009. 13. Considering the reasons given by both the Authorities below, I am of the opinion that the Applicant failed to justify that the suit flat was handed over to her by way of tenancy for commercial purposes. 13. Considering the reasons given by both the Authorities below, I am of the opinion that the Applicant failed to justify that the suit flat was handed over to her by way of tenancy for commercial purposes. Hence, the orders passed by both the Authorities below do not require any interference in the present Civil Revision Application. Hence, Civil Revision Application stands dismissed. 14. At this stage, the learned counsel for the Applicant seeks stay of this order for four weeks. Considering the fact that the leave and license agreement dated 25th May 2009 was only for 33 months and that too for residential purpose and the Applicant started commercial activities which is contrary to the law, I do not find any reason to stay this order. Hence, oral request made by the learned counsel for the Applicant is rejected.