Bombay High Court
Uttar Pradesh State Handloom ... vs The Oriental Insurance Co. Ltd. ... on 28 February, 2017
Bench: Rajesh G. Ketkar
Tapadia RR/B. 1 / 45 WP/2442/1994&1422/1996
THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
1. WRIT PETITION NO. 2442 OF 1994
Mrs. Rani Sevakram, since deceased,
by heirs and legal representatives:- ... Petitioners
1. Mrs. Purva alias Urvashi Suresh
Jahangiani;
2. Miss Jyotika Suresh Jhangiani;
3. Miss Ruchiak Suresh Jhangiani
having Shop No.8, Ground Floor, Indian Mercantile
Mansion, 22-24, Madam Cama Road,
Opp.Regal Cinema, Bombay 400005 and
"Panchamrut" Co-op. Housing Society, D/303,
Ghodbunder Road, Kasarvadavali, Thane (W)-400601
Versus
1. The Oriental Insurance Co. Ltd.
2. U.P.State Handlooms Corporation's
3. S.C.Shah, Estate Officer
Oriental Insurance Co.Ltd ... . .... Respondents
WITH
2. WRIT PETITION NO. 1422 OF 1996
Uttar Pradesh State Handloom Corporation
Limited,
an Uttar Pradesh State Undertaking
carrying on business, inter alia, at
Indian Mercantile Mansion, Ground Floor,
Shop No.8, Opposite Regal Cinema,
22/24, Madam Cama Road, Bombay. .. Petitioner
Versus
1. The Oriental Insurance Co. Ltd.
2. S.C.Shah, Estate Officer,
Oriental Insurance Co.Ltd
3. Mrs. Rani Sevakram, since deceased,
by heirs and legal representatives:-
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Tapadia RR/B. 2 / 45 WP/2442/1994&1422/1996
3A. Mrs. Purva alias Urvashi Suresh Jahangiani;
3B. Miss Jyotika Suresh Jhangiani;
3C. Miss Ruchiak Suresh Jhangiani;
having Shop No.8, Ground Floor, Indian Mercantile
Mansion, 22-24, Madam Cama Road,
Opp.Regal Cinema, Bombay 400005 and
"Panchamrut" Co-op. Housing Society, D/303,
Ghodbunder Road, Kasarvadavali,
Thane (W) -400601.. ... Respondents
WITH
1.CIVIL APPLICATION NO. 1109 OF 2016
IN
WRIT PETITION 1422 OF 1996
Purva Alias Urvashi Suresh Jahangiani Through
Attorney Mr. Gulab Talukdar
and Ors .... Applicants
V/S
Uttar Pradesh State Handloom Corp. Ltd. ... Respondent
WITH
2. CIVIL APPLICATION IN WP NO. 884 OF 2016
IN
WRIT PETITION 1422 OF 1996
The Oriental Insurance Co. Ltd. .... Applicant
V/S
Uttar Pradesh Handloom Corporation Ltd. .... Respondent
Mr. E.A.Sasi, Advocate for petitioners in W.P.No. 2442/1994 &
Respondents No. 3A to 3C in W.P. No.1422/1996.
Mr. A.R. Pandey a/w Ms. Pooja Pandey, Advocate for Petitioner in
W.P.No. 1422/1996.
Mr. V.Y.Sangalikar, Advocate for Respondent No. 1 in W.P.No.
1422/1996 & W.P.No.2442/1994.
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Tapadia RR/B. 3 / 45 WP/2442/1994&1422/1996
CORAM : R.G.KETKAR,J.
RESERVED ON : 24th JANUARY, 2017
DATE: 28th FEBRUARY, 2017.
JUDGMENT:
1. Heard Mr.E.A.Sasi, learned counsel for the petitioners in
Writ Petition No. 2442 of 1994 and Respondents no. 3A to 3C in
Writ Petition No.1422 of 1996, Mr.A.R.Pandey, learned counsel for
the petitioner in Writ Petition No.1422 of 1996 and Mr.
V.Y.Sanglikar, learned counsel for respondent no.1 in Writ
Petitions No. 2442 of 1994 and No.1422 of 1996 at length.
