Whether competent authority under Maharashtra rent control Act should conduct regular trial?

Comparison   of   provisions   of   Maharashtra   Rent   Act   and 
Delhi   Rent   Act   shows   that   provisions   like   sub­section   (3)   and 
explanation (b) for the purpose of section 24 of the Maharashtra Rent 
Act are not there in the Delhi Rent Act. Section 24(3) lays down that 
the   Competent   Authority   shall   not   entertain   any   claim   of   whatever 
nature  from  any  other   person  who   is not  licensee  according  to  the 
agreement of licence. Explanation (b) for the purpose of section 24 

provides that an agreement of licence in writing shall be conclusive 
evidence   of   fact   stated   therein.     Such   provision   is   not   there   in   the 
Delhi Rent Act.  That apart, the ratio laid down by the Apex Court in 
the cases of Precision Steel & Engineering Works & Indrajeet Kaur 
(supra) will  apply to the eviction proceedings under sections 15 & 16 
that   are   to   be   tried   by   the   Court   specified   in   section   33   of   the 
Maharashtra Rent Act.  For deciding the proceedings under sections 15 
& 16 of the Maharashtra Rent Act, the regular trial is required to be 

conducted and explanation (b) to section 24 and provisions of Chapter 
VIII are not applicable to such proceedings.   The proceedings under 
Chapter VIII are to be tried by the  Competent Authority keeping in 
mind provisions of section 24 and Chapter VIII viz. sections 39, 41 to 
44 and 47 of the Maharashtra Rent Act and not by the Court specified 
by section 33.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3886 OF 2010
WITH
CIVIL APPLICATION NO. 2184 OF 2010

AMI Merchandising Pvt.Ltd Vs. State of Maharashtra and others


CORAM :   R.G.KETKAR, J.
                
  PRONOUNCED ON :   03rd April,  2014

Citation;2014(4) ALLMR 643 Bom


By this petition under Article 227 of the Constitution of 
India, the petitioners have challenged i) the judgment and order dated 

14/07/2008 rejecting the application made by the petitioners for leave 
to defend ii) the  order dated  14/07/2008  rejecting the  Intervenor's 
Application dated 11/06/2008 filed by one Mr.Nirav Modi  and iii) the 
judgment   and   order   dated   14/07/2008   passed   by   the   Competent 
Authority   (Rent   Act)   Konkan   Division,   Mumbai   (for   short   'the 
Competent Authority') in Case No. 7 of 2008 allowing the application 
made   by   the   respondents   No.   4   &   5   under   section   24   of   the 
Maharashtra   Rent   Control   Act,   1999   (for   short   'Maharashtra   Rent 

Act').     The   petitioners   were   directed   to   hand   over   the   vacant   and 
peaceful possession of the premises as more particularly described in 
paragraph 1 of judgment i.e. 
a.  Apartment No.1 admeasuring 510.43 sq.meters (5492.43 
sq.ft)   built   up   area   on   the   ground   floor   of   the   said  
property.
b. One covered card park under the shed admeasuring 12.5 
sq. meters and open car parking space admeasuring 12.5 
sq.meters,   both   in   the   front   compound   of   the   said  
property.
c. Right   to   use   the   rear   area   of   the   said   property  
admeasuring about 82.15 sq. meters for parking vehicles 
situated at the lower ground level of the said property,  
which was  to be used as a common passage jointly with 
the owners and/or other occupants of the said property.
d. Joint user of the front garden admeasuring about 173.43 
sq. meters in the front compound of the said property, to 
be used by the Licensee's directors, their immediate family 
members   and   invitees   jointly   with   the   owners   as   and  
when required subject to certain conditions provided in  
Clause 11 of the said agreement.
e. Residential  Apartment No.2 admeasuring about 431.34  
sq.meters (4641.33 sq.ft.) built up area on a portion of  
the 1st floor of the said property.
f. One covered car park under the shed admeasuring about 
12.5   sq.meters   and   one   open   car   parking   space  

admeasuring 12.5 sq.meters , both in the front compound 
of the said property.
(for   short   'suit   premises')   to   the   respondents   No.   4   &   5.     The 
petitioners were directed  to pay the  arrears of compensation  at the 
agreed rate of Rs. 1 lac per month for the period from 27/06/2006 to 
27/02/2008 and further to pay the damages to the respondents No. 4 
& 5 at a double rate of compensation per month from 28/02/2008 till 
handing over possession of the suit premises to them.   Respondents 
No. 4 & 5 were ordered to return balance amount of security deposit 
ig
after   deducting   arrears   of   compensation   and   damages   to   the 
petitioners at the time of receiving vacant and peaceful possession of 
the suit premises from the petitioners.  
The   petitioners   have   also   challenged   the   judgment   and 
3.
order   dated   05/03/2010   passed   by   the   Additional   Commissioner, 
Konkan   Division,   Mumbai   (for   short   'Commissioner')   rejecting   the 
revision application preferred by the petitioners under section 44 of 
the Maharashtra Rent Act.  The Commissioner directed the petitioners 
to pay forthwith a sum of Rs.26 lacs towards arrears of damages upto 
28/02/2010 to the respondents No. 4 & 5 and further directed them to 
pay to them a sum of Rs.2 lacs per month towards damages in the first 
week   of   every   month   from   28/02/2010   onwards   till   handing   over 
vacant and peaceful possession of the suit premises.  Respondents No. 
4 & 5 were directed to refund security deposit of Rs.6 Crores to the 
petitioners upon their handing over vacant and peaceful possession of 

the suit premises.   By prayer clause (b), the petitioners have prayed 
for   quashing   and   setting   aside   warrant   of   possession   dated 
06/03/2010 issued by the Competent Authority.  By prayer clause (c), 
the petitioners have prayed for issue of writ of mandamus or any other 
writ or order or direction restraining respondents No. 1 to 6 in any 
manner acting upon and/or implementing warrant of possession dated 
06/03/2010. The facts and circumstances giving rise to the filing of 
One Ms. Najoo B.Bhiwandiwala, hereinafter referred to as 

