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TMI Blog2008 (9) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... ial flat bearing flat no.51 on the fifth floor along with two car parking spaces under the stilts of Victoria Apartment, St.Alexious Road, Bandra. The respondent allowed the petitioner to occupy the said premises in terms of leave and licence agreement dated 25th March 2003 for a period of 22 months therefrom. Inspite of expiry of the licence period, the petitioner continued to occupy the suit premises. Not only that, petitioner filed suit for declaration that they are tenants in respect of the suit premises bearing R.A. Declaratory Suit no.729 of 2005 in the Small Causes Court at Bandra. That suit was filed in October 2005. Soon thereafter, respondent filed application before the Competent Authority u/s.24 of the Maharashtra Rent Control Act for eviction of the petitioner who were occupying the suit premises as licensee in terms of leave and licence agreement dated 20th March 2003 which admittedly expired in January 2005. In the said proceedings, the petitioners raised several issues. In that proceedings, the principal stand taken on behalf of the petitioners was that they were occupying the suit premises as tenants and not as licensee. That claim of the petitioner was on the assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent had treated the petitioner as tenant in respect of the suit premises. This argument does not commend to me. In the first place, the plea of waiver has to be expressly pleaded and proved. In any case, the argument of waiver is unavailable in view of the statutory mandate which postulates that the agreement of licence in writing shall be conclusive evidence of the fact stated therein. From the leave and licence agreement dated 25th March 2003, which was pressed into service before the court before, it is more than clear that the arrangement between the parties was purely one of leave and licence and the relationship created between the parties on account of the said transaction was that of licensor and licensee. The legal presumption u/s.24 if applied on the basis of the said agreement it would necessarily follow that the petitioners were obliged to vacate the suit premises on expiry of the licence period in January 2005. The petitioners have obviously failed to comply with the said obligation. The fact that the respondent owner continued to accept the monthly compensation after the licence period was over or for that matter did not issue any legal notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the suit premises was one of landlord and tenant and not that of licensor and licensee. 9. Be that as it may, the fact that the respondent has instituted application u/s.24 of the Act almost after 11 months from the expiry of the licence period, does not by itself indicate that the respondent has waived his statutory right of eviction of the petitioner from the suit premises. Counsel for the petitioners would then rely on the decision of the Calcutta High Court in Manicklal Dey Chaudhuri Vs. Kadambini Dassi reported in AIR 1926 Calcutta 763 wherein the Calcutta High Court has observed that acceptance of rent even after suit for ejectment is filed, amounts to waiver. That decision once again will be of no avail to the fact situation of the present case. There is legal presumption u/s.24 of the Act about the conclusiveness of the contents of the leave and licence agreement. Once that legal presumption remains unshattered the question of accepting any other grievance of the petitioner would result in diluting the efficacy of the said legal presumption. As aforesaid, the fact that the respondent continued to accept monthly compensation even after January 2005 does not resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow have considered the defence of the petitioners in this behalf and rejected the same. That is the finding of fact which would bind this court. Merely because another view is possible or that there is some error here or there in the judgement under challenge, cannot be the basis to exercise writ jurisdiction under Article 227 of the Constitution of India. In so far as the finding recorded by the two courts below on the material issue as to whether the petitioners are liable to be evicted from the suit premises, I have no hesitation in upholding the same as just and proper and in accordance with the legal requirement. 12. The next question however is whether the direction issued by the Competent Authority requiring the petitioner to pay damages at the rate of Rs.56,000/- per month from 16th January 2005 till handing over of possession of suit premises to the respondent can be sustained. In my opinion, the Court below have committed manifest error in granting that relief without considering the fact that after expiry of the licence period in January 2005, the respondent did not call upon the petitioners to vacate the suit premises nor informed them that they would be liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of Rs.56,000/- (which is inclusive of damages for using the furniture and fixture) cannot be sustained. Instead, it will have to be held that the petitioners would be liable to pay damages in respect of suit premises with effect from 16th December 2005 at the rate of Rs.36,000/- per month (twice the rate of licence charges i.e. Rs.18000/- for the "suit premises") till handing over of possession of the suit premises to the respondent. 14. Accordingly, this writ petition partly succeeds. Rule is made partly absolute in the following terms: (i). The impugned judgement and order directing the petitioners to hand over vacant and peaceful possession of suit premises i.e. Flat no.51, 5th floor, Victoria Apartment, CTS No. C/545, Village Bandra, St.Alexious Road, Bandra (W) Mumbai 400 050, to the respondent is upheld and confirmed. (ii) The direction issued by the Competent Authority to the petitioners to pay damages in respect of the suit premises is modified to the effect that the petitioners shall pay damages in respect of the suit premises at Rs.36,000/- per month with effect from 16th December 2005 till handing over of possession of the suit premises to the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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