Whether unregistered leave and licence agreement is admissible in evidence?

The contention of the learned Advocate for the petitioner that the absence of registered written agreement would render of license to be invalid and therefore, it would result in the absence of jurisdictional fact to enable the Competent Authority to entertain the application under Section 24 of the said Act, cannot be accepted. The jurisdictional fact which is required for the Competent Authority to entertain the application for eviction under Section 24 of the said Act is the expiry of license for residence in favour of the person occupying the premises and moment the same is disclosed based on whatever material placed before the competent authority, it will empower the competent authority to take cognizance of such application and to proceed to deal with the matter. Absence of registration or even the agreement being not in writing, that would not render the license to be invalid. Undoubtedly, expiry of licence presupposes existence of license prior to its expiry. However, the existence of licence does not depend upon its record in writing or registration thereof. It depends upon the availability of permission by the landlord to another person to use the landlord's premises for consideration and moment those factors are established, the person using the premises would be the licencee within the meaning of the said expression under the said Act. Obviously, the written record in relation to the agreement of licence would be the conclusive proof about the terms of licence and in case of registration of such agreement would help the landlord to avoid the consequences stipulated under Section 55(2) and (3) of the said Act. This is apparent from the definition of the term "Licensee" under Section 7(5) of the said Act which nowhere requires the license granted to occupy the premises for license fee or charge to be necessarily in writing or the agreement to have been registered. If the contention of the learned Advocate for the petitioner is accepted, the provisions of sub-section (2) of Section 55 of the said Act as well as the Clause (b) to the Explanation of Section 24 would be rendered otiose. No provision of law can be interpreted to nullify the affect thereof or to render the provision to be nugatory."

17. In paragraph-15, the contention advanced on behalf of me licensee that the provisions regarding requirement of registration of leave and licence agreement found in Section 55(1) of the Act will have to be read along with the list of compulsorily registrable documents under Section 17 of the Registration Act, 1908 was not accepted. It was observed that while providing for the consequences of failure on the part of the landlord to get such agreement registered, the provisions of law in the said Act nowhere exclude unregistered agreement of leave and license to be inadmissible in evidence. On the contrary, the said agreement has been made specifically admissible under Clause (b) of the explanation to Section 24 of the Act which is not in consonance with the provision of law comprised under Section 49 of the Registration Act, 1908. If it was the intention of the legislature that the provision regarding the requirement of registration of leave and license agreement has to be read along with Section 17 of the Registration Act, 1908, nothing would have prevented the legislature to introduce amendment to Section 17 itself or at least to make such agreement inadmissible in the evidence rather than specifically providing for admissibility of such document in evidence as being a conclusive proof of the facts stated therein irrespective of the fact that the agreement is not registered.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7087 of 2008

Decided On: 06.07.2018

 Vimalaben Gosalia  Vs. Veena Dushyant Malgonnkar

Hon'ble Judges/Coram:

R.G. Ketkar, J.

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Whether civil suit will be barred if tenancy agreement is not registered?

 This Court, in the matter of Raj Prasanna Kondur v. Arif Taher Khan and Ors., reported in MANU/MH/1264/2004 : 2005 (4) Bom.C.R. 383, has held that the right of a landlord under Section 24 to get a person evicted from the premises on expiry of license is not curtailed in any manner on account of absence of the agreement being in writing or registered, as contemplated by Section 55 of the Act.

Section 55 of the Act nowhere provides for "any other consequence" for failure on the part of the landlord to get the agreement drawn in writing or getting the same registered, except those provided in Sub-section (3) of Section 55. In other words, on account of failure of the landlord to get the agreement registered, he cannot be precluded or prohibited from presenting a plaint in Civil Court seeking recovery of rent. The consequence of failure to record the agreement in writing and to get it registered, would put the tenant in an advantageous position at trial, as his contention as regards the terms and conditions of tenancy will have to be accepted, unless proved otherwise. Section 55 of the Act nowhere puts an embargo in respect of entertain ability of any civil action by the landlord either for recovery of rent or for recovery of possession of the tenanted premises on account of his failure to secure an agreement of tenancy in the form, as contemplated by Section 55(1) of the Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 7 of 2011

Decided On: 19.04.2011

Shashikant  Vs.  Nirmala

Hon'ble Judges/Coram:

R.M. Borde, J.