4.
present petition briefly stated are as under.
the former owner, was the owner of the property known as “Nepean 
House”,   B.G.   Kher   Marg,   Malbar   Hill,   Mumbai   wherein   the   suit 
premises   is   situate.   Under   the   agreement   dated   28/02/2002,   one 
M/s.Dream Trading Private Company Limited had given to the former 
owner interest free security deposit of Rs.6 crores for due performance 
of the terms and conditions of leave and licence agreement.  The said 
company   however   never   demanded   the   refund   of   the   amount   of 
security   deposit.   The   former   owner   executed   leave   and   licence 
agreement dated 21/03/2003 whereby the petitioners were inducted 
in the suit premises.   The suit premises were given to the petitioners 
for   residential   purpose.     It   appears   that   since   the   execution   of   the 
agreement,   none   occupied   the   suit   premises.     The   petitioners   were 
however   carrying  out additions   and alterations  in  the  suit  premises 
from time to time.    Though the petitioners had agreed to pay security 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  5  :­
         902.wp.3886.10
deposit of Rs.6 Crores at the time of execution of leave and licence 
agreement, the said amount was not paid.  The petitioners claimed to 
have   paid   that   amount   to   M/s.   Dream   Trading   Company   Private 
Limited on behalf of the former owner.   The former owner thereafter 
entered into supplementary agreement on 08/09/2004 which was to 
expire on 27/02/2008.   On 13/12/2007, the former owner sold the 
entire “Nepean House” including the suit premises to the respondents 
No. 4 & 5.  It appears that the former owner had instituted Application 
ig
No. 28 of 2006 against the petitioners alleging breach of the terms and 
conditions   of   the   leave   and   licence   agreement   and   supplementary 
agreement.  The petitioners also instituted L.D Suit No 45/55 of 2006 
for declaration and injunction contending interalia that they have right 
of licence in respect of suit premises upto 27/02/2008.  Respondents 
No. 4 & 5 instituted Case No. 7 of 2008 against the petitioners on or 
about   14/03/2008   on   the   ground   that   the   period   under   leave   and 
licence   agreement   expired   on   27/02/2008.   Respondents   No.  4  &   5 
also claimed that they are shortly moving application for joining them 
as   a   party   in   Application   No.   28   of   2008   instituted   by   the   former 
owner.  
5.
During the  pendency of that application,  one Mr. Nirav 
Modi filed an application on 11/06/2008 for intervention contending 
that the former owner had granted option to him to purchase the suit 
premises and accordingly, he has exercised that option.   He has also 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  6  :­
         902.wp.3886.10
instituted suit bearing No. 1166 of 2006 on the Original Side of this 
Court for specific performance of contract.  Even in Application No. 28 
of 2006 filed by the former owner, he had filed application for joining 
him as a party in that application.   Since he has acquired right, title 
and   interests   in   the   suit   premises,   he   prayed   for   joining   him   as 
respondent in the application.   As noted earlier, the said application 
was rejected by the Competent Authority  on 14/07/2008.
The petitioners filed application  for leave to defend. By 
6.
ig
the judgment and order dated 14/07/2008, the Competent Authority 
rejected that application.   By separate order dated 14/07/2008, the 
Competent   Authority   allowed   the   application   filed   by   respondents 
under section 24 of the Maharashtra Rent Act.
7.
The petitioners instituted Revision Application No. 219 of 
2008   challenging   the   orders   dated   14/07/2008   passed   by   the 
Competent Authority.  By the judgment and order dated 10/01/2009, 
the   Commissioner   set   aside   the   orders   dated   14/07/2008   refusing 
leave   to   defend   as   also   allowing   the   application   filed   by   the 
respondents No. 4 & 5 under section 24 of the Maharashtra Rent Act. 
The Competent Authority was directed not to take any decision till the 
civil   suits   pending   in   the   Small   Causes   Court   and   High   Court   are 
finally decided.  Aggrieved by this decision, the respondents instituted 
Writ Petition  No. 2682 of 2009.   By the  judgment and order dated 
11/09/2009, this Court quashed and set aside the order passed by the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  7  :­
         902.wp.3886.10
Commissioner and restored the revision application to the file of the 
Commissioner.     The   Commissioner   was   directed   to   decide   afresh 
revision application in the light of the observations made in that order 
by   this   Court.     Till   the   disposal   of   the   revision   application   by   the 
Revisional Authority, this Court directed that the order of the eviction 
passed by the Competent Authority   shall not be executed subject to 
condition that the petitioners will not create any third part rights in 
respect   of   the   suit   premises   as   also   will   not   part   with   possession 
ig
thereof.     The   said   judgment   is   since   then   reported   in  Surendra 
8.
B.Agarwal  Vs. AML Merchandising Pvt.Ltd.,  2010(1), Mh.L.J. 223.
In   pursuance   thereof,   the   Commissioner   decided   the 
revision   application   and   confirmed   the   orders   passed   by   the 
Competent Authority.   It is against these orders, the petitioners have 
instituted the present petition under Article 227 of the Constitution of 
India.  
9.
In support of this petition, Mr.Dhakephalkar strenuously 
contended that the Competent Authority committed serious error in 
refusing to grant leave to defend.   He submitted that the petitioners 
have raised substantial defence and triable issues.  In the first place, by 
clause 15 of the leave and licence agreement dated 21/03/2003,  the 
parties acknowledged and recognized an oral agreement between the 
former owner and Mr.Nirav Modi where under Mr.Nirav Modi and/or 
his nominee was granted an option to purchase the suit premises at 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  8  :­
         902.wp.3886.10
any time during the period from 01/04/2003 to  26/02/2008.  In the 
event   of   the   option   holder   exercising   the   aforesaid   option   and 
becoming the owner of the suit premises by execution of appropriate 
agreement(s)   for   sale   or   conveyance(s)   of   the   suit   premises   after 
having paid appropriate stamp duty thereon, as   then applicable, the 
petitioners   herein   were   to   observe,   perform   and   carry   out   their 
obligations  under  this  licence  agreement and  the  licence   created  in 
favour of option holder as purchaser and were to hand over vacant 
ig
and   peaceful   possession   to   the   purchaser   instead   of   licensor   upon 
expiry   or   sooner   determination   of   the   licence.     In   such   event,   the 
option   holder   was   as   a   purchaser,   from   and   after   the   date   of   the 
purchase, to observe and perform his obligations under the leave and 
licence agreement in respect of the suit premise and was on expiry or 
sooner determination and against the petitioners handing over to the 
option holder as a purchaser, vacant and peaceful possession of the 
suit premises, to refund to the petitioners the security deposit paid by 
them   to   the   respondents.     He   submitted   that   in   pursuance   of   this 
clause, Mr.Nirav Modi has instituted suit on the Original Side of this 
Court for specific performance of contract.  The same is pending.  He 
submitted   that   in   view   of   clause   15   of   the   leave   and   licence 
agreement, it is abundantly clear that oral agreement was entered into 
between the former owner and Mr.Nirav Modi whereunder she agreed 
to sell the suit premises to him. He submitted that this was a valid 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  9  :­
         902.wp.3886.10
defence   and   raises   a   triable   issue.     The   defence   so   raised   is   not   a 
moon­shine or illusory just for the sake of opposing the application 
10.
under section 24 of the Maharashtra Rent Act.
Mr.Dhakephalkar   also   relied   upon   clause   12.1   of   the 
agreement   which   entitles   the   petitioners   to   carry   out   structural 
alterations and additions to the suit premises subject to fulfillment of 
the   conditions   stipulated   therein.     In   pursuance   of   this   clause,   the 
petitioners have executed a work of permanent character/nature and 
ig
incurred expenses for the execution thereon.  He, therefore, submitted 
that   the   licence   so   created   by   respondents   No.   4   &   5   in   favour   of 
petitioners cannot be revoked in view of section 60 (b) of the Indian 
Easements   Act,   1882   (for   short   'Easements   Act').     This   is   also   a 
substantial defence to the application filed by respondents No. 4 & 5 
under section 24 of the Maharashtra Rent Act.  He submitted that the 
authorities below committed serious error in refusing to grant leave to 
defend.  He invited my attention to sections 43(4) (a) as also 43(4)(b) 
of   the   Maharashtra   Rent   Act.     He   submitted   that   section   43(4)(b) 
mandates the Competent Authority to give to the tenant or to licensee, 
as the case may be, 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 
suit premises on the ground specified in sections 22 or 23 or 24 of the 
Maharashtra Rent Act. In the present case, the application made by 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  10  :­
         902.wp.3886.10
the   petitioners   for   leave   to   defend   discloses   facts   which   clearly 
disentitle the respondents No. 4 & 5 from obtaining an order for the 
recovery of possession  of the  suit premises on  the  ground  specified 
under   section   24   of   the   Maharashtra   Rent   Act.     In   support   of   his 
submission, he relied upon the decisions of the Apex Court i) in the 
case   of  Precision   Steel   &   Engineering   Works   Vs.   Prem   Deva 
Niranjan Deva Tayal, (1982)3 Supreme Court Cases 270 & in the case 
of ii) Indrajeet Kaur Vs. Nirpal Singh, (2001)1 Supreme Court Cases,  
He invited my attention to the section 25­B of the Delhi 
11.
ig
706
Rent Control Act, 1958 (for short 'Delhi Rent Act') and in particular, 
sub­sections (4) & (5) thereof and submitted that these provisions are 
pari materia with the provisions of sections 43(4)(a) and 43(4) (b) of 
the Maharashtra Rent Act.  The Apex Court in case of  Precision Steel 
&   Engineering   Works  (supra)  observed   in   paragraph   11   that   sub­
section (5) of section 25­B casts a statutory duty on the Controller to 
give   to   the   tenant   leave   to   contest   the   application,   the   only     pre­
condition for exercise of jurisdiction being that the affidavit filed by 
the tenant discloses such facts as would disentitle the landlord from 
obtaining an order for the recovery of possession of the premises. The 
said judgment was followed in case of Indrajeet Kaur (supra.)
12.
Mr.Dhakephalkar   in   all   seriousness   made   grievance 
against   the   order   dated   06/03/2010   passed   by   the   Competent 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  11  :­
         902.wp.3886.10
Authority.   The said order was passed in Misc. Application No. 10 of 
2010 dated 6th March 2010 filed by the respondents No. 4 & 5 under 
section   45   of   the   Maharashtra   Rent   Act   for   issuance   of   warrant   of 
possession against the petitioners directing them to vacate and hand 
over   possession   of   the   suit   premises   to   them.     By   order   dated 
06/03/2010, the   Competent Authority issued warrant of possession 
and respondents No. 4 & 5 obtained possession of the suit premises. 
He submitted that section 45 of the Maharashtra Rent Act lays down 
ig
that if any person refuses or fails to comply with the order of eviction 
made under section  43 within  30 days of the date on which it has 
become   final,   the   Competent   Authority   or   any   other   officer   duly 
authorised by the Competent Authority in his behalf, may evict that 
person from, and take possession of the premises and deliver the same 
to   the   landlord   and   for   that   purpose,   use   such   force   as   may   be 
necessary.     He   submitted   that   the   Competent   Authority   passed   the 
order   on   04/07/2008.     The   Commissioner   dismissed   revision 
application on 05/03/2010 without waiting for 30 days of the date on 
which   the   order   of   the   Competent   Authority   becomes   final,   the 
respondents   No.   4   &   5   made   application   on   06/03/2010   and   the 
Competent   Authority   without   waiting   for   the   expiry   of   the   period 
prescribed under section 45,   passed the order on the same day that 
too   even   without   issuing   notice   to   the   petitioners.     The   petitioners 
were not served with the copy of the application and were also not 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  12  :­
         902.wp.3886.10
heard.  On the basis of the order dated 06/03/2010, the respondents 
No. 4 & 5 executed warrant of possession and obtained possession.  He 
submitted that the Competent Authority committed serious error while 
exercising power in that regard as also the respondents No. 4 & 5 high 
handedly obtained possession of the suit premises within 3 days from 
the date of passing of the order   by the Commissioner even without 
giving any breathing time to the petitioners for challenging the orders 
passed by the authorities below.  He also invited my attention to the 
ig
orders  passed by this Court from time to time during the pendency of 
the   petition.     For   all   these   reasons   he   submitted   that   the   petition 
requires serious consideration.
On   the   other   hand,   Mr.Amit   Jajoo   supported   the 
13.
impugned orders.  He submitted that the former owner had executed 
leave and licence agreement on 21/03/2003 whereby the petitioners 
were   inducted   in   the   suit   premises.     The   former   owner   thereafter 
entered   into   a   supplementary   agreement   dated   08/09/2004   which 
expired on 27/02/2008.  On 13/12/2007, the former owner sold  the 
entire “Nepean House” including suit premises to the respondents No. 
4 & 5.  Respondents No. 4 & 5 instituted Case No. 7 of 2008 against 
the   petitioners     on   or   about   14/03/2008   before   the   Competent 
Authority   on   the   ground   that   the   period   under   leave   and   licence 
agreement expired on 27/02/2008.  He submitted that an agreement 
of licence in writing is conclusive evidence of fact stated therein.  He 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  13  :­
         902.wp.3886.10
heavily   relied   upon   the   decision   of   this   Court   in   case   of  Surendra 
B.Agarwal  (supra)  between the same parties.   He further submitted 
that the decisions of the Apex Court in the cases of Precision Steel & 
Engineering   Works  (supra)  &   Indrajeet   Kaur  (supra)  are   not 
applicable   to   the   facts   of   the   present   case   as   the   proceedings   for 
eviction in those cases were instituted under the provisions of Delhi 
Rent  Act.    The  provisions   of  Delhi  Rent    Act  and the  provisions  of 
Maharashtra Rent Act are not pari materia.  He submitted that in case 
ig
of Surendra B.Agarwal (supra),  it has been held by this Court that all 
that   is   required   to   be   examined   is   (i)   whether   the   applicant   is   a 
licensor and whether the opponent is a licensee (ii) whether there was 
a leave and licence agreement for residential use of the suit premises. 
In a case where a licensee is claiming other rights in relation to the 
premises in dispute, adjudication of such rights cannot be made by the 
Competent   Authority.     In   the   present   case,   the   suit   premises   were 
given on leave and licence for a residential purpose.   He, therefore, 
submitted that the authorities below were fully justified in passing the 
impugned orders.   Insofar as the order dated 06/03/2010 passed by 
the Competent Authority is concerned, Mr.Jajoo was not in a position 
to defend that order.  
14.
I   have   considered   the   rival   submissions   made   by   the 
learned Counsel appearing for the  parties.   I have also perused the 
material on record.     It is not in dispute that the former owner had 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  14  :­
         902.wp.3886.10
executed leave and licence agreement dated 21/03/2003 whereby the 
petitioners were inducted in the suit premises.  The suit premises were 
given to the petitioners for a residential purpose.   The former owner 
thereafter, entered into supplementary agreement dated 08/09/2004 
which   expired   on   27/02/2008.     It   is   also   not   in   dispute   that   on 
13/12/2007,   the   former   owner   sold   the   entire   “Nepean   House” 
including the suit premises to respondents No. 4 & 5.  The petitioners 
have   instituted   L.D.   Suit   No.   45/55   of   2006   for   declaration   and 
ig
injunction   contending   interalia   that   they   have   right   of   licence   in 
respect of the suit premises upto 27/02/2008.  Mr.Nirav Modi has also 
instituted suit bearing No. 1166 of 2006 on the Original Side side of 
this   Court   for   specific   performance   of   contract.     Mr.Dhakephalkar 
submitted  that  under  clause  15  of  the  leave  and licence  agreement 
dated 21/03/2003, the parties acknowledged and recognized an oral 
agreement entered into between the former owner and Mr.Nirav Modi 
whereunder   an   option   to   purchase   the   suit   premises   at   any   time 
