Bombay Advocates Association And ... vs Prabhakar Madura Puthran And Ors
2017 Latest Caselaw 5732 Bom

Sherla V.


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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION
                        CIVIL REVISION APPLICATION NO.645 OF 2015

            Bombay Advocates Association                                   ... Applicant

                     Vs.

            Prabhakar Mudura Puthran                              ... Respondent


            Mr.P.K. Dhakephlakar, Sr.Advocate with Mr.Suneel                            Mogre,
            Mr.Manoj Mane i/b Chandrakant Chavan for the Applicant

            Mr.Pradeep Thorat i/b Aanchal A. Jain for Respondent

                                   CORAM: Mrs.MRIDULA BHATKAR, J.
                       ORDER RESERVED ON: JULY 27, 2017
                       ORDER DELIVERED ON: AUGUST 8, 2017

            ORDER:

1. In this Civil Revision Application, the judgment and order

dated 31.8.2015 passed by the learned judge of the City Civil

Court, Bombay in S.C. Suit No.3038 of 2012 is challenged. The

applicant is an association of the advocates of Bombay especially

working in the Small Causes Court, Mumbai, having head office at

Small Causes Court, second floor, L.T. Marg, Mumbai. The

respondent is the original plaintiff, who has filed H.C. Suit No.795

of 2012 u/s 6 of the Specific Relief Act that he was forcibly

dispossessed by the members of the defendant-association on

30.9.2011 and, therefore, prayed that the possession of the said

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suit premises i.e., canteen, situated on 3 rd floor of the Annex

building, Small Causes Court, L.T. Marg, Mumbai, is to be handed

over him. The suit was decreed by order dated 31.8.2015 by the

learned Judge of the City Civil Court, Mumbai directing defendant

Nos.1 to 5 to deliver the possession of the suit premises i.e., the

canteen, in favour of the plaintiff within two months from the date of

the passing of the judgment and decree. The said order was

challenged by filing this Civil Revision Application on 13.10.2015.

2. The admitted facts are summarised as follows:

The applicant is an association of the advocates practising in

the Small Causes court and in the year 1985, they allowed the

original plaintiff/respondent to run the canteen on the third floor of

the Annex building on terms and conditions which varied from time

to time. The canteen premises belonged to government coming

under the Public Works Department. The respondent was

providing food at subsidised rate to the members of the bar

association. However, he did not pay the electricity bill and water

charges and therefore, in the year 2002, the Public Works

Department raised a bill of Rs.6,97,530.60 for the same. On

receiving notice from Public Works Department to pay electricity

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bill and water charges and otherwise to vacate the premises, the

applicant Association filed Writ Petition No.2959 of 2002 in the

High court of Bombay challenging the eviction notice issued by the

Public Works Department. By order dated 10.12.2002, the Division

Bench of this Court passed interim order and gave interim stay to

the notice of eviction against the Public Works Department and

directed the applicant - association to deposit Rs.50,000/- towards

the arrears and further directed that thereafter, the Association

from December, 2002, shall deposit rent @ Rs.2775/- p.m. towards

the canteen of the third floor and also fixed the rate of rent amount

towards the canteen of 4th floor but that is not the subject matter of

this petition. It further gave directions to give undertaking that the

Association shall run the canteen on no profit no loss basis and the

accounts pertaining to the canteens are to be maintained and

audited properly. Earlier in the beginning, the respondent/original

plaintiff was paying a monthly compensation of Rs.650/- per month

in the year 1980, which was increased and thereafter, on demand

of the Association, the plaintiff started paying Rs.3,000/- per month

instead of Rs.650/- per month. The said amount was further

increased and the plaintiff was paying Rs.4,500 per month when

the cause of action arose in June, 2011. In June, 2011, the

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amount of Rs.5,50,396/- was yet to be cleared towards electricity

charges and therefore, the Association directed the plaintiff to pay

the said amount and otherwise, they asked him to vacate the

premises which the original plaintiff refused to do so.

3. As per the case of the plaintiff, on 30.9.2001, he put his lock

and left the premises and thereafter putting lock on that lock, the

applicant - Association took forcible possession of the suit

premises wherein all the gazettes belonging to him like gas, mixer,

refrigerator, utensils and other goods purchased by him and owned

by him were lying. Against the possession, the original plaintiff

filed S.C. Suit No.3038 of 2012 (HC Suit No.795 of 2012) u/s 6 of

the Specific Relief Act seeking possession of the suit premises i.e.,

the 3rd floor canteen. The Bar Association i.e., defendant Nos.1 to

5, filed a written statement and submitted that the lawful owners of

the premises is the Public Works Department of the State of

Maharashtra and the learned Chief Judge of the Small Causes

Court are the lawful owners and possession of the suit premises.

It was contended that the juristic possession of the premises is

with the Office of the Court Keeper of the Small Causes Court.