2. These Writ Petitions take exception to the Judgment and
order dated 27.10.1993 passed by Estate Officer in Case No.8 of
1992 as also the Judgment and order dated 29.4.1994 passed by
the learned Principal Judge, Bombay City Civil Court at Bombay
(for short, 'Appellate Authority') in Misc. Civil Appeals no. 155 and
153 of 1993. Since common questions of law and fact arise
between the same parties, these Petitions can, conveniently, be
disposed of by this common order. The relevant and material
facts giving rise to filing of these petitions, briefly stated, are as
under.
3. The controversy raised in these petitions is in respect of
Shop no.8, Ground floor, Indian Mercantile Mansion, opposite to
Regal Cinema, 22-24, Madam Cama Road, Opp.Regal Cinema,
Mumbai-400005 (for short, 'suit premises'). On 30.12.1991,
Tapadia RR/B. 4 / 45 WP/2442/1994&1422/1996
Oriental Insurance Company (for short, 'Insurer') made
application before Estate Officer setting out therein that Insurer
is a subsidiary of the General Insurance Corporation of India
which is a company as defined in Section 3 of the Companies Act,
1956, in which not less than 51% of the paid-up share capital is
held by the Central Government. Accordingly, the premises
belonging to, or taken on lease by or on behalf of the Insurer are
'public premises' within the meaning of Section 2(e)(2)(i) of the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971
(for short, 'Public Premises Act'). The building known as 'Indian
Mercantile Mansion", at the junction of Wodehouse Road and
Madam Cama Road, Opp. Regal Cinema, Mumbai 400005 (for
short, 'said building') belonged to and was the property of the
Indian Mercantile Insurance Company Ltd prior to the
nationalisation of the General Insurance Business
(Nationalisation) Act, 1972. As a consequence of the General
Insurance Business (Nationalisation) Act, 1972, the said building
has vested in the Insurer as reconstituted as a subsidiary of the
General Insurance Corporation of India under the scheme for
reorganization of the General Insurance Business under the said
Act, 1972. The said building owned and controlled by Insurer is a
public premises within the meaning of the Public Premises Act.
4. It is the case of Insurer that Ms. Rani Sevakram (for short,
'Sevakram'), since deceased, was the recorded tenant of the
Tapadia RR/B. 5 / 45 WP/2442/1994&1422/1996
Insurer in respect of the suit premises. The suit premises was
given on a monthly tenancy commencing from the first day of the
month according to the English Calendar and expiring on the last
day of each English Calendar month. The monthly rent including
permissible increases worked out to Rs. 518.83. As Sevakram
had been a consistent defaulter in payment of rent due and
payable to the Insurer, notice dated 19.7.1983 was duly served
on her. The tenancy was terminated at the expiration of the
month next to the current month of the tenancy. Sevakram was
called upon to quit, vacate and deliver quiet peaceful and vacant
possession of the suit premises.
5. In paragraph 5 of the application dated 31.12.1991, the
Insurer contended that as Sevakram did not vacate the suit
premises, Insurer instituted suit for eviction and recovery of
arrears of rents/compensation in the Small Causes Court at
Bombay being R.A.E. & R. Suit No.1388/3955/85. In view of the
provisions of the Public Premises Act, Small Causes Court has no
jurisdiction to entertain and try the suit as the provisions of the
Public Premises Act override the provisions of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 (for short,
'Bombay Rent Act'), the Insurer applied for withdrawal of the suit
and the suit was subsequently dismissed as withdrawn.
6. In paragraph 6 of the application, the Insurer contended
that though the eviction suit was filed before the Small Causes
Tapadia RR/B. 6 / 45 WP/2442/1994&1422/1996
Court and Sevakram took steps to defend the same, it transpired
that Sevakram had unauthorisedly and unlawfully sub-let or
given on licence, the whole or part of the premises or assigned or
transferred interest therein to M/s U.P.Handlooms Corporation (for
short, 'Corporation') for unlawful gain. In paragraph 7, it was
contended that the Corporation not only unlawfully occupied the
suit premises but also carried out illegal and unauthorisedly
structural changes by constructing a mezzanine floor in the suit
premises. In paragraph 9, the Insurer claimed damages at the
rate of Rs. 48,000/- per month with effect from 1.9.1983.
