Bombay High CourtSmt.Meera R. Khanna vs Arun Kumar Ohri on 19 December, 2009Author:A.S.OkaBench:A.S.Oka1

     mst




                                                                            
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION




                                                    
                           NOTICE NO.1099 OF 2009
                                    IN
                   EXECUTION APPLICATION NO.228 OF 2009




                                                   
                                    IN
                    EVICTION PROCEEDINGS NO.37 OF 2004


     Smt.Meera R. Khanna,




                                      
     R/o.Flat No.33, Building 17, MHADA Flats,
     Bandra Reclamation, Bandra (W),
                       
     Mumbai 400 050.                                                       Applicant

             VERSUS
                      
     Arun Kumar Ohri, Flat No.11,
     Maharashtra Fisheries Co-op. Hsg. Soc;
     Kaustubha, Plot No.8, Bandra Reclamation,
     Bandra (W), Mumbai 400 050 having his
     office at Ad factors Advertising, 2nd floor,
      


     Manek Mahal, Veera Nariman Road,
     Mumbai 400 020.                                                    Respondent
   



     Ms.H.B.Gandhi for the applicant.
     Mr.Gaurav Mehta for the respondent.





                                      CORAM : A.S.OKA, J.

                                      DATE : 19th December 2009





     JUDGEMENT :-1.    A notice was taken out by the applicant under Rule 22 ofOrder

     XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the

     said Code"). With a view to appreciate the submissions made, it will be

     necessary to consider the factual matrix of the case. An application was::: Downloaded on - 09/06/2013 15:27:11 :::2filed by the applicant undersection 24of the Maharashtra Rent Control




                                                                            
     Act, 1999 (hereinafter referred to as "the said Act"). The applicant claimed

     that she was a licensor of a residential premises and she had granted




                                                    
     leave and license to the respondent to use and occupy the said premises.An order of eviction was prayed for. By judgment and order dated 27th




                                                   
     December 2004, the Competent Authority passed an order of eviction and

     also directed the respondent to pay the damages @ Rs.50,000/- per

     month from 1st June 2004 till handing over of vacant possession of the




                                       
     said premises.2.    The Competent Authority by order dated 26th March 2009

     transferred the order of payment of compensation to this Court for

     execution.   The claim under the said order was of Rs.3,50,000/-.Accordingly, an execution application was filed by the applicant praying for
   



     various reliefs including attachment of assets of the respondent. In the

     execution, present notice under Rule 22 of Order XXI of the said Code





     was issued. The respondent has submitted objections to the execution by

     filing an affidavit. Accordingly, I have heard the learned counsel for the

     parties on the objections raised to the execution.3.    The learned counsel appearing for the respondent invited my

     attention tosection 24of the said Act and submitted that undersection 24,

     the Competent Authority is conferred with the jurisdiction only to pass an

     order of eviction. He submitted that on conjoint reading of sub- sections

     (1) and (2) ofsection 24of the said Act, the Competent Authority is not::: Downloaded on - 09/06/2013 15:27:11 :::3conferred with the power to pass an order directing the licensee to pay the




                                                                            
     damages at double the rate of agreed license fee of the premises. He

     invited my attention to the provisions of Chapter-VIII of the said Act and in




                                                    
     particularsection 45thereof. He submitted that undersection 45a power

     is conferred on the Competent Authority to forcibly evict the licensee




                                                   
     against whom an order of eviction has been made under sub-section (1)

     ofsection 24of the said Act. He submitted that the very fact that there is

     no provision made in the said Act for execution of an order of Competent




                                        
     Authority regarding payment of damages shows that the legislature never
                        
     intended to confer any power on the Competent Authority to pass an order
                       
     directing the licensee to pay the damages. He submitted that the order

     sought to be executed is nullity.4.     Without prejudice to the aforesaid contentions , learned counsel for
   



     the respondent submitted that the order passed by the competent

     authority of directing payment of compensation is neither an order within





     the meaning ofsection 2(14)nor a decree within the meaning ofsection

     2(2)of the said Code. He submitted that the Competent Authority is not a

     Civil Court. He placed reliance on a decision of the Apex Court in the





     case ofPrakash S. Jain Vs. Marie Fernandes[2004(5)-ALL M.R.(SC)-1.He submitted that the Apex Court has held that the Competent Authority

     exercising the jurisdiction undersection 24of the said Act is not a Court

     and, therefore, the Competent Authority has no power to condone the

     delay in filing an affidavit seeking leave to defend contemplated by subsection 4(a)ofsection 43of the said Act. He submitted that as the Apex::: Downloaded on - 09/06/2013 15:27:11 :::4Court has already held that the Competent Authority is not a Court, by no




                                                                                 
     stretch of imagination it can be said that the order passed by the

     Competent Authority is either an order or a decree within meaning ofsection 2of the said Code. He, therefore, submitted that the Competent

