M/S Nareshbhai Mohanlal vs Bank Of Baroda

Gujarat High Court

M/S Nareshbhai Mohanlal vs Bank Of Baroda on 2 September, 2025

                                                                                                           NEUTRAL CITATION




                            C/SCA/11282/2015                              JUDGMENT DATED: 02/09/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 11282 of 2015


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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                                    Approved for Reporting               Yes            No
                                                                          Yes
                       ==========================================================
                                                M/S NARESHBHAI MOHANLAL
                                                         Versus
                                                 BANK OF BARODA & ORS.
                       ==========================================================
                       Appearance:
                       MR.D K.PUJ(3836) for the Petitioner(s) No. 1
                       MR PRANAV G DESAI(290) for the Respondent(s) No. 1,2
                       NOTICE SERVED BY DS for the Respondent(s) No. 3
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                     Date : 02/09/2025

                                                    ORAL JUDGMENT

1. At the outset, learned advocate Mr. D.K. Puj for the petitioner seeks permission to delete respondent No.3 from the array of the parties from this matter.

2. Permission as sought for, is granted. Respondent No.3 is hereby deleted from the array of the parties from this matter.

NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined

3. Rule returnable forthwith. Learned advocate Mr. Pranav G. Desai waives service of notice of rule on behalf of respondents No. 1 & 2. With the consent of the learned advocates for the parties, matter is taken up for hearing.

4. The present writ application is filed under Article 226/227 of the Constitution of India seeking following relief:-

"(A) Issue a or any other writ of certiorari appropriate writ, order and/or directions, quashing and setting aside the impugned orders dated 27.6.2015 passed by the Ld. Addl. Sessions Judge, City Sessions Court, Ahmedabad in Regular Civil Appeal No. 14 of 2015 as well as the impugned order dated 30.3.2015 passed by the Estate Officer, Bank of Boroda, Gujarat. This Hon'ble Court further pleased to direct the Respondent Nos. 1 and 2 to hand over possession of the premises in question to the Petitioner which was wrongly taken on 1.7.2015 from the Petitioner in absence of the Petitioner.

(B) This Hon'ble Court may be pleased to stay the operation, implementation and execution of the two impugned orders dated 27.6.2015 and 30.3.2015 and further be pleased to stay the Respondent Nos. 1 and 2 from further transferring or using the premises in question during the pendency and final disposal of the present petition.

(C) Ad interim relief in terms of Para 9 (B) may kindly be granted.

(D) Your Lordships may be pleased to pass such other and/or further orders as may be deemed fit, just and proper in the interest of justice."

NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined Submission of the Petitioner-Tenant

5. Learned advocate Mr. D.K. Puj for the petitioner would submit that the petitioner herein was sitting tenant when the respondent-bank who got title of rented premises in the year 1965. Learned advocate Mr. Puj would emphasised on the lease deed executed in favour of respondent-bank on 27.12.1965 by erstwhile landlord for 999 years, wherein, there is clear reference about the sitting tenants and name of present petitioner is also reflected in the third schedules list which is produced along with present writ application (page-99- Z/3).

5.1 Learned advocate Mr. Puj would submit that once it has remained undisputed fact that petitioner was sitting tenant of rented premises in question when respondent-bank took over its possession, as per decision of the Hon'ble Apex Court in the case of Suhash H Pophale Vs. Oriental Insurance Company Ltd. and its Estate Officer reported in (2014) 4 SCC 657, the respondent-bank could not have initiated any action - proceeding under Public Premises (Eviction of Unauthorized Occupants ) Act, 1971 (hereinafter referred to as the "Act, 1971"). According to submission of learned advocate for the petitioner, the issue germane in the Page 3 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined present writ application is squarely covered by the decision of the Hon'ble Apex Court in the case of Suhash H Pophale (supra).

5.2 Learned advocate Mr. Puj would further submit that the entire initiation of process by respondents under the Act, 1971 i.e. issuance of show cause notice culminated into the impugned order of eviction passed by the Estate Officer, which was later on confirmed by the appellate Court concerned, would be without jurisdiction, requires to be quashed and set aside.

5.3 Lastly, learned advocate Mr. Puj would submit that after passing of the impugned order by the appellate Court, as there is no protection available with the petitioner, the respondent-bank has taken over the possession of the rented premises in question and in that view of the matter, if this Court entertains the present writ application, the respondent-bank be directed to reinstate the petitioner into premises in question.

