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Sails India v. Mrs. Rita M. Rupani .
Factual and Procedural Background
On 30-7-1996, the Competent Authority (Rent Act), Konkan Division, Bombay, allowed an application filed by Mrs. Rita M. Rupani (the licensor) under Section 13-A2 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Authority directed Sails India (the licensee) to hand over vacant and peaceful possession of specified premises in Rizvi Park, Santacruz (West), Bombay, and to pay leave and licence fee compensation of Rs. 12,000/- per month from 1st February 1994 until possession was delivered. The licensor’s application arose after the expiry of two successive leave and licence agreements executed with the licensee, under which the licensee was to use the premises for residential purposes. The licensee failed to hand over possession after expiry, prompting the licensor to seek eviction and damages.
The licensee contested the application, asserting that the premises were taken on tenancy (not licence) and for non-residential use, and challenged the maintainability of the application before the Competent Authority. After evidence and enquiry, the Competent Authority held jurisdiction, found the application maintainable, and concluded the agreement was a genuine leave and licence agreement for residential use, not a disguised tenancy. The Competent Authority ordered eviction and payment of damages accordingly.
The licensee filed the present Civil Revision Application challenging this order.
Legal Issues Presented
- Whether the explanation (b) to Section 13-A2 of the Bombay Rent Control Act, which states that a written agreement of licence shall be conclusive evidence of the facts stated therein, precludes a licensee from challenging the nature of the agreement as a tenancy rather than a licence?
- Whether a non-individual licensee is covered under Section 13-A2 of the Bombay Rent Control Act and thus subject to the jurisdiction of the Competent Authority for eviction proceedings?
Arguments of the Parties
Appellant's (Licensee's) Arguments
- The expression "conclusive evidence" in explanation (b) to Section 13-A2 is not equivalent to "conclusive proof" as defined in Section 4 of the Indian Evidence Act, 1872, and thus the licensee is entitled to challenge the nature of the leave and licence agreement and prove it to be a tenancy agreement.
- The licensee is a non-individual entity incapable of taking premises for residential purposes, and therefore falls outside the scope of Section 13-A2, rendering the Competent Authority without jurisdiction.
Respondent's (Licensor's) Arguments
- Explanation (b) to Section 13-A2 is a special provision making a written agreement of licence conclusive evidence of the facts stated therein, disallowing any evidence to the contrary.
- Section 13-A2 applies to all licensees who have taken premises on licence for residential purposes, whether individual or non-individual; no distinction exists between different types of licensees.
- Relied on precedents including Automatic Electric Ltd. v. Sharadchandra Vinayak Tipnis, Amarjit Singh v. R.N Gupta, and Swami Attah alia Repheal Alfandary v. Mrs. Thrity Poona-walla to support the conclusive nature of the written licence agreement and the jurisdiction of the Competent Authority.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Automatic Electric Ltd., Wadala, Bombay v. Sharadchandra Vinayak Tipnis (1996 (1) Mah LJ 619) | Explanation (b) to Section 13-A2 makes a written licence agreement conclusive evidence of the facts stated therein, precluding evidence to the contrary. | The Court relied on this precedent to reject the licensee’s contention that the agreement could be challenged and held that no evidence can be led to disprove the facts stated in the written licence agreement. |
| Amarjit Singh v. R.N Gupta (1995 (4) Bom CR 538) | Special rule of evidence under Section 13-A2 precludes going beyond the written licence agreement. | The Court applied this principle to affirm that the Competent Authority cannot look beyond the written licence agreement in eviction proceedings. |
| Swami Attah alia Repheal Alfandary v. Mrs. Thrity Poona-walla (AIR 1996 Bom 257) | Supports the conclusive evidentiary value of a written licence agreement under Section 13-A2. | Used to reinforce the Court’s conclusion that the written agreement is conclusive evidence and that the Competent Authority has jurisdiction. |
Court's Reasoning and Analysis
The Court first analyzed the language of Section 13-A2 of the Bombay Rent Control Act and the Indian Evidence Act definitions of "fact," "evidence," and "conclusive proof." It noted that explanation (b) to Section 13-A2 provides a special rule of evidence applicable solely to proceedings under that section, making a written licence agreement conclusive evidence of the facts stated therein. The Court held that this special provision overrides the general evidentiary principles of the Indian Evidence Act, disallowing any contradictory evidence to challenge the written agreement.
Regarding the licensee’s argument that "conclusive evidence" differs from "conclusive proof," the Court found this distinction legally irrelevant, stating that the Legislature’s use of "conclusive evidence" effectively means the same as "conclusive proof" within the context of Section 13-A2.
