JUDGMENT
R.M. Lodha, J.
1. This Civil Revision Application filed under section 31F of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, ‘Bombay Rent Act’) is directed against the order of eviction passed by the Competent Authority, Konkan Division, Bombay on 10th May, 1996 in Case No. 19/95 against the present petitioner in the proceedings under section 13A(2) of the Bombay Rent Act.
2. On 28-12-1993 an agreement for leave and licence was entered into between Mr. Parvez Bamansha Bhesania respondent No. 1 herein (for short, ‘licencor’) and the present petitioner Ramesh Ramrao Hate (for short, ‘licensee’) permitting the licensee to use and occupy flat No. 32, 8th floor, Jai Jalaram Co-operative Housing Society, Kharkar Alley, Thane (West) owned by licencor for a period of 11 months from 28th December, 93 to 27th November, 94. The licensee was required to pay compensation for use and occupation of licenced premises @ Rs. 3,863/- p.m.. The licensee also deposited a sum of Rs. 20,000/- with the licencor as a guarantee for the due performance and observation of the terms and conditions of the agreement. The licensee did not handover possession of the flat in question to the licencor on expiry of the licence period necessiating filing of an application under section 13A(2) of the Bombay Rent Act by the licencor against the license before the Competent Authority, Konkan Division, Bombay. The said application was based on the facts that the flat in question was given on the basis of written leave and licence agreement dated 28-12-93 for a period of 11 months upto 27-11-94 and on expiry of the licence period the licensee was duty bound to hand-over peaceful vacant possession but he did not vacate the premises in question on expiry of the licence. An order of eviction was thus, sought by the licencor against the licensee from the Competent Authority.
3. The licensee filed written statement to the application and set-up the plea that in fact the premises in question were given to him on rent and he was tenant of the disputed premises but the tenancy document was styled as leave and licence agreement. It was also set-out by the licensee in the written statement that his claim of tenancy is already subjudice in the Court of Civil Judge, Senior Division, Thane in the suit filed by him for declaration, injunction and for fixation of standard rent and, therefore, the application under section 13A(2) made by the licencor before the Competent Authority was misconceived.
4. Before the Competent Authority both the parties examined themselves in support of their respective case, and, Competent Authority after taking into consideration the documentary and oral evidence and the contentions raised by them ordered eviction of the licensee from suit premises and directed him to handover the vacant and peaceful possession of flat in question to the licencor within 30 days from the date of the order i.e. 10th May, 96. The licensee was also directed to pay damages/compensation @ Rs. 7,686/- from 27-11-94 till the possession was handed over to the licencor. The order passed by the Competent Authority on 10-5-96 is assailed in the present revision application.
5. Mr. Jahagirdar, learned Counsel for the petitioner has mainly contended that the plea of the petitioner was that he was inducted as tenant in the disputed premises but the document was styled as leave and licence agreement and, therefore, the observations made by the Competent Authority that it was not open to the petitioner herein to lead evidence to establish the real transaction of tenancy was not proper. According to Mr. Jahagirdar, Explanation (b) to section 13A(2) which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein cannot be construed as a clog on the defence of the licensee about the real transaction of tenancy between the parties. Mr. Jahagirdar contends that Explanation (b) has to be read in the context that section 13A(2) provides a special remedy to the licencor-landlord to seek possession of the premises given on licence on its expiry, if the licensee fails to handover the possession, and, accordingly in view of the said explanation the licencor-landlord if he moves the Competent Authority for eviction of the licensee under section 13A(2) based on the written agreement of leave and licence, the proof of the contents of like said leave and licence agreement by the licencor is dispensed with, but that would not take away right of the alleged licensee to set-up the defence about the real transaction that he was tenant in the premises in question and not licensee and upon such plea being raised, the Competent Authority is required to go into this question and plea of alleged licensee cannot be shut out. Mr. Jahagirdar submitted that Explanation (b) of section 13A(2) must not be over-stretched to shut any defence that may be raised by the alleged licensee about the real transaction.
6. Mr. Chhatrapati, learned Counsel appearing for the respondent on the other hand submits that controversy in question is concluded by the two judgments of this Court in Amarjit Singh, petitioner v. R.N. Gupta, respondent, ; and, Swami Attah @ Rapheal Alfandary, petitioner v. Mrs. Thrity Poonawalla, respondent, and, therefore, the contentions raised by the learned Counsel for the applicant are devoid of any merit. Mr. Chhatrapati submitted that the Competent Authority has rightly passed the impugned order in the light of the aforesaid two judgments of this Court, and, the order of eviction passed by the Competent Authority cannot be faulted.
7. Section 13A(2) of the Bombay Rent Act reads thus :—
“13-A(2)—Landlord entitled to recover possession of premises given on licence on expiry of licence.—(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee; on the expiry of the period of licence by making an application to the Competent Authority; and the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.
(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.
(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.
Explanation :—For the purposes of this section—
(a) the expression “landlord” does not include a tenant or a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.”