     Authority had no jurisdiction to transfer the order to this Court for the




                                                        
     purposes of execution. He submitted that for the aforesaid reasons the

     order of Competent Authority is not capable of being executed and the

     applicant will have to file a civil suit for recovery of the amount of




                                           
     damages.5.        The learned counsel for the applicant submitted that the Competent

     Authority had made adjudication on the rights of the parties and,

     therefore, the order passed by the Competent Authority has force of a
      


     decree.      She submitted that the Competent Authority has a right to
   



     adjudicate upon all the disputes between the licensor and the licensee

     and to pass an order of eviction.            She submitted that the Competent





     Authority is a Court and, therefore, the order is capable of being executed.Reliance is placed on decision of this Court in case ofFundacio Privada

     Intervida Vs. Additional Commissioner, Pune Division, Pune and





     another[2005(2)-Mh.L.J.-769. Her submission is that there is no merit in

     the objection raised by the respondent.6.        Broadly following issues arise for consideration viz. :-I.      Whether the Competent Authority under the said Act has a::: Downloaded on - 09/06/2013 15:27:11 :::5jurisdiction to issue a direction directing the licensee to pay the




                                                                                    
                    damages as contemplated by sub- section (2) ofsection 24of

                    the said Act ?II.       Whether the Competent Authority can be considered as a




                                                           
                    Court?III.      Whether final order of eviction and payment of damages passed




                                            
                    by the Competent Authority can be termed as an order or a
                             
                    decree which is capable of being executed under the provisions
                            
                    of the said Code?7.Section 24of the said Act reads thus :-"24. Landlord entitled to recover possession of
   



                 premises given on licence on expiry.-(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.::: Downloaded on - 09/06/2013 15:27:11 :::6(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" includes a successor-in-
            interest who becomes the landlord of the premises as a
            result of death of such landlord; but 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."Sub-section (1) ofsection 24confers jurisdiction on the Competent

     Authority to pass an order of eviction against a licensee on being satisfied
                       
     that the license period has expired. Sub-section (2) lays down that a

     licensee who does not vacate the licensed premises on expiry of license
      

     and continues to be in possession thereof till the time the Competent
   



     Authority passes an order of eviction, the licensee shall be liable to pay

     the damages at double the rate of licensee fee or charge of the licensed

     premises fixed under the agreement. Sub-section (2) ofsection 24thus





     makes the licensee liable to pay the damages from the date on which the

     license expires at double the rate of agreed license fee.                When an

     application for eviction is made before the Competent Authority on the





     ground that the period of license has expired either by efflux of time or by

     revocation thereof, the competent authority is required to adjudicate upon

     the question whether the period of license has expired. Before making

     such adjudication, the competent authority has to come to a conclusion

     that the applicant is the licensor and the respondent is the licensee. Sub

     section (2) ofsection 24creates a liability on the part of the licensee and a::: Downloaded on - 09/06/2013 15:27:11 :::7corresponding right in favour of the licensor. The liability follows from the




                                                                            
     fact that the licensee does not vacate the licensed premises on expiry of

     period of license or on revocation of the period of license. Therefore,




                                                    
     once a Competent Authority after adjudication comes to a conclusion that

     the licensee continues to occupy the premises after expiry of license




                                                   
     period or after due revocation of license, the order for payment of

     compensation under subsection 2ofsection 24must follow.                 If the

     submission made by the counsel for the respondent is accepted, it will




                                       
     follow that even after the Competent Authority passes an order of eviction
                       
     on finding that the license has come to an end, the licensor will have to
                      
     proceed against the licensee by filing appropriate proceedings such as a

     suit for recovery of the amount.     As stated earlier, the liability of the

     licensee to pay the damages as provided under subsection 2ofsection
      


     24is a logical consequence of order of eviction being passed under sub-section (1). Therefore, once the Competent Authority passes an order of

     eviction, the order for payment of damages follows , as the said licensor





     becomes liable to pay compensation as provided under sub-section (2) ofsection 24, on the Competent Authority finding that the licensee has not

     vacated the premises after expiry of period of licensee.8.    On this aspect it will be necessary to consider the decision of this

     Court in the case ofFundacio Privada Intervida(supra). This was a case

     where an application was made undersection 24of the said Act by the

     licensor. During pendency of the proceedings, the licensee vacated the

     licensed premises.    A pursis was filed by the licensor acknowledging::: Downloaded on - 09/06/2013 15:27:11 :::8receipt of possession in which the licensor stated that he has right to