On the second contention, the Court examined the language of Section 13-A2, particularly the use of masculine pronouns "him" and "he," and referred to Section 13 of the Bombay General Clauses Act, which includes females within masculine terms but does not exclude other entities. The Court concluded that Section 13-A2 does not exclude non-individual licensees and that the critical factor is whether the licensee has taken possession for residential purposes, regardless of the licensee’s identity as an individual or entity.
Applying these principles to the facts, the Court found that the licensee had taken the premises on licence for peaceful residential purposes under a valid written agreement and that the Competent Authority rightly exercised jurisdiction and passed a valid order for eviction and damages.
Holding and Implications
The Civil Revision Application is dismissed.
The Court upheld the order of the Competent Authority directing the licensee to hand over vacant and peaceful possession of the premises and to pay damages. The Court confirmed that under Section 13-A2 of the Bombay Rent Control Act, a written licence agreement is conclusive evidence of the facts stated therein, barring any contradictory evidence. It also clarified that Section 13-A2 applies to all licensees who take premises for residential purposes, including non-individual entities. No new precedent was established; the decision directly affirms the Competent Authority’s jurisdiction and the finality of its order in this matter.
1. Rule, returnable forthwith. By consent, the Civil Revision Application is heard finally at this stage.
2. On 30-7-1996, the Competent Authority (Rent Act), Konkan Division, Bombay, allowed the application made by the respondent herein Mrs. Rita M. Rupani under Section 13-A2 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short ‘Bombay Rent Control Act’) and directed the present applicant Sails India to hand over vacant and peaceful possession of the premises in question i.e one Hall, one Bedroom, one Bath room with W.C of Rizvi Park, 5th floor, Rizvi Park. Co-operative Housing Society Ltd., S.V Road, Santacruz (West), Bombay, within 30 days of the passing of the impugned order and also directed the present revisionist to pay leave and licence fee i.e Rs. 12,000/- per month as compensation from and after 1st February, 1994 till the possession is handed over. This order came to be passed on the application made by Mrs. Rita M. Rupani, respondent herein (for short ‘Licensor’) before the Competent Authority. It was inter alia averred in the application by the licensor that the applicant herein Sails India (for short ‘Licensee’) executed a leave and licence agreement on 1-4-1992 whereby the licensor agreed to give part of her residential Flat No. 501.A at Rizvi Park, consisting of one Hall, one room and one Tiolet except the premises occupied by Sargur Pharmaceuticals (for short ‘disputed premises’) on leave and licence basis for use by the licensee for a period of 11 months and the licensee agreed to pay compensation at the rate of Rs. 6,000/- per month for the aforesaid premises. It is the further case of the licensor that on expiry of the leave and licence agreement dated 1-4-1992, another leave and licence agreement was executed on 16-3-1993 whereby the licensor agreed to give the disputed premises on licence for use by the licensee for peaceful residential purposes for a period of 11 months and the licensee agreed to pay compensation of Rs. 6,000/- per month. On expiry of the said licence when the licensee did not hand over peaceful vacant possession of the disputed premises to the licensor the application was made by the licensor before the Competent Authority praying therein that licensee be directed to hand over quiet, vacant and peaceful possession of the disputed premises to the licensor and the licensee be also directed to pay damages at double the rate of compensation at the rate of Rs. 12,000/- per month from and after 1st February 1994. Ancillary relief of interest on outstanding amount of damages was also sought by the licensor.
3. The licensee contested the application made by the licensor and set up the defence that in fact the premises were taken on tenancy and the agreement for tenancy was styled as leave and licence agreement. The licensee set up the plea that the application before the Competent Authority was not maintainable and the premises were also taken for non-residential use.
4. The parties led evidence before the Competent Authority and after enquiry, the Competent Authority held that he has power and jurisdiction to entertain and try the application. It was also held by the Competent Authority that the application made by the licensor under Section 13-A2 of the Bombay Rent Control Act was maintainable. The Competent Authority also reached the conclusion that the licensor has proved that the disputed premises were given to the licensee for residential purposes and that the document was a document for leave and licence and not colourable document and camouflage to circumvent the provisions of the Bombay Rent Act. Accordingly, as indicated above, the Competent Authority by order dated 30-7-1996 allowed the application and directed the licensee to hand over the vacant and peaceful possession of the premises to the licensor.
5. The licensee in the present revision application takes exception to the aforesaid order.
6. Mr. A.V Anturkar, the learned counsel for the revisionist-licensee has raised two-fold submission (i) that the explanation (b) to Section 13-A2 provides that an agreement of licence in writing shall be conclusive evidence of the fact stated therein cannot be equated with expression “conclusive proof” occurring in Section 4 of the Indian Evidence Act, 1872. According to him, the Legislature has deliberately not used the term ‘conclusive proof in explanation (b) and, therefore, it is open to the alleged licensee to challenge in the proceedings under Section 13-A2 the correctness of socalled leave and licence agreement and also lead evidence and prove that in fact the said agreement was not leave and licence agreement but tenancy agreement and (ii) that the revisionist-licensee is a non-individual licensee which is incapable of taking the premises for residential purposes and, therefore, such licensee is beyond the purview and scope of Section 13-A2 of the Bombay Rent Act and Competent Authority has no jurisdiction.