during   the   period   from   01/04/2003   to   26/02/2008   was   given.     In 
pursuance of this, Mr.Nirav Modi has instituted a suit on the Original 
Side of this Court for specific performance of contract and the same is 
pending.  He submitted that it is a valid and substantial defence to the 
proceedings   instituted   by   the   respondents   under   section     24   of   the 
Maharashtra Rent Act.  The said defence also raises a triable issue.  He 
also   relied   upon   clause   12.1   of   the   agreement   which   entitles   the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  15  :­
         902.wp.3886.10
petitioner to carry out structural alterations and additions to the suit 
premises.   He submitted that the licence created by the respondents 
No. 4 & 5 in favour of the petitioners cannot be revoked in view of 
section 60(b) of the Easements Act.  This is also a substantial defence 
to the application filed by the respondents No. 4 & 5 under section 24 
of the Maharashtra Rent Act.  The defence so raised by the petitioners 
is not a moon­shine or illusory defence just for the sake of opposing 
the application filed by the respondents No. 4 & 5 under section 24 of 
ig
the Maharashtra Rent Act.  He heavily relied upon the decisions of the 
Apex Court in cases of Precision Steel & Engineering Works (supra) 
& Indrajeet Kaur (supra).
The   contentions   raised   by   Mr.Dhakephalkar   were   also 
15.
raised   before   the   authorities   below.     The   contention   that   Mr.Nirav 
Modi had become owner of the suit premises was considered by the 
Competent Authority from paragraphs 6 to 12.  In paragraph 10, the 
Competent   Authority   observed   that   the   petitioners   admitted   in 
L.D.Suit instituted by them in the Small Causes Court that they are in 
possession of the suit premises on the basis of the leave and licence 
agreement.   It   is   an   admitted   fact   that   as   per   leave   and   licence 
agreement, the petitioners herein are licensee and not Mr.Nirav Modi. 
Section   24(3)   of   the   Maharashtra   Rent   Act   lays   down   that   the 
Competent Authority shall not entertain any claim of whatever nature 
from any other person who is not licensee according to the agreement 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  16  :­
ingale
         902.wp.3886.10
of licence.   The Competent Authority observed that as per leave and 
licence agreement, the petitioners are licensee and not Mr.Nirav Modi 
and consequently, it is not necessary to consider the alleged claim of 
Mr.Modi.    It was further  observed  that  in  L.D.Suit  instituted  in  the 
Small Causes Court Mumbai, an injunction order was passed in favour 
of the petitioners.  In the appeal, order of the trial Court was modified 
and   former   owner   was   temporarily   restrained   from   obstructing   or 
interfering into the possession of the petitioner till its eviction from the 
ig
suit   premises   by   following   due   process   of   law.     The   Competent 
application.  
The   Competent   Authority   considered   the   case   of 
16.
Authority   also   considered   paragraph   7   of   the   leave   to   defend 
irrevocable licence made out by the petitioners on the basis of section 
60(b)   of   the   Easements   Act.     It   was   observed   that   merely   because 
licensee was permitted to make certain additions and alterations in the 
suit premises for more beneficial enjoyment of the premises will not 
amount to creation of irrevocable licence.  After considering section 24 
of the Maharashtra Rent Act and the decision of this Court in case of 
Ramesh Hate Vs. Parvez Bhesania,  1996 Bom.R.C. 517  and  Swani 
Attah Vs. Thrity Poonawala,  1997(i) All India Rent Control General  
513,   it   was   held   that   agreement   of   leave   and   licence   in   writing   is 
conclusive evidence of fact stated therein.   The Competent Authority 
accordingly   allowed   the   application   under   section   24   of   the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  17  :­
         902.wp.3886.10
Maharashtra Rent Act.  
As   far   as   order   dated   05/03/2010   passed   by   the 
17.
Commissioner   is   concerned,   in   paragraph   5,   the   Commissioner 
adverted to section 24 of the Maharashtra Rent Act and the fact that 
the petitioner herein accepted existence of registered leave and licence 
agreement dated 21/03/2003. The Commissioner also considered the 
case of irrevocable licence made out by the petitioners on the basis of 
section 60(b) of the Easements Act and considered the decision of the 
ig
Kerala High Court in case of  Geetha Varma Vs. U.K.Amminikutty, 
AIR 1995 Kerala 168 and decision of Karnataka High Court in case of 
Skylines   Advertising   Pvt.Ltd   Vs.National   Airport   Authority,  2005  
ILR (KAR) 4397.   The Commissioner also considered clause 12.5 and 
clause 16 of the leave and licence agreement.   As per clause 12.5 of 
the supplementary agreement, the licensee was to remove at its own 
costs all furniture, fixtures, fittings and additions in the premises made 
or done by the licensee and similarly clause (l) thereof provided that 
the licensee shall pay to the licensor Rs. 1.50 Crores as compensation 
for  restoration  of  the   premises to  its   original  condition.    Clause   16 
provided that nothing contained in the agreement shall be construed 
as creating  any right,  interest,  easement,  tenancy  or  sub­tenancy  in 
favour of licensee in or over or upon the premises or any part thereof 
other than the licence granted.  The Commissioner also noted that the 
petitioner did not produce any document on the basis of which claim 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  18  :­
         902.wp.3886.10
of irrevocable licensee could be sustained.   Insofar as the option to 
purchase   the   suit   premises   by   Mr.Nirav   Modi   is   concerned,   the 
Commissioner recorded in paragraphs 14 and 16 that Advocate for the 
petitioner did not press rights of Mr. Nirav Modi.  That apart, having 
regard to section 24(3) of the Maharashtra Rent Act, I do not find that 
the authorities below committed any error in not entertaining claim 
made by Mr.Nirav Modi being a third party.
Mr.Dhakephalkar heavily relied upon decision of the Apex 
18.
ig
Court in  case of   Precision  Steel  &  Engineering  Works  (supra)  & 
Indrajeet   Kaur  (supra).   It   is   therefore   necessary   to   consider   those 
decisions   in   detail.   Both   these   cases   arose   out   of   the   provisions   of 
Delhi   Rent   Act.     In   case   of  Precision   Steel   &   Engineering   Works 
(supra), the respondent M/s.Prem Deva Niranjan Deva Tayal (HUF) 
through Prem Deva Tayal, constituted attorney of Niranjan Deva Tayal 
(landlord)   instituted  petition   under   section   14  (1)   proviso   (e)  read 
with section 25­B of the Delhi Rent Act for recovery of possession of 
front portion of premises bearing No. B­144, Greater Kailash Part I, 
New Delhi,   on the ground that premises were let out for residential 
purpose   and   are   now   required   by   the   landlord   for   occupation   as 
residence for himself and members of his family dependent on him 
and   that   the   landlord   has   no   other   reasonable   suitable 
accommodation.  To that petition, he impleaded M/s.Precision Steel & 
Engineering Works (tenant), a firm and Shri B.K.Beriwala constituted 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  19  :­
         902.wp.3886.10
attorney of the firm.  After the summons was served on the tenant and 
its   constituted   attorney,   Shri   B.K.Beriwala   appeared   and   filed   an 
affidavit seeking leave to contest eviction petition.   It was contended 
that   lease   was   for   residential­cum­commercial   purpose.     A   specific 
agreement was pleaded that the the tenant which is a partnership was 
entitled   to   use   the   premises   for   residence   of   the   director   and/or 
partner as also for the office purpose.   Reliance was place on clause 
(6)   of   the   licence   agreement   which   according   to   the   tenant 
ig
substantiated   that   it   was   a   contract   of   lease.     The   Apex   Court 
considered the provisions of section 14(1) proviso (e) and 25­B of the 
Delhi   Rent   Act.   In   paragraph   8,   it   was   observed   that   when   the 
summons is served, the tenant cannot straight way proceed to contest 
the   petition   for   eviction   from   the   premises   but   he   must   surrender 
possession or seek leave to contest the petition.  While seeking leave, 
he must file affidavit setting  out the  grounds on which  he  seeks to 
contest the application for eviction.  This is the scheme of section 25­
B(1) and (4).  Section 25­B(5)provides that the Controller is under a 
statutory duty to give leave to the tenant to contest the application if 
the affidavit filed by the tenant discloses such facts as would disentitle 
the landlord from obtaining an order for the recovery of possession of 
the premises on the ground mentioned in section 14(l) proviso (e) i.e. 
bonafide requirement for his personal use or the use of the members 
of his family.
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
19.
            ­:  20  :­
         902.wp.3886.10
In paragraph 9, the Apex Court considered the scheme of 
the Delhi Rent Act also the statutes in other states. It was observed 
that   what   would   the   Court   expect   the   landlord   to   prove   before   he 
seeks  to  recover   possession  from   the   tenant   on  the   ground  that  he 
bonafide   requires   possession   for   his   own   use   or   for   the   use   of   the 
members of his family.   In a catena of decisions it has been decided 
that in order to succeed the landlord should show that the premises 
have been let out as a residence or for residential purposes; that the 
ig
landlord needs to occupy the premises which may imply that either  he 
has   got   no   other   accommodation   in   the   city   or   town   in   which   the 
premises in question are situated or the one in his possession does not 
provide   him   a   suitable   residence   and   he   is   required   to   shift   to   the 
premises in question; that his need is genuine and that it is not merely 
a fanciful desire of an affluent landlord who for the fancy of changing 
the premises would like to shift to the one from which the tenant is 
sought to be evicted; that he is acting bona fide   in approaching the 
court for recovery of possession; and that his demand is reasonable. 
These facts have to be proved to the satisfaction of the court and once 
the trend of judicial opinion as expressed by the court went so far as to 
say that the   court cannot pass a decree on compromise because the 
statute has cast duty on the court to be satisfied about the requirement 
of the  landlord   and a compromise decree was held to be a nullity 
(Bahadur   Singh   V.   Mum   Sabrat   Dass,   (1969)   2   SCR   432   and 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  21  :­
         902.wp.3886.10
Kaushalya Devi V. K.J.Bansal, (1969) 1 SCC 59.   Certain States have 
in   their  respective  legislations  also imposed  an  additional  condition 
before the landlord can obtain possession   for personal requirement 
viz. before making a decree or order of eviction the court must weigh 
the   relative   hardship   of   the   landlord   and   the   tenant   and   if   greater 
hardship   is   likely   to   be   caused   to   tenant,   the   court   is   under   an 
obligation to refuse to pass the decree notwithstanding the fact that 
landlord has proved his requirement.     Restrictions on the landlord's 
ig
unfettered   right   to   re­entry   may   be   stringent   or   not   so   stringent 
depending upon the local situation.   But the underlying thrust of all 
rent   restriction   legislations   universally   recognised   must   not   be   lost 
sight of that the enabling provisions of the Rent Restriction Act are not 
to   be   so   construed   or   interpreted   as   would   make   the   protection 
conferred on the tenant illusory by a liberal approach to the desire of 
the   landlord   to   evict   tenant   under   the   camouflage   of   personal 
requirement. The Apex Court also considered the decision in case of 
Bega Begum Vs. Abdul Ahad Khan  (1979)1 SCC 273, where it was 
held that the expression 'reasonable requirement' in section 11(h) of 
the   Jammu   &   Kashmir   House   and   Shops   Rent   Control   Act,     1966, 
undoubtedly,   postulates that  there  must be an element of need as 
opposed to a mere desire or wish.   In paragraph 10, the Apex Court 
posed a question namely
'when a landlord approaches Controller under section 14(1) 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  22  :­
         902.wp.3886.10
proviso (e), is the court to presume every averment in the 
petition as unchallengeable and truthful?'
  The consequence of refusal to grant leave must stare in 
20.
the face of the Controller that the landlord gets an order of eviction 
without   batting   the   eye   lid.   This   consequence   itself   is   sufficient   to 
liberally approach the prayer for leave to contest the petition. While 
examining the question whether leave to defend ought or ought not to 
be   granted   the   limited   jurisdiction   which   the   Controller   enjoys   is 
ig
prescribed within the well defined limits and he cannot get into a sort 
of   a   trial   by   affidavits   preferring   one   set   to   the   other   and   thus 
concluding the trial without holding the trial itself. Short circuiting the 
proceedings   need   not   masquerade   as   a   strict   compliance   with   sub­
section (5) of section 25B.  The provision is cast in a mandatory form. 
Statutory duty is cast on the Controller to give leave as the legislature 
uses the expression 'the Controller shall give' to the tenant leave to 
contest if the affidavit filed by the tenant discloses such fact as would 
disentitle   the   landlord   for   an   order   for   recovery   of   possession.   The 
Controller has to look at the affidavit of the tenant seeking leave to 
contest. Browsing through the affidavit if there emerges averment of 
facts which on a trial, if believed, would non­suit the landlord, leave 
ought to be granted.  
21.
In   paragraph   11,   it   was   observed   that   upon   a   true 
construction   of   proviso   (e)   to   section   14(1)   it   would   unmistakably 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  23  :­
         902.wp.3886.10
appear that the burden is on the landlord to satisfy the Controller that 
the premises of which possession is sought is; (i) let for residential 
purposes; and (ii) possession of the premises is required bona fide by 
the landlord for occupation as residence for himself or for any member 
of his family etc. and (iii) that the landlord or the person for whose 
benefit   possession   is   sought   has   no   other   reasonably   suitable 
residential   accommodation.   This   burden,   landlord   is   required   to 
discharge before the Controller gets jurisdiction to make an order for 
ig
eviction. This necessarily transpires from the language of section 14(1) 
which precludes the Controller from making any order or decree for 
recovery of possession unless the  landlord proves to his satisfaction 
the   conditions   in   the   enabling   provision   enacted   as   proviso   under 
which possession is sought. Initial burden is thus on the landlord. 
22.
In   paragraph   12,   the   Apex   Court   observed   that   the 
question   is   whether   this   burden   is   in   any   way   diluted   or   stands 
discharged   or   wholly   shifted   to   the   tenant   because   of   a   different 
procedure   prescribed   in   Chapter   III­A   of   the   Act.   Section   25(4) 
provides that in default of the appearance of the tenant 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 
admitted by the tenant and the landlord shall be entitled to an order 
for eviction on the ground set out in section 14(1) proviso (e).  On a 
combined  reading  of  section   14(1)   proviso   (e)  with  section   25B(1) 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  24  :­
         902.wp.3886.10
and (4) the legal position that emerges is that on a proper application 
being   made   in   the   prescribed   manner   which   is   required   to   be 
supported by an affidavit, unless the tenant obtains leave to defend as 
contemplated by sub­ sections (4) and (5) of section 25­B, the tenant 
is deemed to have  admitted all the  averments made in the petition 
filed   by   the   landlord.   The   effect   of   these   provisions   is   that   the 
Controller would act on the admission of the tenant and there is no 
better proof of fact as admission, ordinarily because facts which are 
ig
admitted need not be proved. But what happens if the tenant appears 
pursuant to the summons issued under sub­sec(2) of section 25­B, files 
an   affidavit   stating   the   grounds   on   which   he   seeks   to   contest   the 
application. As a corollary it would transpire that the facts pleaded by 
the   landlord   are   disputed   and   controverted.   How   is   the   Controller 
thereafter to proceed in the matter. It would be open to the landlord 
to contest the application of the tenant seeking leave to contest and 
for that purpose he can file an affidavit in reply but production and 
admission and evaluation of documents at that stage has no place. The 
Controller has to confine himself to the affidavit filed by the tenant 
under sub­section (4) and the reply, if any. On perusing the affidavit 
filed by the tenant and the reply if any filed by landlord, the Controller 
has to pose to himself the only question: Does the affidavit disclose, 