5.4 So, learned advocate Mr. Puj would request this Court to interfere with the impugned orders passed by the Estate Officer as well as the appellate Court concerned and allow the present writ application.

NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined Submission of the Respondents-Bank

6. Per contra, learned advocate Mr. Pranav Desai, appearing for the respondents-bank would submit that the petitioner has failed to establish the vital fact of being a sitting tenant when the premises were owned by the respondent-bank. He would further contend that the appellate Court, after thread-bare examination of all the evidence placed on record, arrived at a definite finding that the petitioner herein was not a tenant but an illegal occupant. It is submitted that such findings of fact so recorded by the appellate Court should not be interfered by this Court in its limited jurisdiction under Article 226/227 of the Constitution of India.

6.1 Learned advocate Mr. Desai would further submit that when the Estate Officer has issued notice upon the petitioner, then it came on record that premises in question was closed and as such, petitioner left premises having not occupied it, thereby, no protection can be given to such petitioner. It is further submitted that the petitioner had never paid rent to the respondent-bank in the past and, even upon demand, he defaulted in making such payment.

NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined 6.2 Learned advocate Mr. Desai would further submit that provisions of Act, 1971 would be applicable to the facts of present case inas much as its not in dispute that respondent bank is government company and rented premises leased out to bank than such rented premises would be considered as 'public premises' as defined under Act, 1971. It is submitted that the proceeding taken out by Estate Officer of respondent bank was within jurisdiction and as such petition is misconceived requires to be rejected.

6.3 So, making the above submission, learned advocate Mr. Desai would request this Court not to entertain the present writ application at the instance of the petitioner who was defaulter and not occupier of premises in question.

Points for determination.

The short question which falls for my consideration as under:-

(i) Whether in the facts and circumstances of the case, the petitioner was sitting tenant when the premises in question leased out to the respondent- bank by erstwhile owner -

original landlord? If yes, whether issue germen in the matter covered by the decision of the Hon'ble Apex Court in the case Page 6 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined of Suhash H Pophale (supra)?.

(ii) Whether the initiation of proceeding by the respondent- bank under the Act, 1971 was without jurisdiction as claimed?

(iii) if all above issues answered in favour of petitioner, what relief can be granted to petitioner?

Analysis

7. The facts which are narrated hereinabove not in dispute. Inasmuch as, the lease agreement executed by the erstwhile owner - landlord in favour of the respondent-bank on 27.12.1965 for period of 999 years, wherein, it was clearly mentioned that they were sitting tenants in the premises lease out to the respondent-bank. The name of the petitioner is also reflected at Serial No. 12 on 3 rd schedule referred in the lease deed itself (page-99 Z/3.) As such, during the course of submissions, learned advocate Mr. Desai would not in a position to dispute this fact, rather learned advocate Mr. Desai would not in a position to countenance that petitioner was not sitting tenant when the premises was owned / lease out to respondent-bank.

8. If this would be the fact, only question needs to be Page 7 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined examined as to whether the provisions of Act, 1971 would be applicable in the present matter and can petitioner be evicted by applying provisions of the Act, 1971?.

9. The issue germane in the present writ application is no longer remain res-integra having squarely covered by the decision of the Hon'ble Apex Court in the case of Suhash H Pophale (supra), wherein it observed and held thus :-

"38. In the present matter we are concerned with the question, whether the respondents could resort to the provisions of the Public Premises Act at a time when the merger of the erstwhile insurance company into the first respondent was not complete. The question is whether taking over of the management of the erstwhile company can confer upon the respondent No. 1 the authority to claim that the premises belong to it to initiate eviction proceedings under the Public Premises Act, to the detriment of an occupant who is claiming protection under a welfare enactment passed by the State Legislature.

43. In the present case, it must also be noted that the appellant is seeking a protection under Section 15A of the Bombay Rent Act, which has a non-obstante clause. The respondent No. 1 is undoubtedly not without a remedy, and it can proceed to evict an unauthorised occupant under the Rent Control Act, if an occasion arises. It can certainly resort thereto until the managerial right fructifies into a right of ownership. However by enforcing a speedier remedy, a welfare provision cannot be rendered nugatory. The provisions of the two enactments will have to be read harmoniously to permit the operation and co- existence of both of them to the extent it can be done. Therefore, the term 'belonging to' as occurring in the definition of Public Premises in Section 2(e) will have to be interpreted meaningfully to imply only the premises owned by or taken on lease by the Government Company at the relevant time. In the facts of this case what we find is that the appellant had the status of a deemed tenant Page 8 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined under the Bombay Rent Act, 1947 prior to the concerned premises 'belonging to a Government Company' and becoming public premises. If at all he had to be evicted, it was necessary to follow the due process of law which would mean the process as available under the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999, and not the one which is provided under the provisions of the Public Premises Act.

