ASHOK VADILAL SHAH Vs. JAYANTILAL MANDLAL KOTHARI

JUDGEMENT

(1.) BY means of this revision application, the petitioner seeks to challenge the two orders passed by the Competent Authority on 22.7.97. On that day, the Competent Authority first rejected the application made by the present petitioner for leave to defend the application for eviction and the condonation of delay and then by a separate order passed an order of eviction under Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.

(2.) THE brief facts necessary for disposal of this revision application may be thus narrated. The respondent No. 1 herein (to be referred as original applicant for the sake of convenience) made an application for eviction against one Mr. Bhikalal Sundarji Vakaria (for the sake of convenience to be referred as original respondent No. 1 hereinafter) and the present petitioners Ashok Vadilal Shah and Smt. Smita Ashok Vadilal Shah (hereinafter to be referred as original respondent No. 2) before the Competent Authority Konkan Division, Bombay. The original applicant inter alia averred that he is builder promoter who constructed a building on the plot of land of Plot No. D -1 and Plot No. 15 at the corner of Cross Road No. 3 of Mamlatdarwadi Main Road, Malad (West), Mumbai, known as Kothari Apartment and under the agreement dated 19.11.1975, he agreed to grant a licence to the original respondent No, 1 to remain in use and occupation of Flat No. 5 on the second floor in the building Kothari Apartment on payment of full consideration as a lumpsum one time licence fee as described in Part II, 111 and IV of Schedule annexed to the agreement dated 19.11.1975 and the said licence was capable of being revoked automatically in breach of any of the terms and conditions of the said agreement and any default thereof. The original respondent No. 1 upon signing the agreement dated 19.11.1975 requested the original applicant to treat the deposit of Rs. 95.609/ - made by him as lumpsum licence fee and further requested the original applicant that the balance amount of Rs. 1751/ - would be paid after some time. It is the case of the original applicant that original respondent No. 1 was liable to pay to him a sum of Rs. 250/ - for making deposit for shares to be subscribed for formation of co -operative housing society and Rs. I/ - as admission fee and/or otherwise also Rs. 1751/ already prescribed in para 4 of the agreement dated 19.11.1975 before or after the occupation. The original applicant was to form a co -operative housing society only after all the fourteen occupants join in the formation of the said society and paid the shares money. According to the original applicant, it was agreed that if the original respondent No. 1 failed to pay any amount, he would not be taken as member in the society and he would be responsible for all actions for his default and failure to comply with the provisions of Clause 22 of the agreement dated 19.11.1975 shall bring to an end the said agreement and the money paid to the original applicant shall stand forfeited. It is the case of the original applicant that the original respondent No. 1 committed breach of the agreement dated T 9.11.1975 and accordingly, the agreement was revoked on 31.3.1978 and the amount paid by the first respondent was forfeited. The original applicant averred that after the agreement came to an end on 1.4.1978 the original respondent No. 1 orally assured the original applicant that he would pay a sum of Rs. 1751/ - but he did not do so. The first respondent violated Clause 10 -B of the agreement and left the premises in the month of April, 1990 by transferring his right in favour of the original respondent No. 2. In para 14 of the application; the original applicant pleaded that the original respondent No. 1 has already assigned his right, title, interest and benefit of agreement dated 19.11.1975 in favour of the assignee way back in the month of April, 1990 and if the original respondent No. 1 wanted revival of the original agreement he was bound to pay the balance amount due to the original applicant which was agreed to be paid by original respondent No. 2 to the original applicant and also an amount of Rs. 20.000/ - being repair charges of the building. The letter of no objection signed by the original applicant in favour of respondent No. 1 was in good faith on compliance of aforesaid conditions which was never complied with and therefore, the said document has no legal support. The original applicant has stated in the application that original respondent No. 1 also did not pay any amount to the original applicant despite having agreed to do so vide their letter dated 14.5.1992 and the original respondent No. 2 has further violated Clause 24 of the agreement and demolished the lay out and construction of the portion of the premises in question and made structural changes. It was thus alleged that both the original respondent Nos. 1 and 2 have committed breaches and made defaults and violated the terms of the agreement dated 19.11.1975 and therefore, prayed that both the respondents, original respondent Nos. 1 and 2 be ordered and decreed to hand over quiet, vacant and peaceful possession of the suit premises viz. Flat No. 5 on the second floor and further direction to the respondent Nos. 1 and 2 to pay mesne profits at the rate of Rs. 250/ - per month or such other sum as may be ordered by the Competent Authority.

(3.) MR . Thorat, learned senior counsel appearing for the petitioners raised two -fold contentions in support of revision application. His first contention is that, on the face of the averments made in the application made by the original applicant, Section 13A(2) was not attracted and the Competent Authority had no jurisdiction. The submission of the learned senior counsel is based on the facts that, according to the averments made in the application for eviction under Section 13A(2), the date of the licence agreement 19.11.1975. In the application in unequivocal terms it has been stated that the said agreement for licence due to breaches and defaults by the original respondent No. 1 came to an end on 31.3.1978. According to Mr. Thorat, the provisions of Section 13A(2) came into force vide Maharashtra Amending Act No. 18 of 1987 with effect from 1.10.1987 and the said provision is not retrospective and cannot be invoked to the licence which stood terminated or revoked prior to 1.10.1987. In support of this contention Mr. Thorat, learned senior counsel appearing for the petitioners relied upon the judgment of this Court in Dinkar Keshav Deshmukh v. Vasanidada Sugar Institute, Pune : (1997)99BOMLR138 . The second contention of the learned senior counsel for the petitioners is that the original respondent No. 2 (petitioners herein) are not party to the so -called licence agreement dated 19.11.1975, Even if it be assumed that it was open to the original applicant to make an application under Section 13A(2) though the licence expired prior to 1.10.1987, the Competent Authority under Sub -section 3 of Section 13A(2) has no jurisdiction to entertain any claim of whatever nature against the person who is not a licensee according to the agreement of licence.