not  prove,  facts  as would  disentitle  the  landlord  from  obtaining  an 
order for the recovery of possession on the ground specified in Clause 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  25  :­
         902.wp.3886.10
(e) of the proviso to section 14(1). The Controller is not to record a 
finding on disputed questions of facts or his preference of one set of 
affidavits   against other  set of  affidavits.   That is not  the  jurisdiction 
conferred   on   the   Controller   by   sub­sec   (5)   because   the   Controller 
while   examining   the   question   whether   there   is   a   proper   case   for 
granting leave to contest the application has to confine himself to the 
affidavit filed by the tenant disclosing such facts as would prima facie 
and not on contest disentitle the landlord from obtaining an order for 
ig
recovery of possession. At the stage when affidavit is filed under sub­
section   (4)   by   the   tenant   and   the   same   is   being   examined   for   the 
purposes of sub­section (5) the Controller has to confine himself only 
to   the   averments   in   the   affidavit   and   the   reply,   if   any,   and   that 
becomes manifestly clear from the language of sub­section (5) that the 
Controller shall give to the tenant leave to contest the application if 
the affidavit filed by the tenant discloses such facts as would disentitle 
the landlord from recovering possession etc. The jurisdiction to grant 
leave to contest or refuse the same is to be exercised on the basis of 
the affidavit filed by the tenant. That alone at that stage is the relevant 
document and one must confine to the averments in the affidavit. If 
the averments in the affidavit disclose such facts which, if ultimately 
proved to the satisfaction of the Court, would disentitle the landlord 
from recovering possession, that by itself makes it obligatory upon the 
Controller   to   grant   leave.   It   is   immaterial   that   facts   alleged   and 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  26  :­
         902.wp.3886.10
disclosed are controverted by the landlord because the stage of proof 
is yet to come. It is distinctly possible that a tenant may fail to make 
good the defence raised by him. Plausibility of the defence raised and 
proof of the same are materially different from each other and one 
cannot bring in the concept of proof at the stage when plausibility has 
to be shown. It was further observed that the regular trial required to 
be held by a Court of Small Causes as contemplated by sub­section (6) 
read with sub­section (7) of section 25­B is not to be substituted by 
ig
affidavits   and   counter­affidavits   at   the   stage   of   considering   tenant's 
affidavit  filed for obtaining leave  to contest the  petition  under sub­
section (4).   Sub­section (6) enjoins a duty on the Controller where 
leave is granted to the tenant to contest the application to commence 
the hearing of the petition as early as practicable and sub­section (6) 
prescribes procedure to be followed as if the Controller is a Court of 
Small   Causes.   The   Court   of   Small   Causes   follows   the   summary 
procedure in the adversary system where witnesses are examined and 
cross­examined and truth of averment is decided on the touchstones of 
cross­examination.   A   speedy   trial   not   conforming   to   the   well­
recognised   principle   of   arriving   at   truth   by   testing   evidence   on   the 
touchstone   of cross­examination,  should  not  be easily  read  into the 
provision   at   a   stage   not   contemplated   by   the   provision   unless   the 
statute   positively   by   a   specific   provision   introduces   the   same.   The 
scheme of section 25­B does not introduce a trial for arriving at the 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  27  :­
ingale
         902.wp.3886.10
truth   at  the   stage   of   proceeding   contemplated  by   subsection   (4)   of 
The   Apex   Court   thereafter   considered   the   provisions   of 
23.
section 25­B.   
Order 37 of C.P.C. & 25­B(5) of the Delhi Rent Act.  After considering 
the   decisions,   ultimately   in   paragraph   15,   it   was   observed   that 
assuming   that   Order   37,   sub­rule   (5)   of   Rule   3   confers   wider 
discretion on the Court that by mere comparison cannot cut down or 
narrow  or  limit  the  power   coupled   with   the   duty   conferred   on  the 
ig
Controller   under   sub­section(5)   of   section   25­B.   Mere   disclosure   of 
facts which when proved in a regular trial which would disentitle the 
landlord to obtain relief, such disclosure only impels the Controller to 
grant leave. It is not necessary to record as required by Order 37 Rule 
5   whether   the   defence   is   substantial   or   frivolous   as   vexatious.   The 
Court found it difficult to subscribe to the view that the jurisdiction 
under section 25­B (5) is very very limited.   
24.
In paragraph 18, it was observed that  it is indisputable 
that while examining the affidavit of the tenant filed under s. 25­B (4) 
for the purpose of granting or refusing to grant leave to contest the 
petition the landlord who has initiated the action has to be heard. It 
would follow as a necessary corollary that the landlord may controvert 
the averments made in the affidavit of the tenant but the decision to 
grant   or   refuse   leave   must   be   based   on   the   facts   disclosed   in   the 
affidavit.   If  they  are   controverted   by  the   landlord  that   fact  may  be 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  28  :­
         902.wp.3886.10
borne in mind but if the facts disclosed in the affidavit of the tenant 
are contested by way of proof or disproof or producing evidence in the 
form of other affidavits or documents that would not be permissible. It 
is not the stage of proof of facts, it is only a stage of disclosure of facts. 
Undoubtedly,   the   rules   of   natural   justice   apart   from   the   adversary 
system we follow must permit the landlord to contest affidavit filed by 
the tenant and he can do so by controverting the same by an affidavit. 
That would be an affidavit in reply because tenant's affidavit is the 
ig
main affidavit being treated as an application seeking leave to contest 
the   petition.   Any   attempt   at   investigating   the   facts   whether   they 
appear to be proved or disproved is beyond the scope of sub­section 
(5) of section 25­B.  
25.
In paragraph 22, it was observed that the Controller has 
to confine himself indisputably to the condition prescribed for exercise 
of jurisdiction in sub­section (5) of section 25­B. In other words, he 
must confine himself to the affidavit filed by the tenant. If the affidavit 
discloses such facts­­ no proof is needed at the stage, which would 
disentitle the plaintiff from seeking possession, the mere disclosure of 
such facts must be held sufficient to grant 'leave because the statute 
says on disclosure of such facts the Controller shall grant leave'. 
26.
It was further observed that it is difficult to be exhaustive 
as to what such facts could be but ordinarily when an action is brought 
under section 14(1) proviso (e) of the Act whereby the landlord seeks 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  29  :­
ingale
         902.wp.3886.10
to recover possession on the ground of bona fide personal requirement 
if   the   tenant   alleges   such   facts   as   that   the   landlord   has   other 
accommodation   in   his   possession;   that   the   landlord   has   in   his 
possession   accommodation   which   is   sufficient   for   him;   that   the 
conduct   of   the   landlord   discloses   avarice   for   increasing   rent   by 
threatening eviction; that the landlord has been letting out some other 
premises at enhanced rent without any attempt at occupying the same 
or using it for himself; that the dependents of the landlord for whose 
ig
benefit also possession is sought are not persons to whom in eye of 
law the landlord was bound to provide accommodation; that the past 
conduct of the landlord is such as would disentitle him to the relief of 
possession; that the landlord who claims possession for his personal 
requirement has not cared to approach the Court in person though he 
could have without the slightest inconvenience approached in person 
and   with   a   view   to   shielding   himself   from   cross­examination 
prosecutes litigation through an agent called a constituted attorney. 
These   and   several   other   relevant   but   inexhaustible   facts   when 
disclosed should ordinarily be deemed to be sufficient to grant leave. 
27.
As noted earlier, the  respondent filed application  under 
section   24   of   the   Maharashtra   Rent   Act.     The   preamble   of   the   Act 
reads as under:
“Whereas it is expedient to unify, consolidate and amend 
the laws prevailing in the different parts of the State relating to the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  30  :­
         902.wp.3886.10
control of rents and repairs of certain premises and of eviction and for 
encouraging the construction of new houses by assuring a fair return 
and to provide for the matters connected with the purposes aforesaid; 
It is hereby enacted in the Fiftieth year of the Republic of the India as 
follows.”
28.
The Maharashtra Rent Control Bill dated 26th  July 1993 
seeks to ensure that the protection afforded by three acts namely; i) 
The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 
ig
ii) the Central Provinces and Berar Letting of Houses and Rent Control 
Order,   1949   and   iii)   Hyderabad   Houses   (Rent,   Eviction   and   Lease) 
Control   Act,   1954   in   force   in   the   State   remain   unimpaired   by 
providing  categorically  that  no tenant can  be  evicted  as long  as he 
continues to pay the amount of standard rent and permitted increases, 
if  any,  and   observes   and  performs  the   other  conditions   of  tenancy, 
(section 15(1)), the only exception being when the landlord needs the 
premises   for   his   own   bona   fide   personally   residence.     The   Bombay 
Rent   Act   provided   special   relief   of   making   application   to   the 
Competent Authority for possession of the premises, by the landlords, 
who have given premises on licence, and by the members of the armed 
forces and scientists in the department of Atomic Energy, Government 
of India, who require the premises for bona fide use by themselves.  It 
is possible for these categories of landlords to gain from their tenants 
the possession of any premises on expiry of the period of licence or, in 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  31  :­
         902.wp.3886.10
the case are bona fide required by the applicant for accommodation 
for himself  or by member of his family.   The provisions relating to 
licences   and   the   members   of   the   armed   forces,   scientists   and 
Government   servants   were   extended   to   the   whole   State   and   it   is 
expected   that   the   provisions   relating   to   the   summary   disposal   of 
application by the Competent Authority will have the desired effect of 
curtailing the delay in the disposal of these cases. That in view, clause 
44 provides that no appeal shall lie against an order for the recovery 
ig
of   possession   of   premises   made   by   the   Competent   Authority.   A 
29.
revision under the said clause will lie to the State Government. 
Chapter   III   of   the   Act   is   entitled   “the   relief   against 
forfeiture”.  Section 15(1) provides that no ejectment ordinarily to be 
made if tenant pays or is ready and willing to pay standard rent and 
permitted increases and observes and performs the other conditions of 
the tenancy, in so far as they are consistent with the provisions of the 
Act.   Sub­section (2) thereof lays down that no suit for recovery of 
possession shall be instituted by a landlord against the tenant on the 
ground of non­payment of the  standard rent or permitted increases 
due, until the expiration of ninety days next after notice in writing of 
the demand of the standard rent or permitted increase has been served 
upon the tenant in the manner provided in section 106 of the Transfer 
of Property Act, 1882.   Subsection (3) lays down that no decree of 
eviction   shall   be   passed   by   the   court   in   any   suit   for   recovery   of 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  32  :­
         902.wp.3886.10
possession on the ground of arrears of standard rent and permitted 
increases, if, within a period of ninety days from the date of service of 
the   summons   of   the   suit,   the   tenant   pays   or   tenders   in   court   the 
standard rent and permitted increases then due together with simple 
interest on the amount of arrears at fifteen per cent per annum; and 
thereafter continues to pay or tenders in court regularly such standard 
rent and permitted increases till the  suit is finally decided and also 
pays costs of the suit as directed by the court.   Chapter IV is entitled 
ig
“recovery   of   possession”.     Section   16   thereof   provides   when   the 
landlord   may   recover   the   possession.   Section   16   enumerates   the 
grounds on which the landlord is entitled to recover possession of the 
premises.   These grounds are covered by clause (a) to (n) subject to 
satisfaction of the conditions and limitations set out therein.  Section 
22   thereof,   provides   for   recovery   of   possession   in   case   of   tenancy 
created during service period. Chapter V is entitled “special provisions 
for recovery of possession in certain cases”.  Section 23 lays down that 
a members of armed forces of the Union, Scientists or their  successor­
in­interest  shall   be   entitled   to   recover   possession   of   the   premises 
required for their occupation.  Then comes section 24 which lays down 
that   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 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  33  :­
ingale
         902.wp.3886.10
the   deliver   possession  of   the   licenced  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   the   licensee.     Explanation   (b)for   the   purpose   of   section   24   lays 
evidence of the fact stated therein.
When the landlord desires to initiate eviction proceeding 
ig
30.
down   that   an   agreement   of   licence   in   writing   shall   be   conclusive 
on the ground under sections 15 & 16 of the Maharashtra Rent Act, he 
has to institute those proceeding under section 33.  Section 33(1) lays 
down that notwithstanding anything contained in any law for the time 
being   in   force,   but   subject   to   the   provisions   of   Chapter   VIII   and 
notwithstanding that by reason of the amount of the claim or for any 
other reason, the suit or proceeding would not, but for this provision, 
be within its jurisdiction,­­­ 
(a)  In Brihan Mumbai, the Court of Small Causes, Mumbai,
(b) in  any  area   for   which  a   Court  of  Small   Causes is  established 
under  the   Provincial  Small  Causes Courts,  Act,  1887,  (IX of  1887), 
such court, and 
(c) elsewhere, the Court of the Civil Judge (Junior Division) having 
jurisdiction in the area in which the premises are situate or, if there is 
no such Civil  Judge, the  Court of  the  Civil   Judge  (Senior  Division) 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  34  :­
         902.wp.3886.10
having ordinary jurisdiction, shall have  jurisdiction to entertain and 
try any suit or proceeding between a landlord and a tenant relating to 
the recovery of rent or possession of any premises and to decide any 
application made under this Act (other than the applications which are 
to be decided by the State Government or an officer authorised by it or 
the Competent Authority).
31.
Chapter   VIII   is   entitled   “Summary   Disposal   of   Certain 
Applications”.     Section   39   lays   down   that   the   provisions   of   this 
ig
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.
Section   41   defines   the   expression   “landlord”   for   the 
32.
purpose of Chapter VIII.  Clause (c) thereof reads as under :
33.
For the purposes of this Chapter, landlord means a landlord 
who is –
(a)   ..
(b)   ..
(c)   a   person   who   has   given   premises   on   licence   for 
residence or a successor­in­interest referred to in section 24.
Section   42   lays   down   that   notwithstanding   anything 
contained in this Act or any other law for the time being in force or 
any contract to the contrary or any judgment 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 & 15 
of Order VI of the First Schedule to the C.P.C., as if were a plaint, to 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  35  :­
         902.wp.3886.10
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.   In other 
words, only for the purpose of recovery of possession of the premises 
from the tenant or licensee as contemplated under sections 22, 23 or 
24, provisions of Chapter VIII are applicable. 
34.
Section 43 provides for special procedure for disposal of 
applications made by a landlord under Chapter VIII for the recovery of 
ig
possession.  Section 43(4)(a) lays down that 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 sub­section (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 admitted 
by the tenant or the licensee, as the case may be, and the applicant 
shall be entitled to an order for eviction.
35.
Section 43(4)(b) lays down 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 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  36  :­
         902.wp.3886.10
disentitle   the   landlord   from   obtaining   an   order   for   the   recovery   of 
possession of the premises on the ground specified in section 22 or 23 
36.
or  24.