7. On 24.10.1989, the Insurer issued two separate notices to
Sevakram and Corporation. In the notice addressed to
Sevakram, it was stated that she had illegally and
unauthorisedly permitted the Corporation to use the premises
for commercial purpose. She was called upon to furnish full
details as per law regarding the nature of arrangement, monthly
compensation, etc., arranged and agreed with the Corporation.
She was also called upon to forthwith discontinue any user of
Corporation or any other person and surrender the premises
failing which the Insurer will be compelled to adopt appropriate
legal and other proceedings against her entirely at her risk as to
costs and consequences. Copy of the notice served on the
Corporation was also enclosed to show the extensive
unauthorized work done and cautioned Sevakram that she will
Tapadia RR/B. 7 / 45 WP/2442/1994&1422/1996
be entirely liable and responsible for all the acts and/or omission
of the Corporation.
8. In a notice addressed to the Corporation, Insurer called
upon it to disclose full details and particulars of the
arrangement/agreement etc and amounts paid or payable by the
Corporation to Sevakram with photocopies of the agreements
and latest receipts etc. It was further set out that the Insurer was
advised by the Mumbai Municipal Corporation vide their letter
dated 28.8.1989 that the Corporation have unauthorisedly
without obtaining Mumbai Municipal Corporation's permission
constructed mezzanine floor in the premises occupied by it. The
Corporation was called upon to demolish the unauthorized
mezzanine floor forthwith and called upon the Corporation not to
enter upon the suit premises any time except for demolishing
the unauthorized structure.
9. On 8.1.1992, Estate Officer issued notice to (1) Sevakram
(2) Corporation and (3) all other unauthorised occupants of Shop
no.8 as contemplated by Section 4(1) and (2) (b) (ii) of the Public
Premises Act. It was set out therein that the Estate Officer was of
the opinion that addressee is in unauthorized occupation of the
public premises (suit premises) on the grounds specified therein
and that they should be evicted from the suit premises. The
grounds specified were:
(i) Notice dated 19.7.1983 was issued to Sevakram for the
Tapadia RR/B. 8 / 45 WP/2442/1994&1422/1996
reasons stated therein calling upon her to quit, vacate and hand
over the vacant possession of the suit premises upon expiry of
tenancy month, in which the said notice was received by her.
Though Sevakram received the notice, vacant possession was
not given to Insurer in terms of the said notice and thus she
became unauthorised occupant with effect from 1.9.1983;
(ii) Even though the suit for eviction was filed, Sevakram had
unauthorisedly and unlawfully sub-let or given on licence the
whole or part of the premises or assigned or transferred interest
therein to Corporation.
(iii) Corporation, besides occupying unauthorisedly the suit
premises, also carried out illegal and unauthorized structural
changes by constructing mezzanine floor in the premises.
(iv) Sevakram and Corporation and others claiming through
them are in unauthorised occupation of the suit premises and
each of them is liable to be evicted for the reasons set out in the
application dated 31.12.1991 made by Insurer to the Estate
Officer, copy of which annexed therewith. The Estate Officer,
therefore, called upon them to show cause why an order of
eviction should not be made and called upon them to appear
before them in person or duly authorized representative capable
to answer all material questions connected with the matter along
with evidence which they intend to produce in support of the
cause shown for personal hearing. The case was numbered as
Tapadia RR/B. 9 / 45 WP/2442/1994&1422/1996
Case No.8 of 1992.
10. On the same day, Estate Officer issued notice under
section 7(3) of the Public Premises Act calling upon them to show
cause why an order requiring them to pay damages amounting to
Rs. 48 lakhs and at the rate(s) shown in Schedule-II below on
account of unauthorised use and occupation of the suit premises.
The Estate Officer proposed damages at the rate of Rs. 48,000/-
per month for the period from 1.9.1983 to 31.12.1991 future and
pendent lite damages. As noted earlier, along with notice dated
8.1.1992 issued by the Estate Officer under section 4(1) and (2)
(b)(ii), application dated 31.12.1991 made by the Insurer was
enclosed.