8. The controversy centres round the Explanation (b) which makes a provision that an agreement of licence in writing shall be conclusive evidence of the facts stated therein. Though the expression used in explanation is “conclusive evidence” it cannot be differentiated with the expression “conclusive proof”. In 1. Smt. Sonawanti and others v. The State of Punjab and others, , the Apex Court compared the expressions ‘conclusive evidence’ and held that there is no difference between the two expressions. The Supreme Court thus held—
“18. A distinction is sought to be made between “conclusive proof” and “conclusive evidence” and it is contended that where a law declares that a fact shall be conclusive proof of another, the Court is precluded from considering other evidence once such fact is established. Therefore, where the law makes a fact conclusive proof of another the fact stands proved and the Court must proceed on that basis. But, the argument proceeds, where the law does not go that far and makes a fact only “conclusive evidence” as to the existence of another fact, other evidence as to the existence of the other fact is not shut out. In support of the argument reliance is placed on section 4 of the Evidence Act which in its third paragraph defines ‘conclusive proof’ as follows :
“When one fact is declared by this Act to be conclusive proof of another, the Court, shall on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”
This paragraph thus provides that further evidence is barred where, under the Evidence Act, one fact is regarded as proof of another. But it says nothing about what other laws may provide.
There are a number of laws which make certain facts conclusive evidence of other facts : (see Companies Act, 1956, section 132; the Indian Succession Act, 1925, section 381; Christian Marriage Act, 1872, section 61; Madras Revenue Act, 1869, Section 38; Oaths Act, 1873, section 11). The question is whether such provision also bars other evidence after that which is conclusive evidence is produced.
19. The object of adducing evidence is to prove a fact. The Evidence Act deals with the question as to what kind of evidence is permissible to be adduced for that purpose and states in section 3 when a fact is said to be proved. That section reads thus :
“Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
Since evidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that fact can be proved either by that evidence or by some other evidence which (sic) the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression ‘conclusive proof’ where the object is to make a fact non-justifiable. But the legislature may use some other expression such as ‘conclusive evidence’ for achieving the same result. There is thus no difference between the effect of the expression ‘conclusive evidence’ from that of ‘conclusive proof’, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another”.
9. Once the legislature by Explanation (b) of section 13A(2) has provided that a written agreement of licence shall be conclusive evidence of the facts stated therein, it provided a special rule of evidence for the purpose of proceedings under section 13A(2) of the Bombay Rent Act. The intention of the legislature was to give finality to the existence of a facts occurring in the written agreement of leave and licence. In other words legislature intended to shut out any other evidence which would detract from the conclusiveness of that evidence. The object of expression ‘conclusive evidence of fact stated therein’ is aimed to give finality to the establishment of the existence of the fact or facts stated in the written leave and licence agreement from the proof of another. The argument of learned Counsel for the petitioner that Explanation (b) only makes the written agreement of licence conclusive evidence as regards the licencor and not against the licensee is very difficult to be appreciated. Once it is provided by the legislature that an agreement of licence in writing shall be conclusive evidence of the facts stated therein, it prohibits from leading any other evidence which may affect the conclusiveness of that evidence. The law laid-down by the Apex Court in Smt. Somawanti and others’ case (supra), is clear answer to the contention of the learned Counsel for the petitioner wherein the Apex Court has held that once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. Not only that when a certain evidence is made conclusive evidence, it prohibits any other evidence to be led which may detract from the conclusiveness of that evidence, but also the Court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Once an execution of the agreement of leave and licence is not disputed before the Competent Authority in an application under section 13A(2) based on such leave and licence agreement, it is conclusive evidence of the facts stated therein and no other evidence can be led inconsistent with the said facts by either of the parties and is conclusive between the parties of the facts stated therein. The Competent Authority has no option but to hold that the facts stated therein do exist. Same position holds good also in a case where the execution of written agreement of leave and licence is denied and the Competent Authority after recording evidence reaches the conclusion that execution of such agreement for leave and licence has been proved by the licencor.
10. Explanation (b) of section 13A(2) came up for consideration before this Court in Amarjit Singh’s case (supra), and, this Court held thus :
“Section 13A(2) of the Bombay Rent Act provides a procedure for eviction of a licensee before a competent authority. Then a special rule of evidence is prescribed in section 13A(2)(3)(b) which provides that an agreement of licence in writing shall be conclusive evidence of the facts stated therein”.
11. Again in Swami Attah’s case (supra) this Court held that “the words appearing in Explanation (b)” an agreement of licence in writing shall be conclusive evidence of the facts stated therein” must be in ordinary and grammatical manner have the effect of shutting out any other evidence on the subject which might be adduced before the Court.
12. Mr. Jahagirdar, the learned Counsel for the petitioner contends that view of this Court in Swami Attah’s case (supra) and Amarjit Singh’s case (supra) requires reconsideration. The contention of the learned Counsel for the petitioner has to be rejected on the face of the ratio laid-down by the Apex Court in Smt. Somawanti’s case (supra), and, two judgments of this Court in Amarjit Singh (supra) and Swami Attah (supra) are consonance with the view of Apex Court in Smt. Somawanti’s case (supra).
13. In the result, Civil Revision application is dismissed with no order as to costs.
14. Mr. Jahagirdar, learned Counsel for the revisionist submits that four weeks time may be given to the applicant to enable him to move the Supreme Court against the order passed by the Competent Authority and confirmed by me in this Revision Application. The learned Counsel for the respondent submits that four weeks time may be granted to the petitioner subject to the condition that the applicant pays the entire compensation in accordance with the order passed by the Competent Authority within two weeks from today and furnishes an undertaking before this Court that the applicant shall hand-over peaceful and vacant possession to the respondent unless ordered otherwise by the Supreme Court.
15. Accordingly, four weeks time is granted to the applicant on the condition that he pays the entire amount of compensation in accordance with the order passed by the Competent Authority to the respondent by way of account payee banker’s cheque within two weeks from today and also submits an undertaking before this Court to hand-over peaceful and vacant possession of the premises in question to the respondent on expiry of four weeks from today unless ordered otherwise by the Apex Court.