                                                                            
     recover the license charges, damages etc.        The Competent Authority

     dropped the proceedings. An application for review of the said order was




                                                    
     made by the licensor.    The said application came to be rejected.               A

     revision application was filed before the revisional authority which ended




                                                   
     in an order of remand to the Competent Authority. The issue which was

     considered by this Court was whether the Competent Authority has

     jurisdiction to pass an order determining the compensation or damages.Paragraphs 20 and 21 ofthe said decisionread thus :-"20. The concept of jurisdiction also needs consideration.
           Jurisdiction means authority to decide. Whenever a judicial
           Tribunal is required to inquire into a question of law or fact,
           for the purpose of giving decisions on it. The question
           whether the Tribunal has jurisdiction depends upon the
      

           section to which it owes its birth. The Tribunal empowered
           to determine claim under a particular legislation has the
   



           jurisdiction to determine all questions of law and fact
           relating to that claim subject to the provisions of the Act.
           Thus, a Tribunal like the one in this case, is empowered to
           determine claim for compensation for loss of office has a
           jurisdiction to determine all questions of law and fact





           relating to the measure of compensation. It does not
           exceed its jurisdiction by determining any such questions.Section 24of the said Act, which lays, "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 license; and on the failure
           of the licensee to so deliver 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." "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::: Downloaded on - 09/06/2013 15:27:11 :::9at double the rate of the licence fee or charge of the
           premises fixed under the agreement of licence."21.     The dissection of the above section makes it clear
           that any licensee, who does not deliver possession of the




                                                   
           premises to the landlord on the expiry of the period of
           license and continues to be in possession of the licensed
           premises till he is dispossessed by the Competent Authority
           is liable to pay damages at double the rate of the license
           fee or charge of the premises fixed under the Agreement of




                                                  
           Licence.Section 40deals with the appointment of the
           Competent Authority for the purpose of exercising powers
           conferred, and for performing duties imposed, on him under
           the Act. If that be so the conjoint reading ofsections 24and40and the scheme of the said Act would make it




                                      
           absolutely clear that the Competent Authority is not
           only entitled to recover possession of the premises or
                       
           dispossess the licensee but also has power to award
           compensation as contemplated undersection 24(2)of
           the said Act. Thus, the power to determine an award
                      
           and/or compensation and/or damages and/or monetary
           part of the liability is not only incidental to the power to
           evict but a specific duty coupled with power, to
           determine this liability, is bestowed on the Competent
           Authority. The Competent Authority vide its order dated
      

           26th February, 2002 could not have dropped the
           proceedings without determining compensation or damages
   



           undersection 24(2)of the said Act. Merely because
           possession was delivered by the license that by itself was
           not sufficient to take away jurisdiction of the Competent
           Authority to decide claim for damages. In my opinion, the
           view of the Competent Authority was based on mitaken





           reading ofsection 42. Even if possession is delivered by
           the licensor before initiation of the eviction
           proceedings till the Competent Authority will have
           jurisdiction to entertain and determine claim undersection 24(2)of the said Act. In this view of the matter,
           the petition has no substance. The view taken in the





           impugned order by the revisional authority is in consonance
           with the provisions of the said Act."(Emphasis added)9.    Therefore, this Court upheld the power and jurisdiction of the

     Competent Authority to pass an order of awarding the compensation as

     contemplated under sub- section (2) ofsection 24of the said Act. In fact,::: Downloaded on - 09/06/2013 15:27:11 :::10this Court went to the extent of holding that in a given case where the




                                                                            
     licensee hands over possession of the licensed premises after expiry of

     the period of license, the competent authority has a jurisdiction to pass an




                                                    
     order under sub-section 2ofsection 24of the said Act.                   In the

     circumstances, the first question will have to be answered in favour of the




                                                   
     applicant by holding that the competent authority has a jurisdiction to pass

     an order directing the licensee to pay the damages under sub section (2)

     ofsection 24of the said Act.10.
                        
            The next two questions formulated above will have to be
                       
     considered now together. Before dealing with the submissions, what is

     held by this Court in paragraph 19 of the decision in the case ofFundacio

     Privada Intervida(supra) will have to be noted which reads thus :-"19. The shortage of housing during the Second World
            War resulted in the power of the landlords to evict tenants
            and their freedom to fix rent for their premises. Since the
            shortage has been persisting, the control is still continuing





            and various statutes have been enacted by the States in
            India.The Bombay Rents, Hotel and Lodging House Rates
            Control Act, 1947, as amended by theMaharashtra Rent
            Control Act, 1999is one of such example. The statute
            empowers the State Government to appoint Courts and/or
            Competent Authority to decide disputes, such as fixation of





            standard rent and eviction of tenants. Before making any
            order that prejudicially affects any person, the authority
            under the said Act is required to give that person
            reasonable opportunity of being heard. In or before him, he
            has to follow as far as may be, the practice and procedure
            of a Court including the recording of evidence which means
            as far as possible the provisionsof the Code of Civil
            Procedureare required to be followed. He is empowered to
            award such costs to any party as he considers reasonable.
            He has the powers of Civil Court underthe Code of Civil
            Procedurewhen trying an application in respect of
            summoning and enforcing the attendance of any person::: Downloaded on - 09/06/2013 15:27:11 :::11and examining him on oath, requiring discovery and
           production of documents, etc. The orders passed under