11. Sevakram resisted the application by filing written
statement dated 5.3.1992. She relied upon the Guidelines issued
by the Central Government and contended that in view of the
Guidelines the application is not maintainable and deserves to be
dismissed in limine. The suit premises was let out to her in the
year 1952, much prior to the Insurer purchasing the building, and
she had been in occupation since then and paying to her landlord
since then. She denied receipt of notice dated 19.7.1983. In any
event and without prejudice she denied the contents of the said
notice or validity of the said notice. She also denied that her
tenancy was terminated. She denied the ground of default and
in any event contended that the said ground was abandoned and
Tapadia RR/B. 10 / 45 WP/2442/1994&1422/1996
given up. Insurer is estopped from raising the said contention. In
view of the extra ordinary long period of time, the said notice
should be treated as lapsed and is treated to be as waived as the
rent is being recovered by Insurer from her since last almost 8
years after the said purported notice without any objection. It
was also contended that she is a commission agent of the
company dealing in U.P.Handlooms and is entitled by virtue of
agreement dated 25.3.1977 and further agreement dated
22.3.1982, to recover agency commission. She also made
reference to the suit instituted by the Corporation in the Small
Causes Court and contended that the Corporation had raised
false and dishonest claim by making false claim that it is a
subtenant. She also denied contention that any structural
alterations or any constructions were made.
12. The Corporation filed Written Statement dated 17.2.1992
opposing the application. It is contended that issue as to whether
the Corporation is a lawful sub-tenant or not under the Bombay
Rent Act is pending adjudication in R.A.D Suit No.2360 of 1987
filed in the Small causes Court having exclusive jurisdiction to
determine the said issue. It was, therefore, contended that if the
Estate Officer proceeds with the proceeding, it would not only
amount to interference with due course of administration of
justice by the Court of Small Causes Bombay but also seriously
prejudice the interest of the Corporation. In the circumstances,
Tapadia RR/B. 11 / 45 WP/2442/1994&1422/1996
Estate Officer ought to desist from going ahead with the
proceedings. Reference was also made to Guidelines issued by
the Central Government to contend that Estate Officer ought to
follow these Guidelines and withdraw the proceedings. Service of
notice dated 19.7.1983 as also its validity was denied.
Determination of tenancy was also denied. In paragraph 8, the
Corporation contended that Sevakram had sub-let a well
demarcated portion of the said premises along with mezzanine
floor to Corporation with effect from 1.4.1977. Demarcated and
defined portion of the said premises is about 3/4 th area of shop
no.8 on the ground floor. The subletting was done with the
consent, knowledge and acquiescence of the Insurer. Since
1.4.1977 the Corporation is in occupation as lawful sub-tenant
and carries on their business therefrom openly and to the
knowledge of all concerned. In any case, by conduct the insurer
had waived objection and is estopped from contending that the
Corporation is in unauthorized and/or unlawful occupation of the
premises or from treating its occupation as unauthorized.
Corporation also denied that it carried out illegal and/or structural
changes by constructing a mezzanine floor, as alleged or
otherwise. The mezzanine floor was already in existence when
the premises were sublet in the year 1977. Existence of
mezzanine floor in 1977 was with the knowledge of the Insurer.
The insurer is now estopped from contending that mezzanine
Tapadia RR/B. 12 / 45 WP/2442/1994&1422/1996
floor is illegal and/or unauthorized, particularly in view of their
knowledge, consent and acquiescence and also because of
waiver.
13. Parties adduced evidence before the Estate officer. After
considering the evidence on record, the Estate Officer ordered
eviction of Sevakram as also Corporation and also awarded
damages at the rate of Rs. 22000/- per month from 1.9.1983.
Aggrieved by this decision, the Corporation preferred Misc.
Appeal No.153 of 1993. Sevakram preferred Misc. Appeal No.155
of 1993 before the Appellate Authority under Section 9 of the Act.
By separate judgments and orders dated 29.4.1994, the
Appellate Authority dismissed both the Appeals. In so far as
damages awarded by the Estate Officer is concerned, that
direction was modified by directing the appellants to pay a sum
of Rs. 15,000/- per month in respect of the unauthorised
occupation from 1.9.1983 till date together with simple interest
at the rate of 12% per annum with effect from 1.11.1983 subject
to adjustment of the amount paid by Sevakram.
14. It is against these decisions, Sevakram has instituted Writ
Petition No. 2442 of 1994 ordering eviction and Writ Petition
No.2243 of 1994 in so far as ordering damages at the rate of
15000/- per month from 1.9.1983 onwards is concerned. The
Corporation has instituted Writ Petition No.1422 of 1996
challenging both order of eviction and awarding damages.