Section 44 lays down that 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 and in terms of sub­section(2) thereof, remedy of revision is 
Section   47   lays   down   that   save   as   otherwise   expressly 
ig
37.
provided against the order of the Competent Authority.
provided in the 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 the Act to 
decide,   and   no   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.  The provisions of Chapter VIII cannot be 
invoked for deciding eviction proceeding either under section 15 or 16 
of the Maharashtra Rent Act.   Understood thus, decision of the Apex 
Court   in   the   case   of  Precision   Steel   &   Engineering   Works   & 
Indrajeet   Kaur  (supra)  is   not   applicable   while   considering   the 
provisions   of   Maharashtra   Rent   Act   for   deciding   applications   filed 
under Chapter VIII of the Maharashtra Rent Act.
38.
The Apex Court in case of Prakash H.Jain Vs. Marie 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  37  :­
ingale
         902.wp.3886.10
Fernandes, AIR 2003 Supreme Court 4591 considered the provisions 
of Chapter VIII of the Maharashtra Rent Act.  In paragraph 10, it was 
observed thus :
ig
“10.     Chapter   VIII   of   the   Act   is   itself   with   a   caption, 
"Summary  disposal  of   certain  applications"   and   Section  39 
reads that the provisions of Chapter VIII 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. Therefore, there is 
hardly any scope to have recourse to any other provisions in 
the   very   Act   or   any   other   law,   when   particularly   there   is 
specific   and   clear   provisions   or   stipulation   in   chapter   VIII 
itself as to how a particular situation has to be handled and 
what  are the  powers  of   the  authorities  constituted   for  the 
purpose of Chapter VIII of the Act. Section 40 envisages the 
appointment of competent Authority by the government for 
purposes of exercising powers therein. Section 41 has its own 
definition of  landlord  for  the purposes of  the  said  chapter 
and   Section   42   provides   a   special   procedure   for   seeking 
eviction   under   the   said   chapter,   and   Section   43   provides 
special procedure, as the Legislature itself calls it to be, for 
disposal   of   applications.   Sub­section   (2)   of   Section   43 
mandates   the   issue   of   summons   in   the   form   specified   in 
Schedule III, which form indicates, apart from informing the 
person concerned about the filing of an application seeking 
for   his   eviction,   the   need   to   appear   and   contest   the 
application for eviction on the ground mentioned therein and 
that in default whereof the applicant will be entitled, at any 
time after the expiry of the period stipulated therefore, to 
obtain an order for his eviction from the said premises and 
further as to how the said application should be filed as well. 
Section 44 states that the order of competent Authority is not 
appealable   and   only   revision   could   be   sought   before   the 
Government or the Authority designated for the purpose.”
39.
It is further observed in paragraphs 11 & 13 as under :
(11)   Sub­section (4) of section 43 of the Act, which is 
relevant for our purpose reads as follows:
"(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 Sub­section (3) shall not contest the prayer for 
eviction   from   the   premises,   unless   within   thirty   days   of   the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  38  :­
         902.wp.3886.10
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 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;
ig
(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."
(13) Clause  (a)  of  Sub­section  (4)  of  Section 43  mandates 
that   the   tenant   or   licensee   on   whom   the   summons   is   duly 
served should contest the prayer for eviction by filing, within 
thirty days of service of summons on him, an affidavit stating 
the grounds on which he seeks to contest the application for 
eviction   and   obtain   the   leave   of   the   Competent   Authority   to 
contest the application for eviction as provided therefore. The 
Legislature   further   proceeds   to   also   provide   statutory   the 
consequences   as   well   laying   down   that   in   default   of   his 
appearance pursuant to the summons or obtaining such leave, 
by filing  an  application for  the  purpose within the stipulated 
period, the statement made by the landlord in the application 
for eviction shall be deemed to be admitted by the tenant or 
licensee, as the case may be, and the applicant shall be entitled 
to an order for eviction on the ground so stated by him in his 
application for eviction. It is only when leave has been sought 
for and obtained in the manner stipulated in the statute that an 
hearing   is   envisaged   to   be   commenced   and   completed   once 
again   within   the   stipulated   time.   The   net   result   of   an 
application/affidavit   with   grounds   of   defence   and   leave   to 
contest,   not   having   been   filed   within   the   time   as   has   been 
stipulated in the statute itself as a condition precedent for the 
Competent   Authority   to   proceed   further   to   enquire   into   the 
merits   of   the   defence,   the   Competent   Authority   is   obliged, 
under   the   constraining   influence   of   the   compulsion   statutory 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  39  :­
         902.wp.3886.10
cast upon it, to pass orders of eviction in the manner envisaged 
in Clause (a) of Sub­section (4) of Section 43 of the Act.
In case of Surendra B.Agarwal (supra), the learned 
40.
Single Judge has considered the provisions of Maharashtra Rent Act 
and has observed in paragraphs 10 to 13 as under :
ig
10. Thus, the special provision has been made under the 
said   Act   for   evicting   the   licensees   of   premises   given   on 
licence for residence. A special procedure laid down under 
Chapter VIII governs the application made under section 
24 of the said Act. The said Act contemplates a summary 
disposal   of   the   applications.   By   the   very   nature   of   the 
proceedings   as   reflected   from   the   aforesaid   statutory 
provisions, the jurisdiction of Competent Authority is very 
limited.   It   can   decide   a   dispute   between   a   landlord 
(lincesor) and the licensee. It is obvious that considering 
the summary nature of the proceedings, issue of title to the 
disputed   premises   can   never   be   decided   in   such 
proceedings. The sub­section (1) of section 24 starts with 
non­obstante clause. Moreover section 39 of the said Act 
gives  overriding   effect   to   the   provisions  of   Chapter  VIII. 
Therefore, pendency of a suit governed by section 33 of 
the said Act or a suit on title cannot prevent the competent 
authority from deciding an application for eviction. There 
is no statutory power vesting the Competent Authority to 
stay the proceedings of the application under section 24 of 
the   said   Act   on   the   ground   of   pendency   of   a   civil   suit 
relating to the property. 
11. All that is required to be considered by the Competent 
Authority is whether the landlord has given the premises 
on licence for residence and whether on expiry of period of 
licence the licensee has not delivered the possession of the 
premises subject matter of 12 licence. Sub­section (3) of 
section   24   of   the   said   Act   specifically   prevents   the 
Competent   Authority   from   considering   a   claim   of   any 
stranger.   The   intention   of   legislature   of   making   an 
Agreement of Licence in writing as a conclusive evidence 
of the facts stated therein cannot be altogether ignored.
12. Hence, once application under section 24 of the said 
Act is filed by the licensor, the Competent Authority has to 
decide the  said   application  in  accordance with   law.   The 
Competent Authority is not really concerned with the title 
of   the   licensor.   All   that   is   required   to   be   examined   is 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  40  :­
         902.wp.3886.10
whether   the   applicant   is   a   licensor   and   whether   the 
opponent is the licensee and whether there was a Leave 
and   Licence   Agreement   for   residential   use   of   the   suit 
premises. In a case where licensee is claiming some other 
rights in relation to the premises in dispute, adjudication 
of   the   said   rights   cannot   be   made   by   the   Competent 
Authority. Therefore, if a suit relating to the title of the 
licensor is pending or if a suit for declaration filed by the 
licensee claiming declaration of rights is pending, that is 
no   ground   to   detain   the   hearing   of   application   under 
section 24 of the said Act. The pendency of suits in the 
Civil   Court   or   other   Competent   Court   relating   to   the 
premises in dispute does not affect the jurisdiction of the 
Competent   Authority   to   decide   the   application.   While 
deciding the application under section 24 of the said Act 
the Competent Authority cannot decide the issue of title.
ig
13.   In   the   case   of  Rajendra   B.   Nair  (supra),   [2002(4) 
Mh.L.J.93]   this   Court   was   dealing   with   an   identical 
provision viz; section 13A­2 of the Bombay Rents, Hotel & 
Lodging   House   Rates   (Control)   Act,   1947.   This   Court 
considered   the   effect   of   pendency   of   a   declaratory   suit 
filed   by   the   licensee   claiming   a   declaration   of   tenancy. 
Paragraph 12 of the said decision reads thus:
"The pendency of the declaratory suit which has been 
filed by the respondent before the Small Causes Court 
cannot   detract   from   the   legal   position   which   ensues 
under   section   13­A2   or   affect   the   jurisdiction, 
statutorily conferred upon the competent authority of 
ordering the eviction of a licensee whose entitlement to 
occupy   the   premises   has   come   to   an   end   upon   the 
expiry of the licence. The provisions of section 13­A2 
have effect, notwithstanding anything contained in the 
Rent Act. A licensee cannot claim an immunity from the 
obligation cast upon him by section 13­A2 to vacate the 
premises   upon   the   expiry   of   the   licence   by   the 
institution   of   a   Declaratory   Suit   in   the   Small   Causes 
Court.   Nor   can   he   claim   an   immunity   from   the 
jurisdiction of the competent authority to order him to 
vacate when he fails to do so upon the expiry of the 
licence.   Section   13­A2   frowns   upon   such   subterfuge 
and it is the plain duty and obligation of the Court to 
give   effect   to   the   legislative   mandate."(Emphasis 
added)
What is held by this Court squarely applies to proceedings 
under section 24 of the said Act. Therefore, the revisional 
Authority has committed a gross error by directing that the 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  41  :­
         902.wp.3886.10
41.
Competent   Authority   cannot   proceed   with   application 
under   section   24   of   the   said   Act   merely   because   a 
declaratory   suit   filed   by   the   respondent   is   pending   and 
merely because the suit for specific performance filed by a 
third party is pending. If the third party who has filed a 
suit for specific performance succeeds, it is obvious that on 
the   basis   of   the   said   decree   the   third   party   can   take 
appropriate steps. 
I have already considered the decision of the Apex Court 
in case of Precision Steel & Engineering Works (supra) in detail.  In 
paragraph 9, the Apex Court considered the scheme of the Delhi Rent 
ig
Act as also the  statutes  in  other  states.    It  was observed that  what 
would   the   Court   expect   the   landlord   to   prove   before   he   seeks   to 
recover possession from the  tenant on the  ground that he bonafide 
requires possession for his own use or for the use of the members of 
his family.  In a catena of decisions it has been decided that in order to 
succeed the landlord should show that the premises have been let out 
as a residence or for residential purposes; that the landlord needs to 
occupy the premises which may imply that either  he has got no other 
accommodation in the city or town in which the premises in question 
are   situated   or   the   one   in   his   possession   does   not   provide   him   a 
suitable   residence   and   he   is   required   to   shift   to   the   premises   in 
question; that his need is genuine and that it is not merely a fanciful 
desire   of   an   affluent   landlord   who   for   the   fancy   of   changing   the 
premises would like to shift to the one from which the tenant is sought 
to be evicted; that he is acting bona fide  in approaching the court for 
recovery of possession; and that his demand is reasonable.  These facts 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  42  :­
         902.wp.3886.10
have to be proved to the satisfaction of the court.  Certain States have 
in   their  respective  legislations  also imposed  an  additional  condition 
before the landlord can obtain possession   for personal requirement 
namely before making a decree or order of eviction  the  court must 
weigh   the   relative   hardship   of   the   landlord   and   the   tenant   and   if 
greater hardship is likely to be caused to tenant, the court is under an 
obligation to refuse to pass the decree notwithstanding the fact that 
In paragraph 10, the Apex Court observed that the limited 
ig
42.
landlord has proved his requirement.
jurisdiction which the Controller enjoys is prescribed within the well 
defined  limits   and  he  cannot  get into   a  sort  of   a  trial  by  affidavits 
preferring one set to the other and thus concluding the trial without 
holding the trial itself.
43.
In   paragraph   11,   it   was   observed   that   upon   a   true 
construction   of   proviso   (e)   to   section   14(1)   it   would   unmistakably 
appear that the burden is on the landlord to satisfy the Controller that 
the premises of which possession is sought is; (i) let for residential 
purposes; and (ii) possession of the premises is required bona fide by 
the landlord for occupation as residence for himself or for any member 
of his family etc. and (iii) that the landlord or the person for whose 
benefit   possession   is   sought   has   no   other   reasonably   suitable 
residential   accommodation.   This   burden,   landlord   is   required   to 
discharge before the Controller gets jurisdiction to make an order for 
::: Downloaded on - 15/08/2014 18:36:14 :::
ingale
            ­:  43  :­
         902.wp.3886.10
eviction.
In   paragraph   12,   the   Apex   Court   observed   that   on   a 
44.
combined  reading  of  section   14(1)   proviso   (e)  with  section   25B(1) 
and (4) the legal position that emerges is that on a proper application 
being   made   in   the   prescribed   manner   which   is   required   to   be 
supported by an affidavit, unless the tenant obtains leave to defend as 
contemplated by sub­ sections (4) and (5) of section 25­B, the tenant 
is deemed to have  admitted all the  averments made in the petition 
ig
filed   by   the   landlord.     But   what   happens   if   the   tenant   appears 
pursuant to the summons issued under sub­sec(2) of section 25­B, files 
an   affidavit   stating   the   grounds   on   which   he   seeks   to   contest   the 
application.  On perusing the affidavit filed by the tenant and the reply 
if any filed by landlord, the Controller has to pose to himself the only 
question:   Does   the   affidavit   disclose,   not   prove,   facts   as   would 
disentitle   the   landlord   from   obtaining   an   order   for   the   recovery   of 
possession   on   the   ground   specified   in   Clause   (e)   of   the   proviso   to 
section 14(1). The Controller is not to record a finding on disputed 
questions   of   facts   or   his   preference   of   one   set   of   affidavits   against 
other set of affidavits.   It is immaterial that facts alleged and disclosed 
are controverted by the landlord because the stage of proof is yet to 
come. It is distinctly possible that a tenant may fail to make good the 
defence raised by him. Plausibility of the defence raised and proof of 
the   same   are   materially   different   from   each   other   and   one   cannot 
::: Downloaded on - 15/08/2014 18:36:14 :::
            ­:  44  :­
ingale
         902.wp.3886.10
bring in the concept of proof at the stage when plausibility has to be 
shown. It was further observed that the regular trial required to be 
held by a Court of Small Causes as contemplated by sub­section (6) 
read with sub­section (7) of section 25­B is not to be substituted by 
affidavits and counter­affidavits.
45.
In   paragraph   18,   the   Apex   Court   observed   that   while 
examining the affidavit of the tenant filed under s. 25­B (4), it is not 
the stage of proof of facts, it is only a stage of disclosure of facts.  The 
ig
decision of the Apex Court in case of Precision Steel & Engineering 
Kaur (supra).
Insofar   as   the   provisions   of   Delhi   Rent   Control   Act   are 
46.
Works  (supra)  was considered subsequently in the case of Indrajeet 
concerned,   Chapter   III   is   entitled   “Control   of   Eviction   of   Tenants”. 
Section 14 thereof provides   that landlord   may make application to 
the Controller against a tenant for recovery of possession of premises 
on one or more of the grounds specified therein.
47.
Section   14A   provides   for   right   to   recover   immediate 
possession of premises to accrue to certain persons.   Chapter IIIA is 
entitled “Summary Trial of Certain Applications.”  Section 25A thereof 
lays down  the provisions of that 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.

