NARANJI BHIMJI FAMILY TRUST Vs. UB-DIVISIONAL OFFICER

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. With consent of learned Counsel for the parties, the matter is taken up for final hearing immediately. Heard learned Counsel for the parties.

(2.) The petitioner claims to be owner and landlord of the suit premises admeasuring 2137 sq. ft., which is part of the property bearing City Survey No. 1060 admeasuring 1687.1 sq. mtr. shown on sheet No. 13, Tq. Ramtek, dist. Nagpur. The property originally belonged to one Shamji Naranji and in the year 1962, by order of the Charity Commissioner, the said property was included in Naranji Bhimji Family Trust and accordingly entry was also taken in the city survey record in the year 1969. According to the petitioner-Trust, one Nanalal Thakkar, husband of respondent No. 2 and father of respondent No. 3 was in the service of Shamji Naranji. Said Nanalal died in the year 1972. Respondent Nos. 2 and 3 i.e. legal representatives of said Nanalal had no residential accommodation and, therefore, on their request and taking into consideration the past services of said Nanalal, the petitioner-trust allowed them in the year 1980-81 to occupy the suit premises consisting of five rooms and two varandha etc. as licensee. Thus, occupation of the respondents is permissive. Respondent No. 3 had filed Regular Civil Suit No. 65/1990 in the Court of Civil Judge, Junior Division, Ramtek seeking declaration that he was owner of the property on the basis of oral gift. That suit came to be dismissed on 8.2.2005. According to the petitioner, they had repeatedly asked respondent Nos. 2 and 3 to vacate the premises but they avoided. Finally on 1.4.2005, notice was issued to them but in vain. With these pleadings Revenue Case No. l/A-71(2)/05-06 under section 43 of the Maharashtra Rent Control Act, 1999 (For short the "Act") was filed by the petitioner.

(3.) Respondent Nos. 2 and 3 filed an application on 5.9.2005 seeking leave to appear and to contest that application as contemplated in section 43(4) and (9) of the Act. . In that application also, the main defence was that Shamji Naranji Lohana had made oral gift of the suit property in favour of father of non applicant No. 2 for selfless services rendered by him and thus he had become owner of the property. Non applicants claimed to be owners of the property and according to them, in view of this, it was necessary to grant them leave to appear and to contest the matter. That application was opposed by the petitioner. It appears that both the parties filed their notes of arguments in respect of the leave sought by non applicants to appear and contest the application. However, while deciding the question of leave, the Sub-Divisional Officer, Ramtek, who was the Competent Authority under the Act, dismissed the application of the petitioner itself holding that in view of the provisions of section 22 of the Act, it is necessary that there should be written agreement of service tenancy and as in the present case, there was no such written agreement and, therefore, the application itself is not tenable under section 42 of the Act. That order is challenged in the present petition.