Tapadia RR/B. 13 / 45 WP/2442/1994&1422/1996
15. In support of the Petitions filed by Sevakram, Mr. Sasi relied
upon:-
(i) Guidelines issued by the Central Government on
21.10.1992 (Exhibit-J, pages 79 to 80 of Writ Petition
No.1422 of 1996 filed by Corporation);
(ii) Guidelines issued by the Central Government dated
30.5.2002 published in the Gazette of India, Part-I, Section-
1 dated 8.6.2002 which are considered by the Apex Court
in Suhas S. Pophale Vs. Oriental Insurance Company Ltd,
(2014) 4 SCC 657.
Relying upon these Guidelines, Mr. Sasi submitted that the
provisions of the Public Premises Act should be used primarily to
evict totally unauthorised occupants of the premises of public
authorities or subletees, or employees who have ceased to be in
their service and thus ineligible for occupation of the premises;
(iii) The provisions of Public Premises Act should not be
resorted to either with a commercial motive or to secure
vacant possession of the premises in order to
accommodate their own employees, where the premises
were in occupation of the original tenants to whom the
premises were let either by the public authorities or the
persons from whom the premises were acquired. The
Guidelines lay down that a person in occupation of any
premises should not be treated or declared to be an
Tapadia RR/B. 14 / 45 WP/2442/1994&1422/1996
unauthorized occupant merely on service of notice of
termination of tenancy, but the fact of unauthorised
occupation has to be decided by following the due
procedure of law. Further, the contractual agreement shall
not be wound up by taking advantage of the provisions of
the Public Premises Act. It will be open to the public
authorities to secure periodic revision of rent in terms of
the provisions of the Rent Control Act in each State or to
move under genuine grounds under the Rent Control Act
for resuming possession. In other words, the public
authorities would have rights similar to private landlords
under the Rent Control Act in dealing with genuine legal
tenants. The Guidelines further lay down that all the public
undertakings should immediately review all pending cases
before the Estate Officer or Courts with reference to these
Guidelines, and withdraw eviction proceedings against
genuine tenants on grounds otherwise than as provided
under these guidelines. The provisions of Public Premises
Act should be used henceforth only in accordance with
these Guidelines.
(iv)Mr. Sasi submitted that admittedly Sevakram was inducted
in the suit premises in the year 1952, much prior to the
Insurer purchasing the building. She had been in
occupation since then paying to her landlord since then. In
Tapadia RR/B. 15 / 45 WP/2442/1994&1422/1996
view of the Guidelines, Public Premises Act cannot be
resorted to either with a commercial motive or to secure
vacant possession of the premises where the premises
were in occupation of the original tenants, namely, in the
present case Sevakram, to whom the premises were let by
the persons from whom the premises were acquired. He
submitted that assuming for the sake of argument without
conceding that notice dated 19.7.1983 was served on
Sevakram, she cannot be treated or declared to be
unauthorised occupant merely on service of notice of
termination of tenancy. The fact of unauthorised
occupation has to be decided by following the due
procedure of law. The contractual tenancy cannot be
terminated and possession cannot be sought by taking
advantage of the Public Premises Act. As per the
Guidelines, it will be open to the Insurer to move under
genuine grounds under the Rent Control Act for resuming
possession.
(v) Mr. Sasi submitted that in fact in the present case, Insurer
had instituted suit against Sevakram in the year 1985. The
Guidelines further lay down that the provisions of the P.P.
Act has to be used henceforth only in accordance with the
Guidelines. Mr. Sasi, therefore, submitted that invocation
of provisions of Public Premises Act is in the teeth of the
Tapadia RR/B. 16 / 45 WP/2442/1994&1422/1996
Guidelines issued by the Central Government on
21.10.1992 and 30.5.2002. It is nothing but abuse of
discretionary powers on the part of the Insurer in moving
the Estate Officer for securing possession and damages
from Sevakram. He heavily relied upon the decision of the
Apex court in Suhas Pophale (supra).
16. Mr. Sasi submitted that in Suhas Pophale's case (supra), the
Apex Court has considered decision of Ashoka Marketing Ltd Vs.