59. In Ashoka Marketing (supra), this Court was concerned with the premises of two Nationalised Banks and the Life Insurance Corporation. As far as Life Insurance Corporation is concerned, the life insurance business was nationalised under the Life Insurance Corporation Act, 1956. Therefore, as far as the premises of LIC are concerned, they will come under the ambit of the Public Premises Act from 16.9.1958, i.e the date from which the Act is brought into force. As far as Nationalised Banks are concerned, their nationalization is governed by The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, and therefore, the application of Public Premises Act to the premises of the Nationalised Banks will be from the particular date in the year 1970 or thereafter. For any premises to become public premises, the relevant date will be 16.9.1958 or whichever is the later date on which the concerned premises become the public premises as belonging to or taken on lease by LIC or the Nationalised Banks or the concerned General Insurance Companies like the first respondent. All those persons falling within the definition of a tenant occupying the premises prior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in "unauthorised occupation". Whatever rights such prior tenants, members of their families or heirs of such tenants or deemed tenants or all of those who fall within the definition of a tenant under the Bombay Rent Act have, are continued under the Maharashtra Rent Control Act, 1999. If possession of their premises is required, that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If person concerned has come in occupation subsequent to such date, then of course the Public Premises Act, 1971 will apply.

60. It is true that Section 15 of the Public Premises Act creates a bar of jurisdiction to entertain suits or proceedings in respect of eviction of any person in an unauthorised occupation. However, as Page 9 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined far as the relationship between the respondent No. 1, the other General Insurance Companies, LIC, Nationalised Banks and such other Government Companies or Corporations, on the one hand and their occupants/licencees/tenants on the other hand is concerned, such persons who are in occupation prior to the premises belonging to or taken on lease by such entities, will continue to be governed by the State Rent Control Act for all purposes. The Public Premises Act will apply only to those who come in such occupation after such date. Thus, there is no occasion to have a dual procedure which is ruled out in paragraph 66 of Ashoka Marketing. We must remember that the occupants of these properties were earlier tenants of the erstwhile Insurance Companies which were the private landlords. They have not chosen to be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Public Premises Act.

64. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs etc. under the Bombay Page 10 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain such proceedings.

66. We have not for a moment taken any position different from the propositions in Ashoka Marketing. We are infact in agreement therewith, and we are not accepting the submission of Mr. Nariman, that only contractual tenancies were sought to be covered under that judgment, and not statutory tenancies. Tenancies of both kinds will be covered by that judgment, and they will be covered under the Public Premises Act for the subjects specified therein. The only issue is with effect from which date. That aspect was not canvassed at all before the Constitution Bench, and that is the only aspect which is being clarified by this judgment. We are only clarifying that the application of the Public Premises Act will be only from 16.9.1958, or from such later date when concerned premises become Public Premises on the concerned landlord becoming a Government Company or Public Corporation. When the law laid down by the different Benches of this Court including by the Constitution Benches on retrospectivity is so clear, and so are the provisions of the Public Premises Act, there is no occasion for this Court to take any other view. When this judgment is only clarifying and advancing the proposition laid down in Ashoka Marketing, there is no reason for us to accept the objections raised by Mr. Raval, that the issues raised in this matter should not be decided by this bench but ought to be referred to a larger Bench.

67. In this context we may note that since the issue of retrospective application of the Public Premises Act, to tenancies entered into before 16.9.1958, or before the property in question becoming a public premises, was neither canvassed nor considered by the bench in Ashoka Marketing (supra), the decision does not, in any way, prevent this Bench from clarifying the law regarding the same. This follows from the judgment of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in (2006) 5 SCC 167 wherein it was held that a decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom.

70. For the reasons stated above, we allow this appeal and set-

NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined aside the impugned judgment and order dated 7.6.2010 rendered by the High Court of Bombay in Writ Petition No. 2473 of 1996. The said Writ Petition shall stand allowed, and the judgment and order dated 17.1.1996 passed by the City Civil Court, Mumbai, as well as the eviction order dated 28.5.1993 passed by the respondent No. 2 against the appellant will stand set aside. The proceedings for eviction from premises, and for recovery of rent and damages initiated by the first respondent against the appellant under the Public Premises Act, 1971, are held to be bad in law, and shall therefore stand dismissed. We however, make it clear, that in case the respondents intend to take any steps for that purpose, it will be open to them to resort to the remedy available under the Maharashtra Rent Control Act, 1999, provided they make out a case therefor. The parties will bear their own costs."

