With the passage of time,
the system of giving properties on leave and license basis in Maharashtra is
taking its roots, but still a good number of the property owners are
apprehensive because they are not sure that they would get back possession of
the properties on the expiry of the term. However, in view of the following
judicial pronouncement, such fear seems unfounded, provided legal requirements are complied with.
One Shri Mohd. Hussain
Furniture Walla, (Licensor) as the owner of Flat No. 51, in Victoria
Apartments, St. Alexius Road, Bandra, Mumbai, gave his premises on leave and
license basis, as per the Agreement dated 25.03.2003, for a period of 22 months
to one Ms. Pari-neeta Choudhary on a monthly license fee of Rs.18,000.
In addition, an additional
agreement was also executed between the parties for payment of charges at
Rs.10,000 per month in respect of furniture and fixtures in the said premises.
The term of the license expired in January 2005 and the licensee continued to
occupy the said premises even thereafter and licensor accepted the monthly
license fee and the additional charges. Only on to" December 2005, he
moved a petition before the Competent Authority, who, besides ordering eviction
of the licensee, also directed her to pay the damages at Rs. 56,000/- per month
from 16th January 2005 till handing over possession of the licensed premises to
the lesser.
This decision was
challenged by way of revision u/s 44 of the Maharashtra Rent Control Act by the
licensee but the same was dismissed and the order of the Competent Authority
was upheld.
Aggrieved by this
orderthe licensee filed a Writ Petition No.2276 of 2008 before the Hon'
ble Bombay High Court under Article 227 of the Constitution of India. The matter came up
for hearing before Hon'ble Mr. Justice A. M. Khanwilkar on the 9th September
2008, when the licensee pleaded that not issuing legal notice to her and
continuing to accept the monthly license fee, was indicative of the fact that
the licensee has become the tenant in respect of the licensed premises. But
this argument was not accepted by the Hon'ble High Court which observed that
the fact of acceptance of the monthly compensation by itself would not to be
sufficient to positively hold that the relationship of the parties that of
licensor and licensee was converted into one of landlord and tenant and the
fact that licensee instituted the proceedings before the Competent Authority,
almost after 11 months from expiry of the license period, would again not by
itself indicate that he has waived his statutory right of eviction of the
petitioner from the suit premises because there is legal presumption uls 24 of
the Act about conclusiveness of the contents of the leave and license agreement.
It would merely indicate that the licensor allowed the licensee to overstay the license period and nothing more and the relationship would still remain of licensor and licensee.
The Hon'ble High Court
has, therefore, held that the arrangement between the parties was purely one of
the leave and license and the relationship created between them on account of
the said transaction was that of the licensor and licensee and in view of the
legal presumption u/s 24 of the Act, it would necessarily follow that the
licensee is obliged to vacate the premises on the expiry of the license period
in January, 2005.
On the question of payment
of damages from 16th January 2005, the Hon'ble High Court did not agree with
the order of the Competent Authority, as upheld in the revision.
The Hon'ble High Court
observed that the licensor did not call upon the licensee to vacate the suit
premises nor informed her that she would be liable to pay damages for
continuing possession and he filed the eviction proceedings only 16th December
2005. Therefore, the licensor would be entitled for the damages from the
licensee at double the rate of license fee fixed in the Agreement of License
only from 16th December 2005, when he initiated the proceedings.
As regards the quantum of the damages, again the Hon'ble High Court did not agree with the order of the Competent Authority, as upheld in revision and observed that the licenseagreement provided for the monthly licensee fee @ Rs. 18,0001- only and the additional agreement to pay charges @ Rs. 10,0001- in respect of furniture and fixtures provided therein cannot be reckoned for purposes of computing damagesuls 24(2) of the said Act. Therefore, the Hon'ble High Court held that licensee would be liable to pay license fees @ Rs. 18,0001- from 16-12-2005 till handing over the possession to the suit premises.
Property Advocates in Bangalore
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