Punjab National Bank, AIR 1991 SC 855. The Apex Court also
considered from what date would the Public Premises Act apply
to the premises concerned. The Court noted distinction between
the concept of taking over of management and taking over of
ownership. The Court considered the submission whether the
Public Premises Act can be given retrospective effect. The Court
dealt with the Guidelines issued by the Central government on
30.5.2002 for considering when the provisions of the Public
Premises Act to be resorted to. In paragraph 64, the Apex Court
held that 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
Tapadia RR/B. 17 / 45 WP/2442/1994&1422/1996
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, also get excluded. Until such date, the Bombay Rent Act and
its successor Maharashtra Rent Control Act, 1999 (for short,
'Maharashtra Rent 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 Rent Act or its successor
Maharashtra Rent 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
Tapadia RR/B. 18 / 45 WP/2442/1994&1422/1996
the State Act which alone will have the jurisdiction to entertain
such proceedings.
17. Mr. Sasi submitted that notice to quit dated 19.7.1983 was
not served to Sevakram. At any rate, notice to quit was waived
by Insurer. Mr.Sasi submitted that Sevakram had not inducted
Corporation as a sub tenant. Sevakram was working as a
commission agent dealing in UP Handlooms. He relied upon the
agreement dated 25.3.1977 and further agreement dated
22.3.1982 to establish That she was recovering agency
commission from the Corporation. He,therefore, submitted that
the authorities below were not justified in holding that Sevakram
had illegally sublet the premises to the Corporation.
18. Mr.Sasi submitted that before issuing notice by the Estate
Officer,he has to record a finding that Sevakram was in
unauthorized occupation of the suit premises.No such prima faice
finding is recorded by the Estate Officer. Notices were issued by
the Estate Officer under sections 4 and 7 without recording any
prima facie opinion. On this ground also, the impugned orders
are vitiated and as such are liable to be set aside.
19. In support of the petition filed by the Corporation, Mr.
Pandey submitted that the Corporation has already initiated
proceedings against Sevakram in the Small Causes Court by filing
a declaratory suit. The Corporation has sought a declaration that
it is a protected sub tenant and is inducted in the suit premises in
Tapadia RR/B. 19 / 45 WP/2442/1994&1422/1996
the year 1977. Since then the Corporation is in exclusive use,
occupation and possession and enjoyment and control of 3/4 th
area of the suit premises. He submitted that subletting was
done with the consent, knowledge and acquiescence of the
Insurer. The Corporation is, therefore, a lawful subtenant
inducted in the suit premises. He further submitted that the
Corporation did not carry out any illegal and/or unauthorised
construction of mezzanine floor. He, therefore, submitted that the
impugned orders deserve to be set aside thereby dismissing the
proceedings initiated against the Corporation.
20. On the other hand, Mr. Sanglikar supported the impugned
orders. He submitted that reliance placed on the Guidelines
dated 21.10.1992 and 30.5.2002 issued by the Central
Government is misconceived. In paragraph 23 of New India
Assurance Company Ltd Vs. Nusli Wadia, (2008) 3 SCC 279, the
Apex Court has held that the Guidelines are non statutory in
nature. Guidelines are advisory. No legal right is conferred on the
tenants by the Guidelines. In any case, Guidelines do not prohibit
action under the Public Premises Act. What the Guidelines
provide is that the power should not exercised arbitrarily.
Guidelines permit action under the Public Premises Act on the
grounds akin to Rent Control Act. In the present case, the Insurer
has specifically averred that Sevakram has unlawfully and
illegally inducted the Corporation. Sevakram has illegally sublet
Tapadia RR/B. 20 / 45 WP/2442/1994&1422/1996
the premises to the Corporation. The Corporation has constructed
mezzanine floor unauthorisedly and illegally.
21. Mr. Sanglikar relied upon the decision of the Division Bench
of this Court in Minoo Framroze Balsara Vs Union of India, AIR
1992 Bombay 375 and in particular paragraph 34 thereof. He also
relied upon the decisions of Ashoka Marketing Ltd (supra) as also
Kesar-I-Hind Pvt Ltd Vs. National textile Corp., (2002) 8 SCC 182.