The applicant Association has admitted that the plaintiff was

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allowed to use the suit premises for the purpose of running

canteen facility, however, all allegations of forcible dispossession

are strongly denied by the Bar Association. The learned Judge

framed the issues after considering the pleadings & contentions

and after recording evidence, decreed the suit. The learned Judge

of the City Civil Court, Mumbai, by his judgment and order dated

31.8.2015 directed that defendant Nos.1 to 5 shall deliver

possession of the suit premises i.e., the canteen, 3 rd floor, in the

annexe building of the Small Causes Court, Mumbai in favour of

the plaintiff within two months from the date of the judgment.

4. The learned Senior Counsel for the Applicant has submitted

that the plaintiff was never in possession of the suit premises but

he was given a contract to run the canteen on the third floor. He

did not share the electricity charges and therefore, his services

were discontinued. The learned Counsel has submitted that the

learned Judge has erred in observing the respondent was in

possession of the suit premises and is entitled to restoration of the

possession. The learned Senior Counsel submitted that this

observation is contrary to the law laid down by the apex Court. He

submitted that positive case of the applicant is that though the

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respondent was in possession of the suit premises, it was not in

exclusive possession. The admissions given by the respondent in

his evidence that he was working as a canteen contractor during

the Court time and the keys of the premises were with the Court

Keeper should have been properly appreciated. He further pointed

out that the two exhibits i.e., exhibits 9 and 10 are not disputed by

the applicant but these letters cannot constitute any contract

between the parties as observed by the learned trial Judge. It is

further submitted that in fact, the plaintiff was not ready to share

the electricity charges which was exhorbitant and so, the

Association rightly discontinued his service and at that time, the

respondent/original plaintiff voluntarily handed over the keys to the

Bar Association. He has submitted that the judgment passed by

the learned Judge needs to be set aside. He further submitted that

today, the other person is employed to run the canteen, who is

paying the electricity charges.

5. Learned Counsel for the respondent / original plaintiff has

submitted that the applicant has entered into an agreement. He

has submitted that the premises is owned by Public Works

Department, State of Maharashtra and since last 31 years prior to

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filing of the suit, the plaintiff was serving all the catering items to

the members of the Bar Association. He was put in possession of

the suit premises in the year 1980 on term of payment of Rs.650/-

per month and at the time of his forcible eviction, he was paying

Rs.4,500/- per month. Thus, he was a licencee in the suit

premises. He relied on the two letters i.e., letter dated 12.4.1985

(exhibit 9) and 13.10.1989 (exhibit 10) which were issued by the

applicant/defendant No.1 thereby confirming that the plaintiff was

carrying on business of canteen in the suit premises and the

possession of the suit premises was handed over to the plaintiff.

He categorically denied that the plaintiff was required to pay

electricity charges or water charges or other charges separately in

addition to payment of his monthly charges of Rs.4,500/- per

month. He further submitted that he was serving food to the

members of the applicant/staff at a subsidised rate and gave

uninterrupted service. The applicant made an illegal demand of

Rs.5,54,000/- towards electricity and water charges and when the

plaintiff denied to pay so, he was forcibly dispossessed from the

premises. He submitted that he has given in his evidence

specifically that at 7pm on 30.9.2011, he had locked the suit

premises and was going home. However, the applicants put their

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lock on the suit premises illegally and forcibly broke open the lock

put by the plaintiff. All the furniture, fixtures, refrigerator, food

items, grocery belonged to him. He also lodged a police complaint

with the L.T. Marg police station.

6. In support of these submissions, Mr.Thorat relied on the

Division Bench judgment of this Court in Writ Petition No.2959 of

2002 (Bombay Advocates Association & ors. vs. State of

Maharashtra & Ors.). He submitted that in that case, the Division

Bench has specifically mentioned that in the meanwhile

possession of the canteen situate on 3rd floor, New building at

Dhobhi Talao, Canteen of 4 th floor, Bhaskar building at Bandra and

the Canteen at Dhobhi Talao shall be taken from the petitioner

association subjection to conditions.

7. Heard submissions. Perused the order under challenge,

documents, plaint, written statement and heard the learned

Counsel for both the sides. Read over the evidence of the

witnesses. Admittedly, the suit premises i.e., the canteen, is

owned by the Public Works Department of State of Maharashtra. It

is also a fact that the original plaintiff was allowed to run the

business of canteen in the said premises. He was paying some

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charges/compensation for allowing him to run his business in the

Court premises. That apart, he was providing all food items to the

Members of the Bar Association and the Court staff at subsidised

rates.