                                                                          
           the said Act are executable, if passed by the Civil Court
           as a decree, and if passed by the Competent Authority,
           then that authority itself has been given the power to




                                                  
           execute even by using such force as may be necessary
           to comply with the order of eviction." (Emphasis added)


     The conclusion of this Court was that the orders passed by the Competent




                                                 
     Authority are executable as if passed by a Civil Court. The argument of

     the learned counsel for the respondent was that the only power conferred




                                      
     undersection 24of the said Act on the Competent Authority is to pass an
                       
     order of eviction and there is no power vested to pass an order for

     payment of damages. What is held by this Court in the aforesaid decision
                      
     is that an order passed by the competent authority is executable as if it

     was a decree passed by the Civil Court. Thus, there is a pronouncement
      

     of law by this Court that the orders of the competent authority are
   



     executable.11.   Before proceeding to consider the decision in the case ofPrakash





     S. Jain(supra), certain decisions of this Court require attention of this

     Court.In the case ofMohammad Salam Anamul Haque Vs. S.A.Azmi

     and others[2001(1)-Mh.L.J.-249, the issue which arose for consideration





     of this Court was whether the orders passed by the School Tribunal

     established under theMaharashtra Employees of Private Schools

     (Conditions of Service) Regulation Act, 1977are executable. This Court

     examined the scheme of the said Act of 1977. Undersection 9of the said

     Act of 1977, a remedy of an appeal to the School Tribunal is provided to

     an employee of a private school who has been dismissed or removed::: Downloaded on - 09/06/2013 15:27:11 :::12from the employment.Section 10thereof lays down that for the purposes




                                                                            
     of admission, hearing and disposal of appeals, the Tribunal shall have the

     same powers as are vested in an Appellate Court under the said Code.The learned Judge of this Court also dealt withsection 12of the said Act

     of 1977 which lays down that the decision of the Tribunal shall be final




                                                   
     and no suit, appeal or other legal proceeding shall lie in any Court in

     respect of the matters decided by the Tribunal. This Court dealt withsection 13of the said Act of 1977 which is a penal provision for penalizing




                                       
     a person who fails to comply with the orders passed by the School
                       
     Tribunal. This Court consideredsection 10of the said Act of 1977 which
                      
     conferred limited powers of the Appellate Court under the said Code on

     the School Tribunal. After considering the law on the aspect, the learned

     Single Judge of this Court recorded following conclusions :-(i)     When the Legislature expressly confers power, grant of that

     statutory power carries with    by necessary implication the authority to





     make such grant effective;(ii)    Therefore, the Tribunal constituted under the said Act has all





     powers necessary to enforce its order;(iii)   An order made by the School Tribunal is an order within the

     meaning of the said Code;(iv)    a person who desires to execute an order of the School Tribunal::: Downloaded on - 09/06/2013 15:27:11 :::13has to approach the Tribunal for execution and then it is the duty of the




                                                                            
     Tribunal to either execute the order itself or if it is found necessary, to

     transfer it for execution to Civil Court in accordance with the provisions of




                                                    
     the said Code.12.   The same issue was considered by a Full Bench of this Court in the

     case ofSt.Ulai High School and another Vs. Devendraprasad

     Jagannath Singh and another[2007(1)-Mh.L.J.-597. The Full Bench




                                       
     had an occasion to consider the scope of powers conferred on School
                       
     Tribunal under the said Act of 1977.This Court considered the decision of
                      
     learned Single Judge in the case ofMohammad Salam Anamul Haque(supra). Paragraph 12 of the decision of the Full Bench specifically deals

     with the powers to enforce the orders of the School Tribunal.After
      


     considering the law on the aspect, the Full Bench approved the decision
   



     in the case ofMohammad(supra) holding that the order passed by the

     Tribunal would satisfy the description of that expression insection 2(14)of





     the said Code.The Full Bench quoted following portion of the decision in

     the case ofMohammed(supra) with approval. What is approved by the

     Full Bench inthe said decisionreads thus:-"Therefore, when the School Tribunal makes an order for
           reinstatement and for payment of back wages, the
           appellant in whose favour such an order is made can
           definitely approach the School Tribunal, which made the
           order for execution of that order in the same manner in
           which the decree under the provisions of the Civil
           Procedure Code is to be executed. In such situation either
           the tribunal may itself execute the decree or it may transfer
           the decree for execution to another Court in accordance
           with the provisions contained in the Civil Procedure Code.::: Downloaded on - 09/06/2013 15:27:11 :::14It is thus clear to my mind that an order made by the School
           Tribunal is an order which is executable under the