Section   25B   lays   down   that   every   application   by   a 
landlord for the recovery of possession of any premises on the ground 
specified in clause (e) of the proviso to sub­section (l) of section 14, or 
under   section   14A,   shall   be   dealt   with   in   accordance   with   the 
procedure specified in that section.  Sub­section (8) thereof lays down 
that   no   appeal   or   second   appeal   shall   lie   against   an   order   for   the 
recovery   of   possession   of   any   premises   made   by   the   Controller   in 
accordance  with   the  procedure   specified   in   that   section.     The  High 

Court may, for the purpose of satisfying itself that an order made by 
the   Controller   under   that   section   is   according   to   law,   call   for   the 
records of the case and pass such order in respect thereto as it thinks 
fit.  Sub­section 10 lays down that save as otherwise provided in that 
Chapter, the procedure for the disposal of an application for eviction 
on the ground specified in clause (e) of the proviso to sub­section (l) 
of section 14, or under section 14A, shall be the same as the procedure 
for the disposal of applications by Controllers.
49.
Comparison   of   provisions   of   Maharashtra   Rent   Act   and 
Delhi   Rent   Act   shows   that   provisions   like   sub­section   (3)   and 
explanation (b) for the purpose of section 24 of the Maharashtra Rent 
Act are not there in the Delhi Rent Act. Section 24(3) lays down that 
the   Competent   Authority   shall   not   entertain   any   claim   of   whatever 
nature  from  any  other   person  who   is not  licensee  according  to  the 
agreement of licence. Explanation (b) for the purpose of section 24 