7. Responding to the contentions raised by the learned counsel for the petitioner, on the other hand Mr. Vakil, the learned counsel for the respondent submitted that the explanation (b) in Section 13A2 which provides that for the purposes of Section 13A2 an agreement of licence in writing shall be conclusive evidence of the fact stated therein is a special provision and when the Legislature has provided that an agreement of licence in writing shall be conclusive evidence of fact stated therein, no other evidence can be led to prove otherwise. Mr. Vakil relied on Automatic Electric Ltd. Wadala, Bombay v. Sharadchandra Vinayak Tipnis, (1996) 1 Mah LJ 619; Amarjit Singh… v. R.N Gupta…., (1995) 4 Bom CR 538 and Swami Attah alia Repheal Alfandary v. Mrs. Thrity Poona-walla, (1996) 1 Mah LJ 603 : (AIR 1996 Bom 257). The learned counsel for the respondent also contends that Section 13A2 applies to all licensees who have taken the premises on licence for residenal purposes whether by the individual or non-individual and no distinction can be done between the individual licensee and non-individual licensee.
8. Coming to the first contention raised by the learned counsel for the petitioner first, it would be advantageous to first refer to the relevant provisions of Section 13A2 of the Bombay Rent Control Act and the definition of ‘evidence’, ‘fact’ and the ‘conclusive proof’ in the indian evidence act, 1872.
9. Section 13A2 of the Bombay Rent Control Act reads thus:—
13A2. Landlord entitled to recover possession of premises given on licence on expiry of licence. (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence and on the failure of the licensee to so deliver the possession of the licensed premisses, a landlord shall be entitled to recover possesion of such premises from a licensee, on the expiry of the period, of licence by making an application to the Competent Authority; and the Competent Autho-rity, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.
(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.
(3) The Competent authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.
Explanation. — For the purposes of this section.—
(a) the expression “landlord” does not include a tenant or a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.”
“Fact” under the Evidence Act means and includes:—
“(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.”
“Evidence” under Section 3 of the Evidence Act means and includes:—
(1) all statement which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection of the Court;
such documents are called documentary evidence.”
According to Section 4 of the Evidence Act, “Conclusive proof” has been defined as:—
“When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”
A close scerutiny of the definition of “fact”, “evidence” and “conclusive proof” occurring in indian evidence act would show that the said expressions and words have been defined for the purposes whenever such words and expressions are used in the indian evidence act. explanation in section 13a2 provides a special rule of evidence for the purposes of Section 13A2 and that special rule of evidence prevails for the purposes of the proceedings under Section 13A2 of the Bombay Rent Control Act. Explanation (b) occurring in Section 13A2(2) which provides that for the purposes of this section an agreement of licence in writing shall be conclusive evidence of the fact stated therein is unambiguous in its term and makes it clear that an agreement of licence in writing proves conclusively all the facts stated therein. When an agreement of licence which is in writing is made conclusive evidence of the facts stated therein, obviously the Legislature has not intended to permit any other evidence to be led by the parties to disprove the facts stated in written agreement of licence. There is no merit in the contention of the learned counsel for the petitioner that since the Legislature has not deliberately used the expression “conclusive proof” in explanation (b) and has used the expression “conclusive evidence of the fact stated therein”; the said agreement of licence which is in writing, cannot be said to be conclusive proof of the facts stated therein. The distinction drawn by the learned counsel for the petitioner in fact is no distinction in eye of law and the expression used by the Legislature that an agreement of licence in writing shall be conclusive evidence of fact stated therein indicates that the Legislature by providing the special mode of evidence has not permitted any party to disprove the fact stated in an agreement of licence which is in writing.
10. In Automatic Electric Ltd., Wadala, Bombay v. Sharadchandra Vinayak Tipnis (1996 (1) Mah LJ 619) (cited supra), the learned single Judge of this Court while referring to explanation (b) to Section 13A2 observed that the phrase used is conclusive evidence of the fact stated therein and in view of this explanation it is not possible to go behind it and spell out some other agreement. The same view is expressed in Amarjit Singh… v. R.N Gupta….'s case (1995 (4) Bom CR 538). (cited supra) wherein it is observed that a special rule of evidence is prescribed in Section 13A2 which provides that an agreement of licence shall be conclusive proof of facts stated therein and in view of this special rule of evidence the Court cannot go beyond the document. It is true that in none of the aforesaid decisions the Court has considered the expression “conclusive evidence of the fact stated therein” in contradistinction to the expression “conclusive proof” as argued by the learned counsel for the petitioner but in my view the argument is superfluous and the difference is no difference. The expression “conclusive evidence of the fact stated therein” only means that no other evidence can be allowed to be given for the purposes of disproving the facts stated in the leave and licence agreement which is in writing. In other words under Section 13A2(3)(b) an agreement of licence in writing is conclusive proof of the facts stated therein. The first contention raised by the learned counsel for the petitioner has, therefore, no merit and is accordingly negatived.
