KRANTIBALA SUBHASHCHANDRA SHAH Vs. SATISHCHANDRA SHANTILAL SHAH

JUDGEMENT

(1.) BY the present petition, the petitioner is challenging the order dated 25th October, 1991 passed by the competent authority at Pune whereby the application filed by the petitioner under section 13-A-2 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter called as "the said Act"), was dismissed.

(2.) THE facts in brief relevant for the decision are that the petitioner herein is the owner of a flat being Flat No. 3 in Umesh Building of Krutarth Co-operative Housing Society situated in the plot bearing Survey No. 692/693 within the limits of Pune Municipal Corporation and the district of Pune. The respondent is the younger brother of the husband of the petitioner and was allowed to use the suit flat for his occupation by virtue of an agreement dated 5th October, 1990 on condition that he should cease to occupy the same on or before 31st April, 1991. Since the respondents failed to vacate the suit flat even after the expiry of the stipulated time, the petitioner filed an application under section 13-A-2 r/w section 31-D of the said Act for eviction of the respondent. The summons of the said proceedings was served upon the respondents on 11-7-1991. However, no application in terms of section 31-E (4) (a) of the said Act was filed by the respondent to seek leave to contest the proceedings within the prescribed period. However, after the expiry of the said period and on 17th August, 1991 the respondent filed an application to seek leave to file the written statement which was rejected by the competent authority by its order dated 30th September, 1991. Moreover, thereafter the competent authority by the impugned order dated 25-10-1991 dismissed the application of the petitioner on the ground that the agreement referred to in the application does not disclose that the permission for occupation on the suit land was on payment of licence fee or charges and, therefore, the respondent cannot be evicted from the suit premises under the said Act.

(3.) THE learned advocate appearing for the petitioner while reading the impugned order drew my attention to section 31-E (4) (a) of the said Act and submitted that in terms thereof it was necessary for the respondent to seek leave of the competent authority to contest the proceedings by filing application to that effect within a period of 30 days from the date of service of summons and the respondent having failed to do so, the competent authority had in fact rejected the respondents application for leave to file written statement thereafter by order dated 30th September, 1991. In the facts and circumstances of the case, it was not permissible for the competent authority to reject the application of the petitioner on some extraneous grounds. The application of the petitioner clearly discloses that the respondent was permitted to occupy the suit flat on licence basis. The licence period had expired on 31st April, 1991. The respondent however had continued to occupy the premises. Thereafter the application for eviction was filed, and yet the respondent had failed to apply for leave to contest the proceedings for eviction. The competent authority in the circumstances had no jurisdiction to dismiss the application filed under section 13-A-2 on the ground that the agreement between the parties does not disclose license fees. The competent authority has acted in excess of its jurisdiction by dismissing the application and, therefore, the impugned order should be set aside and the application filed by the petitioner should be allowed.