Citation:2011(5) MHLJ 251:2011(3) ALLMR 832

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Whether lease agreement will become void if it is not registered?

 The learned Counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of Section 55 of the Act. He contends that since the agreement is not registered the tenancy is void. The argument has no force. If the tenancy is created after coming into force of the Act, it will require registration. The Section does not say that tenancy shall become void. Non registration may at the most invite penalty and lease cannot become void.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 4027, 4028 and 4029 of 2008

Decided On: 17.07.2009

 Janabai Govindrao Korche  Vs. Women's Education Society and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: 2009(5) ALLMR 926

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Whether incorrect interpretation of leave and licence agreement is binding on licensor?

Mr. Seervai then relied upon Section 55 of the Maharashtra Rent Control Act, 1999, which reads as under:

55. Tenancy agreement to be compulsorily registered.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908 (XVI of 1908).

(2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise.

 Secondly, and more important, is the fact that the reliance upon Section 55(2) in the facts of the present case, is entirely misconceived. Under Section 55(2) if the agreement is not registered "the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise". The term "contention" in Section 55(2) refers to contentions of fact and not of law. Construction of the terms and conditions of a contract are questions of law. A court cannot be bound by an erroneous construction of the contract.

19. In this case, there is no dispute between the parties as to the terms of the agreements. It is not the company's case that any terms other than those contained in the said leave and licence agreement were agreed upon between the parties. In other words, the submission was not based on the existence of an independent term. The first contention raised by Mr. Seervai was based on the construction of admitted terms. I have held this construction to be erroneous. There is nothing in Section 55 which remotely suggests that even an incorrect interpretation of an agreed/admitted term is binding on the licensor.

IN THE HIGH COURT OF BOMBAY

C.P. No. 898 of 2008

Decided On: 12.02.2009

 Corporate Management Council of India P. Ltd. Vs.  Lonza India P. Ltd.

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Whether agreement will come into existence even if it is to be performed at future date?

Mr. Seervai contended that the said leave and licence agreements had not come into effect/existence. He based the submission on the fact that the agreements had been terminated prior to the commencement of the terms thereof.

10. The submission is not well founded. The agreements were executed by both the parties. The mere fact that they were to be performed at a later date cannot possibly lead to the conclusion that the agreements had not come into existence and that the parties were not bound by the terms thereof. There is a fundamental difference between an agreement coming into existence and the date for the performance thereof. Merely because obligations under an agreement are to be performed at a future date, it does not follow that the agreement has not come into existence upon the execution thereof or upon the terms and conditions thereof being agreed upon.

IN THE HIGH COURT OF BOMBAY

C.P. No. 898 of 2008

Decided On: 12.02.2009

 Corporate Management Council of India P. Ltd. Vs.  Lonza India P. Ltd.

Hon'ble Judges/Coram:

S.J. Vazifdar, J.

Citation: 2009(3) ALLMR 770

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When prosecution for violation of S 55 of Maharashtra rent control Act is liable to be quashed?

 We have perused the impugned order passed by the Magistrate. While passing the order dated 6th August, 2015, the Magistrate has not recorded the reasons. The Magistrate ought to have assigned the reasons, at least in brief, keeping in view the exposition of law by the Supreme Court in the case of Anil Kumar and others v. M.K. Ai-yappa and another MANU/SC/1002/2013 : 2013(4) R.C.R. (Criminal) 586 : (2013) 10 S.C.C 705 and the Division Bench of the Bombay High Court Bench at Nagpur in the case of State of Maharashtra v. Shashikant Eknath Shide 2013(4) Bom.C.R.(Cru) 801.

