SWAMI ATTAH ALIAS RAPHEAL ALFANDARY Vs. THRITY POONAWALLA

JUDGEMENT

(1.) THIS revision application takes exception to the order passed by the Competent Authority, Pune, under section 13-A (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "the Act") directing the petitioner to deliver vacant possession of the licensed premises to the respondent.

(2.) THE respondent is the owner of a bungalow situated at 1-B, Dr. Koyaji Road, Pune. Under an agreement of leave and licence dated March 2, 1993, the respondent inducted the petitioner as licensee in respect of the first floor of the said bungalow for a period of two years. After the expiry of the licence period, the respondent filed a petition for eviction against the petitioner before the Competent Authority alleging that the petitioner is staying in the suit premises as a licensee and since the period of licence is expired, he is liable to be evicted. In contesting the petition, the petitioners contention was that he is not a licensee, but he is a tenant in possession and he, therefore, is entitled to protection of the Act. The petitioner also contended that he has spent a huge amount in making renovations and repairs to the suit premises and, therefore, the respondent has no right to claim the possession. After recording evidence and hearing both the sides, the Competent Authority has held that the transaction between the parties is one of leave and licence and since the period of licence has expired, he directed the licensee to vacate the suit premises. The Competent Authority further held that the defence that the transaction is a lessee sic lease, is not available in view of the presumption raised under Explanation (b) to section 13-A (2 ). The defence that the respondent has made major alterations and repairs was also rejected by the Competent Authority.

(3.) MR. Dalvi, learned Counsel appearing in support of the petition, contended that the question whether a particular transaction is one of lease or licence is required to be decided by ascertaining the real intention of the parties and with reference to the circumstances of the case and the finding of the Competent Authority is erroneous. Mr. Dalvi urged that to ascertain whether a document creates a lease or licence, the substance of the document must be preferred to the form. Mr. Dalvi further urged that under the suit agreement, the petitioner got exclusive possession of the property and, therefore, prima facie, he should be considered to be a tenant. He placed strong reliance upon the decisions of the Supreme Court in A. I. R. 1959 S. C. 1262 (Associated Hotels of India Ltd. v. R. N. Kapoor) and (1989) 1 S. C. C 19 (Smt. Rajbir Kaur and another v. M/s. S. Chokesiri and Co.)