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
R.G. Ketkar, J.