8. Mr.Thorat relied on the order of the Division Bench of this

Court in Writ Petition No.2959 of 2002 dated 10.12.2002 to show

that the Association was directed to deposit rent @ Rs.2775/- per

month towards the canteen on 3rd floor building with the PWD. It

was further held that the suit canteen and the other canteens are

run by the Association on 'no profit no loss' basis and the accounts

pertaining to the said canteens are maintained and audited

properly. The operative portion of the said order is thus

reproduced as follows:

"(i) The petitioner Association deposits further sum of Rs.50,000/- in two instalments of Rs.25,000/- each towards arrears of rent, electricity charges and water charges in respect of these three canteens. The first instalment of Rs.25,000/- shall be deposited by 31.01.2003 and the second instalmentff of Rs.25,000/- by 31.03.2003.

(ii) The petitioner Association from the month of December 2002, deposits rent at the rate of Rs.2775/- per month towards canteen on 3 rd Floor, New Building at Dhobi Talao and rent of Rs.5,500/- towards canteen on 4th floor, Bhaskar Building at Bandra. The aforesaid

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rent shall be deposited by the petitioner Association every month with the concerned authorities on or before 15th of each succeeding month.

(iii) The petitioner Association pays/deposits in time the water and electricity charges as per the separate meters already installed.

(iv) The first petitioner Association through its President files an undertaking before this Court within two weeks from today that all the three canteens aforesaid are run by the first petitioner Association on "no profit no loss basis" and accounts pertaining to the said canteens are maintained and audited properly."

9. Thus, the order of the Division Bench in fact does not

support the case of the plaintiffs. The said Writ Petition was

between the Bar association of Small causes Court at Dhobi Talao

and at Bandra and the PWD. By that order, the Division Bench

has protected the possession of the canteen premises with the Bar

Association. However, the Division Bench has imposed a very

important condition on the association to give an undertaking that

they shall run the canteen on no profit no loss basis and the

accounts pertaining to the said canteens are maintained and

audited properly. So, it is binding on the association to maintain the

canteen accounts and get it audited and they should run the

canteen on no profit no loss basis. This clearly shows that the

Division Bench always intended that the respective Bar

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Association shall not part with the possession of the canteen

premises but those associations are required to give service to the

members of the Bar of food items on no profit and no loss basis.

10. Canteens run by the contractors in the Court premises is a

routinely disputed issue, which is always referred to the Principal

District Judges or the Chief Judges by the respective Courts.

Canteen is a necessity in each and every Court. The Court staff

and the members of the Bar including the Judges are required to

work for long hours. Especially the members of the Bar and the

Court staff attend Court much before the actual Court hours and

stay for longer periods on the campus after the Court hours. It is a

necessity especially also for the litigants who come from other

Districts and distant Talukas and villages. In all the Courts, the

contractors are appointed by Bar Associations or by the

Associations of the Court staff to give food service to the litigants,

members of the Bar and the Court staff. The contractor remains

there for years together and then, tries to create his possessory

right in the canteen. Considering the nature of the Court work

where many stakeholders like Bar, Bench, Court staff, litigants are

involved in day to day activities, similar to Canteen, Press room,

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Court clerk room, photocopy machines, writers, etc. are also

essential services. Therefore, some persons are allowed to use

particular space in the Court. These persons in lieu of services run

their business, earn livelihood. However, it cannot be said that

they are in possession of the said earmarked Court premises

exclusively. It is made clear that in the Court premises, no person

can claim possession but it is always a temporary day to day or

periodic allowance that is given to the said person with the

permission of the Principal District Judge or the Chief Judge of the

said Court. So is the case of the Bar Association and the canteens

run by them. The payment of electricity/water charges of the Court

premises is also often disputed by the Bar association and

canteen, however, it can be settled administratively by the order of

the Hon'ble the Chief Justice or by the Principal District Judge or

the Head of the Institution.

11. On query, I could lay my hands over the guidelines for

promoting photocopy, fax, STD, PCO booths, canteen in the court

premises in view of the technological developments, framed by

the High Court on 2.3.1993. It is useful to reproduce the terms and

conditions of the same as under:

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"Guidelines for permitting Xerox, Fax, S.T.D., P.C.O., etc. Booths and Canteen in the Court premises in view of technological developments.

Regarding P.C.O./S.T.D. telephone booths

1) If the Department of Telecommunications installs public phones/S.T.D. Booths in Courts, permission should not be given to any private party.

2) If the Department of Telecommunications is not in a position to install P.C.O./S.T.D., permission should be given to private parties for starting a telephone or S.T.D. Booth near the Bar room at a place to be decided by the concerned District Judge.

3) The booth should consist of 4' x 4' space for the Telephone Operator and cabin of 3' x 3'.

4) No other facility or amenity should be given for running the said booth.

5) The Booth Operator should not be allowed to stray even an inch beyond the space so outlined.

6) The timing of the booth should be from 9.30 a.m. to 6.30 p.m. in general. However, the P.C.O. facilities may be permitted till 7.00 p.m. unless the District Judge/Presiding Judge of the respective place finds practical difficulties in doing so.