32. It is also relevant to mention that already the civil dispute arising out of the proceedings of Regular Civil Suit No. 1001 of 2009 is pending between the parties.

33. Thus, on both counts, firstly no reasons are assigned by the Magistrate while passing the said order, and secondly the civil dispute is pending between the parties, the order dated 6th August, 2015 passed by XIII Judicial Magistrate, First Class, Aurangabad and consequential proceedings in S.C.C. No. 3181 of 2015 deserve to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 1150 of 2015

Decided On: 19.12.2017

Labhshetwar & Sakkarwar Constructions Vs. State of Maharashtra

Hon'ble Judges/Coram:

S.S. Shinde and Mangesh S. Patil, JJ.

Citation: 2018(4) MHLJ 242

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Whether obligation to get tenancy agreement is continuous in nature?

I quite see that, issue of limitation is a mixed question of fact
and law and the adjudication necessarily can only be done by the fact
The complaint petition illustrate, lastly on 22.3.2007 the
finding Court.

complainant/ respondent No.2 urged the petitioners for execution of the
document, which has not been complied with. The nob- abstant clause in
Section 55, which is a special statute in itself, is indicative that provisions
of Criminal Procedure Code and particularly Section 468 thereof will not be
The requirement of Section 55 is, so long as the tenant/
applicable.
respondent No.2 occupies the premises, the obligation flows to the
petitioners to get the document executed and registered. The offence,
therefore, certainly continues. Section 2(n) of the Criminal Procedure code
contemplate offence which constitute an omission of law for the time being
in force. It also includes any act in respect of which a complaint may be
made.
13.
Law requires the petitioners, in fact, for each continuation of
the lease period to get the document registered, which, as indicated,
having cast an obligation, failure warrants the action. There cannot be a
contest on the legal position indicated in the matter of Udai Shankar
Awasthi Vs. State of Uttar Pradeshi & anr. [ (2013) 2 Supreme Court
Cases 435 ] as referred in para 46 thereof, dealing with a reported case in

the matter of Kishan Singh Vs. Gurpal Singh ( 2010 (8) SCC 775 ). The
complaint petition of the respondent No.2, even if is filed after eviction
proceedings by the petitioners, however, the inherent right in the
respondent No.2 to take recourse to Section 55 of the Rent Act is not
whittled away or foreclosed. The complaint petition cannot be branded as
arduous proceedings.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.682 OF 2011

Rohit Dinesh Photographer Vs  The State of Maharashtra



CORAM: K.U. CHANDIWAL, J.
DATED: 25th April, 2013.
Citation;2014(5) MHLJ317

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Whether requirement of registration of tenancy agreement is retrospective in nature?

 Mr. Apte, the learned counsel for the petitioner, firstly submits that the agreements of leave and licence dated 1st May, 1996 and 1st April, 1998, though executed in writing, are not registered and hence not admissible in evidence in view of Section 55 of the Act. Section 55 of the Act reads as under :-

Section 55. Tenancy agreement to be compulsorily registered. -

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908.

(2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise.

(3) Any landlord who contravenes the provisions of this section shall, on conviction be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or with both.

A bare perusal of sub-section (1) of Section 55 of the Act shows that only the agreements which have been entered into between a landlord and a tenant or a licensee after the commencement of the Act are required to be in writing and are also required to be registered under the Registration Act, 1908. The Act came into force only on 31st March, 2000 by virtue of the notification issued under sub-section (3) of Section 1 of the Act and has no retrospective operation.

Bombay High Court

Anjali Jayant Gandhi vs Ramesh Gopal Vagholikar on 16 July, 2004

Equivalent citations: 2005 (2) BomCR 933, (2005) 107 BOMLR 812, 2005 (1) MhLj 537

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