                                                                            
           provisions of the Civil Procedure Code."Thus, the lawlaid down bythe Full Bench of this Court is that the School

     Tribunal which possesses certain powers under section 107 of the said

     Code can pass an order which can be termed as an order within meaning




                                                   
     of subsection 2ofsection 14of the said Code.13.   Now, turning back to the provisions of the said Act, Chapter-VIII
                        
     contains the procedure which applies tosection 24of the said Act. Under

     sub- section (2) ofsection 40it is provided that a person can be appointed
                       
     as a Competent Authority who has held the office which is not lower in

     rank than that of a Deputy Collector or who is holding or has held the post
      

     of a Civil Judge, Junior Division or who has been an advocate for not less
   



     than five years.14.   Undersection 42of the said Act it is provided that an application





     undersection 24is required to be signed and verified in the manner

     provided under Order VI of the said Code as if it were a plaint.Section 43lays down the actual procedure. Sub- sections (4) and (5) ofsection 43are relevant which read thus :-"43.   Special procedure for disposal of applications.-(1)    ...    ...    ...

           (2)    ...    ...    ...

           (3)    ...    ...    ...::: Downloaded on - 09/06/2013 15:27:11 :::15(4)    (a)    The tenant or licensee on whom the summonsis duly served in the ordinary or by registered post in the
           mannerlaid down insub- section (3) shall not contest the
           prayer for eviction from the premises, unless within thirty




                                                     
           days of the service of summons on him as aforesaid, he
           files an affidavit stating grounds on which he seeks to
           contest the application for eviction and obtains leave from
           the Competent Authority as hereinafter provided, and in
           default of his appearance in pursuance of the summons or




                                                    
           his obtaining such leave, the Statement made by the
           landlord in the application for eviction shall be deemed to
           be admitted by the tenant or the licensee, as the case may
           be, and the applicant shall be entitled to an order for
           eviction on the ground aforesaid.(b)    The Competent Authority shall give to the tenant or
                       
           licensee leave to contest the application if the affidavit filed
           by the tenant or licensee discloses such facts as would
           disentitle the landlord from obtaining an order for the
                      
           recovery of possession of the premises on the ground
           specified insection 22or 23 or 24.(c)    Where leave is granted to the tenant or licensee to
           contest the application, the Competent Authority shall
      

           commence the hearing of the application as early as
           practicable and shall, as far as possible, proceed with the
   



           hearing from day to day, and decide the same, as far as
           may be, within six months of the order granting of such
           leave to contest the application.(5)    The Competent Authority shall, while holding an





           inquiry in a proceeding to which this chapter applies, follow
           the practice and procedure of a Court of Small Causes,
           including the recording of evidence."What is important is sub- section (5) which provides that the Competent





     Authority shall, while holding an inquiry in a proceeding undersection 24,

     follow the practice and procedure of a Court of Small Causes including

     recording of evidence. Thus, the proceeding has to be initiated by an

     application which is required to be signed and verified as if it is a plaint

     and while holding an inquiry, a procedure which is followed by the Court of

     Small Causes while trying a suit has to be followed.             Thus, the law::: Downloaded on - 09/06/2013 15:27:11 :::16contemplates trial of the application undersection 24as if it is a suit tried




                                                                              
     by a Court of Small Causes. Though there is no appeal provided against

     an order of recovery of possession, undersection 44a revision




                                                     
     application is provided. There are other sections forming part of the said

     Chapter which provide that the competent authority shall be deemed to be




                                                    
     a Civil Court for the purposes ofsections 345and346of the              Code of

     Criminal Procedure, 1973.15.    There are two submissions made by the learned counsel for the
                        
     respondent. The first submission is based on the decision of the Apex
                       
     Court in the case ofPrakash Jain(supra). The second submission is

     based on an order dated 23rd October 2008 passed by this Court in

     Notice of Motion No.193 of 2006 in Notice No.N/255/2006. The said
      


     Notice was taken out      by   the   applicant invokingsection 9(2)of the
   



     Presidency Towns Insolvency Act, 1909 (hereinafter referred to as "the

     said Act of 1909") on the ground that the order of the Competent Authority





     is a decree within the meaning ofsection 9(2)of the said Act of 1909.16.    It will be necessary to consider the decision of the Apex Court in





     the case ofPrakash S. Jain(supra).           The issue which arose for

     consideration of the Apex Court was whether the Competent Authority has

     power to condone the delay in applying for leave to defend contemplated

     by subsection 4(A)ofsection 43of the said Act. What was considered by

     the Apex Court was a question whether the Competent Authority was a

     Court for the purposes of applicability ofsection 5of Limitation Act, 1963.::: Downloaded on - 09/06/2013 15:27:11 :::17No other issues such as nature of the order passed by the Competent