provides that an agreement of licence in writing shall be conclusive 
evidence   of   fact   stated   therein.     Such   provision   is   not   there   in   the 
Delhi Rent Act.  That apart, the ratio laid down by the Apex Court in 
the cases of Precision Steel & Engineering Works & Indrajeet Kaur 
(supra) will  apply to the eviction proceedings under sections 15 & 16 
that   are   to   be   tried   by   the   Court   specified   in   section   33   of   the 
Maharashtra Rent Act.  For deciding the proceedings under sections 15 
& 16 of the Maharashtra Rent Act, the regular trial is required to be 

conducted and explanation (b) to section 24 and provisions of Chapter 
VIII are not applicable to such proceedings.   The proceedings under 
Chapter VIII are to be tried by the  Competent Authority keeping in 
mind provisions of section 24 and Chapter VIII viz. sections 39, 41 to 
44 and 47 of the Maharashtra Rent Act and not by the Court specified 
by section 33.
In the light of the aforesaid discussion, I do not find any 
50.
merit in the submissions of Mr.Dhakephalkar.   The orders passed by 
the   Competent   Authority   and  the   Commissioner   do  not  suffer  from 
any infirmity.
51.
Mr.Dhakephalkar   made   serious   grievance   against   the 
order   dated   06/03/2010   passed   by   the   Competent   Authority.     He 
submitted that the said order was passed without issuing the notice to 
the petitioner as also without hearing the petitioner. The said order is 
also in the teeth of section 45 of the Maharashtra Rent Act.