(emphasis supplied)

10. The ratio of the aforesaid decision would clearly indicate that if the tenant is a sitting tenant when the premises owned/ lease out to any Government company like respondent-bank herein, eviction of such sitting tenant would not be governed by the Act, 1971. To get eviction of such tenant, the Government - company concerned needs to follow recourse available under Local Rent Act i.e. Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, in the present case.

11. When the initiation of any action - proceeding by the respondent-bank and in a present case, Estate Officer authorized by the respondent-bank is found to be without any jurisdiction, the consequential order passed thereon requires to be held without jurisdiction would be nullity in Page 12 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined eye of law. In other words, in a case of inherent lack of jurisdiction, entire action - proceeding culminated upto eviction of petitioner would be null and void and requires to be interfered by this Court while exercising its power under Article 226/227 of the Constitution of India. Point No. (i) & (ii) answered accordingly.

12. Sofar as the argument canvassed by learned advocate Mr. Desai for the respondents, the premises in question was neither used nor occupied by the petitioner and the petitioner had not even paid regular rent to the respondent- bank, is concerned, this Court can't accept such contention for not to grant relief in favour of petitioner. When, this Court found that initiation of proceeding by respondent- bank by exercising powers under the Act, 1971 was without jurisdiction, other aspect about arrears of rent/non-occupied rented premises etc. pales into insignificant. Nevertheless, such aspect can be agitated by the respondent-bank before the appropriate Rent Court, if so advised, to file any suit for eviction of petitioner.

13. At the same time, the petitioner was under contractual obligation to pay regular rent to the respondent-bank till evicted by respondent-bank. If there is any arrears of rent till possession of rented premises was taken over by respondent-bank from petitioner, the petitioner shall have Page 13 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined to clear such arrears of rent, as petitioner is requesting this Court for its reinstatement in the premises in question.

14. The upshot of aforesaid discussion and reasons, reliefs prayed in the writ application requires to be granted in favour of petitioner thereby respondent-bank is requires to handover back the possession of rented premises in question to the petitioner as initiation of proceeding under Act, 1971 against petitioner is found without any authority of law/jurisdiction. When the proceeding initiated is found bad in law and non-est, all consequential orders passed thereby requires to be quashed. Consequently, respondent-bank needs to restore back the possession of the petitioner of rented premises in question. Point No. (iii) answered accordingly.

Conclusion

15. In light of what is observed and referred hereinabove, according to my view, the impugned order passed by the Estate officer - respondent-bank dated 30.03.2015 confirmed by the appellate Court vide its judgment and order dated 27.06.2015 while dismissing Regular Civil Appeal No. 14 of 2015 are bad in law, non-est thus hereby quashed and set aside by holding that initiation of proceeding by Estate Officer at the instance of respondent-bank under the Page 14 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined Act, 1971 was without any authority and so also without jurisdiction.

16. In view of forgoing, as a sequel and as per Section 144 of CPC, the respondent-bank requires to restore back the possession of petitioner by putting him back into rented premises in question. The respondent-bank is hereby directed to reinstate the petitioner in the rented premises in question within a period of four weeks from the date of receipt of this order. The respondent-bank shall ensure while reinstating the petitioner that it shall reinstate the authorize person of petitioner-firm. The necessary confirmation in this regards be obtained by respondent-bank from the petitioner.

17. On demand if raised by the respondent-bank in regards to any past arrears of rent i.e. prior to taking over the possession of the premises in question, such demand be cleared by the petitioner within one month thereafter, albeit, if any dispute about the same, the petitioner may resolve it with the respondent-bank.

18. It is made clear that, in the event the respondent-bank intends to take any step to evict the petitioner, it shall be open for the respondent-bank to avail itself of the remedy Page 15 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025 NEUTRAL CITATION C/SCA/11282/2015 JUDGMENT DATED: 02/09/2025 undefined available under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 provided bank make out case therefor.

19. With the aforesaid conclusion, the present writ application is hereby allowed to the aforesaid extent. Rule is made absolute. No order as to costs.

Direct service is permitted.

Sd/-

(MAULIK J.SHELAT,J) SALIM/ Page 16 of 16 Uploaded by SALIM(HC01108) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:05:27 IST 2025