                                                                           
     Authority and whether an order of the Competent Authority is executable

     arose before the Apex Court. Heavy reliance has been placed by the




                                                   
     learned counsel for the respondent on what is held in paragraph 12 ofthe

     said decisionwhich read thus :-"12. The provisions of Chapter VIII stand apart, distinctly
           and divorced from the rest of the Act except to the extent
           indicated therein itself and for that matter has been given




                                       
           overriding effect over any other provisions in the very Act or
           any other law for the time being in force, though for
                       
           enforcement of other remedies or even similar remedies
           under the provisions other than Chapter VIII, altogether
           different procedure has been provided for.               It is
                      
           unnecessary to once over again refer to the special
           procedure provided for in Chapter VIII, but the various
           provisions under Chapter VIII unmistakably indicate that
           the competent authority constituted thereunder is not
           `Court' and the mere fact that such authority is deemed to
      

           be Court only for limited and specific purposes, cannot
           make it a Court for all or any other purpose and at any rate
   



           for the purpose of either making the provisions of theLimitation Act, 1963attracted to proceedings before such
           Competent Authority or clothe such authority with any
           power to be exercised under theLimitation Act. It is by now
           well settled by innumerable judgements of various Courts





           including this Court, that when a statute enacts that
           anything shall be deemed to be some other thing the only
           meaning possible is that whereas that the said thing is not
           in reality that something, the legislative enactment requires
           it to be treated as if it is so. Similarly, though full effect
           must be given to the legal fiction, it should not be extended





           beyond the purpose for which the fiction has been created
           and all the more when the deeming clause itself confines
           as in the present case, the creation of fiction for only a
           limited purpose as indicated therein. Consequently, under
           the very scheme of provisions enacted inChapter VIII of
           the Actand the avowed legislative purpose obviously made
           known patently by those very provisions, the Competent
           Authority can by no means be said to be Court for any and
           every purpose and that too for availing of or exercising
           powers under theLimitation Act, 1963."::: Downloaded on - 09/06/2013 15:27:11 :::18In earlier part of paragraph 12, the Apex Court has observed that mere




                                                                            
     fact that such authority is deemed to be a Court only for a limited and

     specific purpose cannot make it a Court for all or any other purposes. In




                                                    
     the last part of paragraph 12 the Apex Court observed that the Competent

     Authority can by no means be said to be a Court for any or every purpose




                                                   
     and that too for availing of exercising the powers under theLimitation Act,

     1963. It must be borne in mind that under the said Act of 1999, a special

     procedure has been created for evicting a licensee. An agreement for




                                       
     leave and license relating to a license granted for residential use has been
                          
     made compulsorily registrable under section 55(1) of the said Act. Even
                         
     under theBombay Rents, Hotel and Lodging House Rates Control Act,

     1947, in the year 1987, by an amendment,section 13(A)(2)was

     introduced which was pari materia withsection 24of the said Act. The
      


     Legislature had taken note of scarcity of accommodation in the
   



     metropolitan as well as in the bigger cities in the State of Maharashtra.The intention for providing a speedy remedy of acquiring possession of





     licensed premises was to encourage the landlords to give the premises on

     leave and license.17.   As far as decision of the Apex Court in the case ofPrakash S. Jain(supra) is concerned, the question which was examined by the Apex Court

     was whether a Competent Authority is a Civil Court for applicability ofsection 5of the said Act of 1963. The issue whether an order passed by

     the Competent Authority is executable or not did not arise for

     consideration of the Apex Court. The learned counsel for the respondent::: Downloaded on - 09/06/2013 15:27:11 :::19contends that the ratio of the decision of the Apex Court is that for no




                                                                               
     purpose except those expressly specified in Chapter-VIII, The Competent

     Authority is a Civil Court. Therefore, it will be necessary to ascertain as to




                                                       
     what is the ratio ofthe said decision. The legal position as regards law of

     precedents is well settled.For ready reference , a decision of the Apex




                                                      
     Court in the case ofState of Andhra Pradesh Vs. M.Radha Krishna

     Murthy[(2009)5-SCC-117] will have to be considered. Paragraphs 17

     and 18 ofthe said decisionare relevant which read thus :-17."15. ... Courts should not place reliance on decisions
            without discussing as to how the factual situation fits in with
            the fact situation of the decision on which reliance is placed.Observations of courts are neither to be read as Euclid's
            theorems nor as provisions of the statute and that too
            taken out of their context. These observations must be
            read in the context in which they appear to have been
      

            stated. Judgments of courts are not to be construed as
            statutes. To interpret words, phrases and provisions of a
   



            statute, it may become necessary for Judges to embark into
            lengthy discussions but the discussion is meant to explain
            and not to define. Judges interpret statutes, they do not inter-
            pret judgments. They interpret words of statutes; their words
            are not to be interpreted as statutes. In London Graving