11. The second contention raised by the learned counsel for the petitioner is particularly with reference to the word used “him” in sub-section (1) of section 13a2 and “he” in sub-section (2) of section 13a2 and on the basis of these words occurring in sub-section (1) and sub-section (2) of section 13a2, it is contended by the learned counsel for the petitioner that a non-individual licensee is not included in Section 13A2 because it is incapable of taking the premises for residence and, therefore, such licensees are beyond the scope of Section 13A2.
12. To buttress his argument, the learned counsel for the petitioner relied on Section 13 of the Bombay General Clauses Act, 1904 which states that in all Bombay Acts (all Maharashtra Acts) unless there is anything repugnant on the subject to the context, the words importing masculine gender shall be taken to include females.
13. I am afraid, a bare perusal of S. 13A2 does not envisage the distinction drawn by the learned counsel for the petitioner between the individual licensee and a non-individual licensee. What is contemplated by S. 13A2 of the Bombay Rent Control Act is the entitlement of the licensor to recover possession of premises given on licence on expiry of licence and it provides that a licensee in possession or occupation of premises given to him on licence shall deliver the said premises to the landlord on expiry of the period of licence and on the failure of the licensee to so deliver the possession of the licensed premises, the landlord shall be entitled to recover possession of such premises from the licensee on expiry of the period of licence by making an application to the Competent Authority. If a licensee has taken possession or occupation of the premises on licence for residence, he is covered under S. 13A2 whether he is an individual he or she or any other entity. The word “him” used in sub-sec. (1) of S. 13A2 does not confine the licensees who are he or she but includes the licensees who have taken the premises on license in any other capacity. What is material is that the licensee must have taken possession or occupation of the premises on licence for residence whether he is individual or any other entity. The expression “him” or “he” occurring in sub-sees. (1) and (2) of S. 13A2 respectively, as indicated above is not confined to an individual “he” or “she” but all other entities. Even otherwise under S. 13 of the Bombay General Clauses Act, when it provides that the words importing masculine gender shall be taken to include females, it only provides the inclusive definition of the word importing the musculine gender but does not exclude others. Moreover, the dominent expression in S. 13A2 is “licensee” and not “him” or “he” occurring in pub-sec. (1) and sub-sec. (2) respectively of S. 13A2 and, therefore, once a licensee is in possession or occupation of the premises given to him on licence for residence and the possession is not delivered by the licensee on expiry of licence, a special remedy is made available to the licensor under S. 13A2. In this view of the matter, the second contention raised by the learned counsel for the petitioner is also without any substance.
14. From the bare perusal of the leave and licence agreement dated 16-3-1993 it is apparent that the disputed premises were given on licence to the revisionist licensee for use of the premises for peaceful residential purposes and, therefore, apparently the licensee is covered under S. 13A2 and the Competent Authority did not commit any error of jurisdiction in holding that it has jurisdiction to try and entertain the application under S. 13A2.
15. No other point has been advanced by the learned counsel for the petitioner.
16. The order passed by the Competent Authority therefore does not call for any interference by this Court in its revisional jurisdiction.
17. The Civil Revision Application has no merit and is accordingly dismissed. Rule is discharged. No costs.
18. Mr. Anturkar, the learned counsel for the petitioner at this stage orally prays that for a period of four weeks the impugned order passed by the Competent Authority and the present order may not be implemented to enable the petitioner to move the Apex Court. Mr. Anturkar further submits that within 7 days from today, his client would deposit the entire arrears of compensation as directed by the Competent Authority before the said Authority and shall also furnish an undertaking before this Court that if within a period, of four weeks the petitioner is not able to get any order from the Apex Court, it would hand over peaceful vacant possession of the disputed premises to the respondent. Mr. Vakil, the learned counsel for the respondent opposes the prayer. In the interest of justice, I direct that for a period of four weeks the order passed by the Competent Authority and this Court shall not be implemented provided the petitioner deposits the entire arrears of compensation at the rate provided by the Competent Authority before the said Authority within one week from today and also file an undertaking before this Court within one week that in the absence of any order otherwise by the Apex Court, the petitioner shall hand over peaceful vacant possession of the disputed premises to the respondent on expiry of four weeks from today.
19. Certified copy expedited.
Revision dismissed.
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