7) Bar Association should not be permitted to run such booths.

Regarding Fax facilities S.T.D. Booth Operator may be allowed to provide fax facilities in the space so allotted to him.

Regarding Installation of Xerox Machine. Permission to install xerox machines may be given directly to licensee and not to Bar Association by concerned District Judges on the following conditions:

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1) The xerox machine should be of a reputed company.

2) The rate for xeroxing should be fixed by negotiations by the District Judge/Presiding Judge of the Court concerned and the licensee.

3) The minimum space required for running xerox machine should be provided preferably near the Bar Association.

4) The Xerox Operator would be under an obligation to do copying work of the Courts at such rate as may be fixed by the District Judge or Presiding Judge of the Court as and when xerox machines in the Court are out of order, or not available, or burden on the official machines is heavy. In such cases, official of the Court would take the documents to be copied to the xerox operator and safely bring them back to the copying section. The xerox operator would give preference to the Court work. Initially this service of getting copying work done in private machines may be tried on experimental basis in Bombay.

Regarding Canteens:

1) No private person or contractor should be allowed to run a canteen in Court premises directly. If such permission is already granted to private person/contractor, the same should not be renewed, after expiry of the term, by the District Judge/Presiding Judge at respective places.

2) A Co-operative Society of staff members or Bar Association, as the case may be, at the respective places may be allowed to run the said canteens as per usual terms and conditions and undertakings.

3) In case of new proposals, a Co-operative Society of staff members or Bar Association may be allowed to run Court canteen on usual terms and conditions and undertakings only, if they run such canteens themselves by employing servants and not by engaging a contractor.

4) In case the Co-operative Society of staff or Bar Association is not willing or available to run canteen, private parties may be considered to run the canteen on the terms and conditions laid down by the High Court.

5) The licensees of the canteens should be prohibited

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from displaying posters, placards or sign boards advertising food items and drinks other than those prepared in the premises.

6) There should not be any commercial advertisement by any company of its food products upon the premises of the canteen which are part of the Court building.

General Guidelines In all these cases -

1) The licensees would have to pay licence fees for use of the premises at such rates as may be fixed by the P.W.D.

2) The licence would be for a period of one year, revocable by one month's noftice any time and renewable at the end of each year at the option of the District Judge or Presiding Judge of the Court concerned. After acquainting the High Court of relevant facts, the District Judge/Presiding Judge would have the option to revoke the licence without any notice if any breach of the terms of undertakings is noticed.

3) The decision of the District Judge/Presiding Judge in the matter shall be final.

(Sangitrao S. Patil) th Dated: 27 March, 2001. Additional Registrar"

12. These guidelines dated 2.3.1993 were again confirmed by

the Circular dated 27.3.2001 issued by the Additional Registrar.

These guidelines clear all doubts about as to who is in possession

of the Court premises or the ear-marked portion in the court

premises. At the time of hearing the matter, these guidelines or the

policy of the administration of the High Court was not brought

before the trial Court and thus, the trial Court had no opportunity to

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deal with it. This is the correct legal position in respect of

possessory rights of the canteen premises in the Court and,

therefore, in order to set right the view taken by the trial Court in

the present matter are reproduced and relied on by me. The

original plaintiff, thus, was allowed to run the canteen in the Court

premises on the third floor of the Small Causes Court and he was

paying some amount by way of compensation to the Bar

Association. He might have kept his utensils, refrigerator, gas

cylinder, etc. owned by him to facilitate to run the canteen and

which are to be handed over to him, if not, by the application -

Association. The respondent has right to claim his articles if

owned by him. However, he cannot claim any possessory right in

the canteen in the Court premises as he was put in possession

temporarily for a certain period every day. He was never in

exclusive possession and the possession whatever he had, was of

a temporary nature for a few hours in a day, for some period. U/s

6 of the Specific Relief Act, a person who is in a de-facto

possession is entitled to restoration, however, the de-facto

possession is not to be for such a temporary period but it should

be a settled possession. Where a person is allowed to run a

particular business in government premises for some time,

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especially in the Court premises, a question of creation of

possessory right of any other person than a head of the

establishment i.e., a District Judge, is illegal and not permitted and

in such a cases, the relief u/s 6 of the Specific Relief Act cannot be

granted. Neither the Bar Association nor the Contractor are in

possession of any ear-marked portion in the Court premises and

thus, there is no question of restoration of the plaintiff in the said

canteen premises.

13. With the above observations, the impugned judgment and

order of the trial Court is set aside. Civil Revision Application is

allowed.

14. The learned Counsel has requested that this order be stayed

for eight weeks as the respondent wants to challenge it in the

Supreme Court. I am informed that one another contractor is

running the canteen and paying electricity and water charges and

in view of this, stay refused.

(MRIDULA BHATKAR, J.)