            Dock Co. Ltd. v. Horton (AC at p. 761), Lord Mac Dermot ob-
            served:'The matter cannot, of course, be settled
                   merely by treating the ipsissima verba of





                   Willes, J., as though they were part of an Act
                   of Parliament and applying the rules of inter-
                   pretation appropriate thereto. This is not to
                   detract from the great weight to be given to
                   the language actually used by that most dis-
                   tinguished Judge....'16.     In Home Office v. Dorset Yacht Co. Ltd. Lord Reid
            said (AC at p. 1027 A-B) 'Lord Atkin's speech ... is not to be
            treated as if it were a statutory definition. It will require quali-
            fication in new circumstances.' Megarry, J. in Shepherd::: Downloaded on - 09/06/2013 15:27:11 :::20Homes Ltd. v. Sandham (No. 2) observed: (AC at p. 1069
           H) '... One must not, of course, construe even a reserved




                                                                              
           judgment of even Russell, L.J. as if it were an Act of Parlia-ment....' And, in British Railways Board v. Herrington Lord
           Morris said: (AC p. 902 D)




                                                      
                  'There is always peril in treating the words of a
                  speech or judgment as though they are words
                  in a legislative enactment, and it is to be re-membered that judicial utterances made in the
                  setting of the facts of a particular case.'17.     Circumstantial flexibility, one additional or different fact
           may make a world of difference between conclusions in two




                                        
           cases. Disposal of cases by blindly placing reliance on a de-
           cision is not proper.18.    The following words of Lord Denning in the matter of
           applying precedents have become locus classicus:'Each case depends on its own facts and a
                  close similarity between one case and an-other is not enough because even a single
                  significant detail may alter the entire as-pect, in deciding such cases, one should
                  avoid the temptation to decide cases (as
   



                  said by Cordozo) by matching the colour of
                  one case against the colour of another. To
                  decide therefore, on which side of the line a
                  case falls, the broad resemblance to anoth-er case is not at all decisive.'

                                        *        *     *

           Precedent should be followed only so far as it marks the path





           of justice, but you must cut the dead wood and trim off the
           side branches else you will find yourself lost in thickets and
           branches. My plea is to keep the path to justice clear of ob-
           structions which could impede it."  (Emphasis added)


     Thus, what has been held by the Apex Court is that the observations of

     the Court are neither to be read as Euclid's theorem nor as provisions of

     the statute and that too taken out of their context. As stated earlier, the::: Downloaded on - 09/06/2013 15:27:11 :::21Apex Court in the case ofPrakash H. Jain(supra) was never called upon




                                                                              
     to decide the issues as regards nature of the order passed by the

     Competent Authority and whether the order of the Competent Authority




                                                     
     will fall within four corners ofsection 2(14)of the said Code. The ratio ofthe said decisionis that the Competent Authority is not a Court insofar as




                                                    
     the applicability of provision ofsection 5of the Limitation Act, 1963 to sub-section 4A of section 43 is concerned.         Therefore,the said decisioncannot be read as laying down ratio that the order of the Competent




                                        
     Authority passed undersection 24is not an order within the meaning of
                        
     the said Code. As stated earlier, the Competent Authority has jurisdiction
                       
     to pass an order granting damages in terms ofsection 24(2).There is no

     reason why the ratio of the decision of this Court in the case ofMohammad(supra) approved in the case ofSt.Ulai(supra) should not
      


     apply to an order of Competent Authority under the said Act.18.    Now turning to the decision of this Court dated 23rd October 2008





     by which the insolvency notice taken out by the applicant was held as not

     maintainable, it must be noted here that the issue before the learned

     Single Judge was whether an order passed by the Competent Authority is





     a decree for the purposes ofsection 9of the Presidency Towns

     Insolvency Act, 1909.In the context of the question whether the order

     becomes a decree or order within the meaning ofsection 9(2)of the said

     Act of 1909, this Court examined the case as is apparent from the fact

     that reliance was placed by this Court on the decision of Apex Court in the

     case ofParamjeet Singh Patheja Vs. ICDS Ltd. [JT-2006-(10)-SC-4]. In::: Downloaded on - 09/06/2013 15:27:11 :::22the said decisionwhat was held by the Apex Court in paragraphs 17 and




                                                                           
     41 read thus :-17. We are of the view that the Presidency Towns In-solvency Act, 1909 is a statute weighed down with the
           grave consequence of "civil death" for a person sought
           to be adjudged an insolvent and therefore the Act has