Section 45 of the Maharashtra Rent Act reads as under :
52.
Effect   of   refusal   of   failure   to   comply   with   order   of 
eviction­­­ If any person refuses or fails to comply with the 
order of eviction made under section 43 within thirty days 
of the date on which it has become final, the Competent 
Authority   or   any   other   officer   duly   authorised   by   the 
Competent Authority in his behalf, may evict that person 
from, and take possession of, the premises and deliver the 
same to the landlord and for that purpose, use such force 
as may be necessary. 
It is not in dispute that the Commissioner decided 
revision   application   filed   by   the   petitioners   on   05/03/2010.     The 

Commissioner while dismissing revision application preferred by the 
petitioners   directed   the   Competent   Authority   to   execute   order 
immediately.     In   pursuance   thereof,   the   respondents   filed   Misc. 
Application No. 10 of 2010 on the very next day i.e. 06/03/2010.  On 
the same day, the Competent Authority ordered issuance of possession 
warrant and the respondents No. 4 & 5 executed warrant of possession 
and obtained possession on 08/03/2010.
53.
In   view   of   section   45   of   the   Maharashtra   Rent   Act 
extracted   hereinabove,   in   my   opinion,   the   Competent   Authority 
committed   serious   error   in   issuing   warrant   of   possession   on 
06/03/2010.     Though   the   Commissioner   directed   the   Competent 
Authority  to execute  order  immediately, it  cannot issue  warrant of 
possession   contrary   to   section   45.     In   my   opinion,   the   Competent 
Authority ought to have satisfied itself in terms of section 45 of the 
Maharashtra  Rent  Act  whether  the  eviction  order  had   become  final 

and thereafter only issued warrant of possession.  Respondents  No. 4 
& 5 also committed grave error in filing application on the very next 
day   of   passing   of   the   order   by   the   Commissioner   and   executing 
warrant   of   possession   on   the   basis   of   the   order   passed   by   the 
Competent Authority.   The Competent Authority failed to appreciate 
that section 45 will become applicable only in the event if any person 
refusing or failing to comply with order of the eviction made under 
The   next   question   is   to   what   relief   the   petitioners   are 

54.
section 43 “within 30 days of the date on which it becomes final.
entitled to.  I have already upheld the orders passed by the Competent 
Authority and the Commissioner.   At the same time, the  Competent 
Authority   clearly   acted   in   excess   of   its   jurisdiction   while   issuing 
warrant of possession on 06/03/2010.   Respondents No. 4 & 5 have 
also obtained possession in the teeth of section 45 of the Act.  Though 
the petitioners are not entitled to possession of the suit premises, they 
are required to be compensated in that respect.  Respondents No. 4 & 
5 shall pay Rs.2,00,000/­ (Rs. Two lacs), being at a double  rate of 
monthly compensation of Rs.1 lac in that regard.  Hence, Writ Petition 
succeeds partly and is disposed of as under :
i) The   impugned   judgment   and   orders   (a)   dated   14/07/2008 
rejecting   the   application   made   by  the   petitioners   for  leave   to 
defend   (b)   dated   14/07/2008   rejecting   the   Intervenor's 
Application dated 11/07/2008 filed by Mr.Nirav Modi  (c) dated 

14/07/2008   passed   by   the   Competent   Authority   (d)   dated 
05/03/2010 passed by the Additional Commissioner are upheld.
ii) Respondents No. 4 & 5 are directed to pay Rs.2,00,000/­ to the 
petitioners for taking possession in contravention of section 45 
of the Maharashtra Rent Act. The said amount shall be given 
due credit from the payment which is required to be made by 
the petitioners to respondents No. 4 & 5.
In view of disposal of the Writ Petition, Civil Applications 
55.

Nos. 2184 of 2010, 2493 of 2010 and 2494 of 2010 do not survive and 
56.
the same are disposed of accordingly.
Rule is partly made absolute in the aforesaid terms with 
(R.G.KETKAR)
no order as to costs.

Print Page