Friday, 30 January 2015

BY OVERSTAYING A LICENSEE CANNOT CLAIM TENANCY RIGHTS

Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore

http://advocateselvakumar.com/home.html

With the passage of your time, the system of giving properties inactive and license basis in Maharashtra is taking its roots, however still an honest range of the property house owners are apprehensive as a result of their undecided that they might revisit possession of the properties on the end of the term. However, visible of the subsequent judicial say-so, such worry appears unwarranted, provided legal necessities are complied with.

One Shri Mohd. Hussain article of furniture Walla, (Licensor) because the owner of Flat No. 51, in Victoria residences, St. Alexius Road, Bandra, Mumbai, gave his premises inactive and license basis, as per the Agreement dated 25.03.2003, for a amount of twenty-two months to at least one Ms. Parineeta Choudhary on a monthly fee of Rs.18,000. Additionally, an extra agreement was conjointly dead between the parties for payment of charges at Rs.10,000 per month in respect of article of furniture and fixtures within the same premises. The term of the license invalid in january 2005 and therefore the retailer continuing to occupy the same premises even thenceforth and licensor accepted the monthly fee and therefore the further charges. Solely on tenth Dec 2005, he moved a petition before the Competent Authority, who, besides ordering eviction of the retailer, conjointly directed her to pay the damages at Rs. 56,000/- per month from sixteenth Gregorian calendar month 2005 until delivering possession of the accredited premises to the owner.

This call was challenged by manner of revision u/s forty four of the Maharashtra Rent management Act by the retailer however constant was fired and therefore the order of the Competent Authority was upheld.

Aggrieved by this order the retailer filed a legal instrument Petition No.2276 of 2008 before the Hon' ble city state supreme court below Article 227 of the Constitution of Asian country. The matter came up for hearing before Hon'ble adult male. Justice A. M. Khanwilkar on the ninth Sep 2008, when the licensee pleaded that not issuing legal notice to her and continuing to simply accept the monthly fee, was indicative of the actual fact that the retailer has become the tenant in respect of the licenced premises. however this argument wasn't accepted by the Hon'ble state supreme court that ascertained that the actual fact of  acceptance of the monthly compensation by itself wouldn't be comfortable to completely hold that the link of the parties that of licensor and retailer was born-again into one amongst landowner and tenant and therefore the proven fact that retailer instituted the proceedings before the Competent Authority, virtually once eleven months from end of the license amount, would once more not by itself indicate that he has waived his statutory right of eviction of the petitioner from the suit premises as a result of there is legal presumption u/s twenty four of the Act concerning determinateness of the contents of the lease and license agreement. it'd simply indicate that the licensor allowed the retailer to abide the license amount and zilch a lot of and therefore the relationship would still stay of licensor and retailer.

The Hon'ble high court has, therefore, command that the arrangement between the parties was strictly one amongst the leave and license and therefore the relationship created between them on account of the same dealing was that of the licensor and retailer and visible of the legal presumption u/s twenty four of the Act, it would essentially follow that the retailer is obligated to vacate the premises on the end of the license amount in January, 2005.

On the question of payment of damages from sixteenth January 2005, the Hon'ble high court failed to accept as true with the order of the Competent Authority, as upheld within the revision. 

The Hon'ble high court ascertained that the licensor failed to decision upon the retailer to vacate the suit premises nor enlightened her that she would be susceptible to pay damages for continued possession and he filed the eviction proceedings solely sixteenth Dec 2005. Therefore, the licensor would be entitled for the damages from the retailer at double the speed of fee fastened within the Agreement of License solely from sixteenth Dec 2005, once he initiated the proceedings.


As regards the quantum of the damages, again the Hon'ble state supreme court failed to accept as true with the order of the Competent Authority, as upheld in revision and ascertained that the license agreement provided for the monthly retailer fee @ Rs. 18,000/- solely and therefore the further agreement to pay charges @ Rs. 10,000/- in respect of furniture and fixtures provided threin can't be reckoned for purposes of computing damages u/s 24(2) of the said Act. Therefore, the Hon'ble high court command that retailer would be susceptible to pay license fees @ Rs. 18,000/- from 16-12-2005 until delivering the possession to the suit premises.

In another case concerning a flat at Carmichaell Road in Bhagawati Bhavan at Mumbai given inactive and license by the owner Manju Singh to Janki Ammanraj, Hon'ble Mr. Justice Anoop Mohta command in january, 2009 that once the retailer, in spite of end of the leave and license agreement in Gregorian calendar month 2006 and supply of notice failed to deliver possession of the premises to the land-lord and continuing to be in possession of the licenced premises, the retailer ought to pay damages at double the speed of fee with all the arrears until the time the flat is vacated.
Thus, the abide by a retailer within the licenced premises and acceptance of the monthly retailer fee by the licensor wouldn't mean that the link of licensor and retailer has been born-again into that of land lord and tenant and therefore the retailer would be susceptible to pay the damages at double the speed of the fee fastened within the agreement until it's vacated. 


It has been ascertained that during a sensible range of cases leave and license agreements don't seem to be adequately sealed and registered and 2 agreements are drawn one towards the fee for the premises and another towards article of furniture, fixtures and services etc. as a matter of temptation to avoid wasting expenses and taxes. But it must be kept visible  that where a document is required to be necessarily registered (section 55 of the said Act) and if it's not registered, it can't be taken as associate proof and such a state of affairs could produce the matter in the maximum amount because the relationship could also be construed as of land-lord and therefore the tenant and cacophonous  of the agreement might not entitle the licensor to recover the damages at double the speed of the fees fastened in each agreements.

It would, therefore, be best that the leave and license agreement ought to be adequately sealed and registered as per the provisions of law and a notice ought to be served by the licensor to the retailer beforehand before the end of the agreement to vacate the premises and just in case of failure, besides eviction, the retailer would be to blame for the damages at double the speed of monthly compensation fastened within the agreement. 

A land-lord ought to even have the police verification of the retailer and procure noc from the Society before giving the ultimate form to the current arrangement. If of these legal requirements are taken care of, there needn't be any apprehension in mind to relinquish the flats inactive and license basis, if not needed for self-occupation.
  
More,