D.K. Deshmukh, J.
1. By this Civil Revision Application, filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 25th March, 1996, passed by the Competent Authority (Rent Act), Konkan Division, Bombay, under the provisions of the Bombay Renst, Hotel and Lodging House Rates Control Act, 1947, (for short the "Bombay Rent Act") in Case No. 4 of 1990. By that order, the Competent Authority directed the petitioner to hand over possession of the suit premises i.e. room No. 1, Gulab Tiwari Chawl, Anandgadh Park Site, Vikhroli (West), Bombay to the respondent. Case No. 4 of 1990 was registered because the respondent submitted an application under Section 13(a)(2) of the Bombay Rent Act. He claimed in the said application that he is a owner of the suit premises and that by an agreement dated 1.8.1989, he has created a licence of the room in favour of the petitioner. The licence was for a period of 11 months. According to the petitioner, after expiry of the period of the licence, the petitioner did not vacate the premises and, therefore, the respondent submitted the application under Section 13(a)(2). The application was opposed by the petitioner on several grounds including that she has not consciously signed the agreement of licence and that she signed it under coersion and misrepresentation. The parties thereafter led evidence and the Competent Authority allowed the application.
2. The learned Counsel for the petitioner urged before me that the application filed under Section 13(a)(2) by the respondent is based solely on the written agreement of licence. The Competent Authority has also passed his order on the basis of the agreement. In the submission of the learned Counsel for the petitioner, this agreement of licence on which the application is based and the Competent Authority has passed the order, has not been proved. Further, in the submission of the learned Counsel for the petitioner, the admitted position is that the agreement of leave and licence is in English language. It is further the admitted position that neither the petitioner nor the respondent knows the English language. He invited my attention to a statement on oath made by the respondent before the Competent Authority which reads as under: -
I cannot say about contents of A2 as I do not understand English. I do not know if Respondent knows English.
In the submission of the learned Counsel, if it is an admitted position, that the agreement at A2 is in English and it is further admitted by the respondent that he does not know English, then clearly he was not a witness who could depose about the contents of the documents which he was trying to prove. In the submission of the learned Counsel, the agreement of licence has, itself, not been proved. The second contention that is urged by the learned Counsel for the petitioner is that in order to attract the application under Section 13(a)(2) of the Act, the transaction between the parties should be a valid transaction of licence. In the submission of the learned Counsel, the respondent in his deposition, has clearly stated that he is claiming to be an owner of the suit premises on the basis on the photo patch which has been issued in his favour by the State Government. Thus, in the submission of the learned Counsel for the petitioner, the respondent is claiming rights in relation to the suit premises only on the basis of the photo patch. The learned Counsel for the petitioner while relying on terms Nos. 6 and 7 of the photo patch, urged that these terms do not entitle the respondent to create licence in relation to the suit premises. Therefore, the agreement of licence even if it is assumed to exist between the parties, is contrary to the terms on which possession of the land is granted by the State Government to the petitioner. Therefore, in the submission of the learned Counsel, if the respondent is not entitled to create a licence, he cannot submit an application under Section 13(a)(2) of the Act.
3. The learned Counsel for the respondent submitted that though it is a fact that the respondent does not know English and the agreement of licence is in English, the petitioner in his deposition referred to the terms and conditions on which the licence was created in detail and, therefore, in the submission of the learned Counsel for the respondent, the agreement of licence has been proved by him. In so far as the second point urged by the learned Counsel for the petitioner is concerned, the learned Counsel for the respondent submitted that apart from the photo patch, the petitioner claims to be the owner of the premises and a suit in regard to that claim between the respondent and the State Government is pending in the Court of Competent Authority. Therefore, in the submission of the learned Counsel for the respondent, the licence created in favour of the petitioner is valid and, therefore, application under Section 13(a)(2) was competent.
4. In so far as the contention urged on behalf of the petitioner is concerned, it is to be seen that the application of the respondent made under Section 13(a)(2) of the Act is completely based on the agreement of licence. Perusal of the order on the Competent Authority shows that the Competent Authority has not taken into consideration any other evidence than the agreement of licence in view of the explanation appearing below Section 13(a)(2) which lays down that an agreement of licence in writing shall be conclusive evidence of the fact stated therein. Therefore, it was necessary for the petitioner to prove the existence of agreement in writing between the parties. An agreement can be arrived at between two persons agreeing to the terms and conditions on which the arrangement is to be brought into existence. When it is an admitted position that neither the respondent nor the petitioner knows English language and that if the agreement is in English then it cannot be said that the respondent has proved existence of the written agreement between the parties. It is only proof of the existence of the written agreement that the terms would be conclusive proof of the existence of the agreement. For that purpose, proving document itself is necessary. The respondent, who is one of the parties to the agreement, could have proved the agreement by deposition to the contents of the agreement. It is clear from the deposition of the respondent quoted above that he is in no position to depose to the contents of the agreement because he does not know the English language in which the agreement is written. Therefore, in my opinion, the learned Counsel for the petitioner is right in contending that the agreement on which the application filed under Section 13(a)(2) is based, has not been proved by the respondent. It is further to be seen here that the admitted position that the agreement is in English language, neither the petitioner nor the respondent knows English and the respondent has no where stated in his deposition that before the petitioner signed the agreement the contents were explained to her and having understood the contents, she has signed the same. In my opinion, when the agreement is in a language which is not known by either of the parties to the agreement, it is necessary that a statement is made on oath before the Court that the contents of the- document were explained to the parties. In the absence of such a statement, it cannot be said that the agreement has been proved. In so far as the second contention urged on behalf of the petitioner is concerned, it is clear from the deposition of the petitioner that she was claiming right to the occupation of the suit premises on the basis of the photo patch. Conditions Nos. 6 and 7 on which the photo patch has been granted read as under :-
(6) The structure should not be divided and sublet to others.
(7) Only the bona Fide members in the family of patch holder/hut occupier will be allowed to stay in the patch/hut.
Bare perusal of these two conditions shows that the respondent was not competent to create licence in relation to the suit premises in favour of any other person. In fact, it is to be seen that the land vested in the State Government, as stated in the terms and conditions of the photo patch, and that the photo patch has been issued to protect possession of the suit premises of the respondent and his family. The photo pass, in my opinion cannot be passed by the patch-holder to create tenancies or licences in favour of others. That would amount to gross misuse of the concession given by the State Government. As the respondent was not competent to create licence, the licence was invalid and, therefore, the application under Section 13(a)(2) would not have been filed when the agreement of licence itself was not valid. Therefore, in my opinion, the order of the Competent Authority is vitiated on both the counts.
5. In the result, therefore, this Civil Revision Application succeeds and is allowed. Rule made absolute in terms of prayer Clause (a) with no order as to costs.