                                                  
           to be construed strictly.41. Issuance of a notice under theInsolvency Actis fraught
           with serious consequences: it is intended to bring about a
           drastic change in the status of the person against whom a
           notice is issued viz. to declare him an insolvent with all the




                                      
           attendant disabilities. Therefore, firstly, such a notice
           was intended to be issued only after a regularly consti-tuted court, a component of the judicial organ estab-
           lished for the dispensation of justice, has passed a de-
           cree or order for the payment of money. Secondly, a
           notice under theInsolvency Actis not a mode of enfor-cing a debt; enforcement is done by taking steps for
           execution available underCPCfor realising monies.(Emphasis added)
      


     The Apex Court held that while construing the provisions of the said Act of
   



     1909 the Court has to consider the grave consequence of a civil death of

     a person sought to be adjudged as an insolvent. The Apex Court held





     that the provisions of the said Act of 1909 are, therefore, required to be

     construed strictly. The Apex Court was examining the question whether

     an award of an arbitrator was a decree or an order within the meaning ofsection 9(2)of the said Act of 1909. Thus, while passing the order dated

     23rd October 2008 what is held by this Court is that the order of the

     Competent Authority is not a decree for the purposes ofsection 9of the

     said Act of 1909 as the provisions of the said statute call for strict

     interpretation. Therefore, the ratio ofthe said decisionis that the order

     was not covered bysection 9(2)of the said Act of 1909. Therefore, even::: Downloaded on - 09/06/2013 15:27:11 :::23the said decisionwill not help the respondent.19.   At this juncture a useful reference will have to be made to the




                                                       
     decision of the Apex Court in the case ofBrijnandan Sinha Vs. Jyoti

     Narain   (AIR-1956-SC-66).        The Apex Court considered the essential




                                                      
     ingredients necessary to constitute a Court. Paragraph 18 of the decision

     of the Apex Court reads thus :-"18. It is clear, therefore, that in order to constitute a
                       
           Court in the strict sense of the term, an essential
           condition is that the Court should have, apart from
           having some of the trappings of a judicial tribunal,
                      
           power to give a decision or a definitive judgement
           which has finality and authoritativeness which are the
           essential tests of a judicial pronouncement."(Emphasis added)20.   Now turning back to the provisions of the said Act, the Competent

     Authority is conferred with a jurisdiction to decide whether the license has

     expired. As pointed out earlier, for that purpose the proceedings are





     required to be commenced by an application which is required to be

     signed and verified as a plaint. The procedure which is followed by the

     Court of Small Causes trying a suit has to be followed while deciding an





     application undersection 24. Section 47 of the said Act reads thus :-"47. Bar of jurisdiction.- Save as otherwise expressly
           provided in this Act, no Civil Court shall have jurisdiction in
           respect of any matter which the Competent Authority or the
           State Government or an officer authorised by it is
           empowered by or under this Act, to decide, and no
           injunction shall be granted by any Court or other authority
           in respect of any action taken or to be taken in pursuance::: Downloaded on - 09/06/2013 15:27:11 :::24of any power so conferred on the Competent Authority or
           the State Government or such Officer."21.   Section 47 shows that exclusive jurisdiction has been conferred on

     the competent authority to adjudicate upon the claim of a licensor to

     recover possession of the licensed premises on expiry of period of license




                                                   
     either by efflux of time or by revocation thereof. Therefore, insofar as

     jurisdiction of the Competent Authority to pass final order of eviction and




                                       
     payment of compensation is concerned, the Competent Authority satisfies
                       
     the testslaid down byApex Court in the case ofBrijnandan Sinha(supra).In the circumstances the only conclusion which can be drawn is that the
                      
     final order passed by the competent authority under sub-section (1) read

     with sub-section (2) ofsection 24is an order within the meaning ofsection
      

     2(14)of the said Code. By virtue of section 36 of the said Code, the said
   



     order can be executed as if it is a decree. Considering the lawlaid down

     bythe Full Bench of this Court in the case ofSt. Ulai(supra), the

     Competent Authority can entertain an application for execution of the





     order in the same manner in which a decree under the provisions of the

     said Code is to be executed. The competent authority may itself execute

     the order or may transfer it for execution to a competent Civil Court in





     accordance with section 39 of the said Code.22. Thus, the final conclusion is that the objection raised to the

     executability of the order of Competent Authority will have to be rejected

     and notice under Rule 22 of Order XXI of the said Code will have to be

     made absolute. Accordingly, Notice No.1099 of 2009 is made absolute.::: Downloaded on - 09/06/2013 15:27:11 :::2523.   At this stage learned counsel for the respondent prays for stay of

     the order. The order cannot be stayed, however, it is directed that the




                                                    
     execution application will remain stayed till 1st March 2010.(A.S.OKA, J.)::: Downloaded on - 09/06/2013 15:27:11 :::