The Apex Court has approved the view taken by the Division
Bench of this Court in Minoo Framroze Balsara case. In
paragraphs 40 and 41, the Apex Court has held that once the
Public Premises Act came into force with effect from 23.8.1971,
the existing Bombay Rent Act would be void. In view of Article
254(1), the law made by the parliament would prevail. In the
case of Crawford Bayley & Co. Vs. Union of India, (2006) 6 SCC
25, the Apex Court has held that the provisions of the Public
Premises Act would prevail over the provisions of the
Maharashtra Rent Act.
22. Mr.Sanglikar relied upon Full Bench decision of this Court in
Kamleshkumar I. Patel Vs Union of India, 1995 (2) Bom C.R. 640.
He submitted that this Court should prefer decision of a larger
Bench in Ashoka Marketing Ltd to that of smaller Bench of Suhas
Pophale's case. He submitted that in Ashoka Marketing (supra)
and in particular paragraphs 63 to 65 the Constitution Bench has
held that the effect of giving overriding effect to the provisions
Tapadia RR/B. 21 / 45 WP/2442/1994&1422/1996
of the Public Premises Act over the Rent Control Act would be
that buildings belonging to companies, corporations and
autonomous bodies referred to in S. 2(e) would be excluded from
the ambit of the Rent Control Act in the same manner as
properties belonging to the Central Government.
The reason underlying the exclusion of property belonging to the
Government from the ambit of the Rent Control Act, is that the
Government while dealing with the citizens in respect of property
belonging to it would not act for its own purpose as a private
landlord but would act in public interest. The Apex Court opined
that keeping in view the object and purpose underlying both the
enactments, i.e. the Rent Control Act and the Public Premises Act,
the provisions of the Public Premises Act have to be construed as
overriding the provisions contained in the Rent Control Act.
23. Mr. Sanglikar further submitted that even assuming for the
time being that Sevakram was inducted in the year 1952 and
that Insurer took over the building in 1972, on 19.7.1983, notice
was issued by Insurer to Sevakram determining the tenancy. He
submitted that the General Insurance (Emergency Provisions)
Act, 1971 came into force with effect from 13.5.1971. Section
3(2) thereof lays down that any contract, whether express or
implied, providing for management of the undertaking of an
insurer, made before the appointed day between the Insurer and
any person in charge of the management of such undertaking
Tapadia RR/B. 22 / 45 WP/2442/1994&1422/1996
immediately before the appointed day, shall be deemed to have
been terminated on the appointed day. He submitted that even
otherwise statutorily from 13.5.1971 the tenancy contract of
Sevakram came to an end. As the tenancy was determined on
13.5.1971, Sevakram cannot claim benefit of Section 15A of the
Bombay Rent Act. He submitted that this aspect was not dealt
with in Suhas Pophale's case.
24. Mr. Sanglikar submitted that in the Written Statement
Sevakram contended that notice to quit was never served on her.
He has taken me through the impugned orders passed by the
authorities below and submitted that the notice was duly served
on Sevakram. Her acknowledgment appears on A.D. Card. He
submitted that the suit instituted by the Insurer in Small Causes
Court could not proceed further as the Public Premises Act was
stayed by this Court. In any event, the suit was instituted in
Small Causes Court on the ground of default in payment of rent.
As against this, in the proceedings under the Public Premises Act,
the Insurer came with the case of unlawful subletting as also
unauthorized structural alterations. On 7.11.1996, the suit
instituted by the Insurer in Small Causes was withdrawn.
25. He submitted that the authorities below have concurrently
found that Sevakram had unlawfully inducted Corporation.
Corporation is unlawful sub-tenant. He submitted that in
paragraph 8 of the Written Statement, the Corporation came with
Tapadia RR/B. 23 / 45 WP/2442/1994&1422/1996
the case that Sevakram sublet the well demarcated portion
along with a mezzanine floor to it with effect from 1.4.1977. The
said demarcated and defined portion is about 3/4 th of the area of
the suit premises on the ground floor. The Corporation came with
the case that subletting was done with the consent, knowledge
and acquiescence of the Insurer. This stand was not
substantiated by the Corporation. He invited my attention to
letter dated 2.7.1993 addressed by General Manager of
Corporation to the Insurer. In that letter, it was set out that "the
Corporation being a Government undertaking, in good faith,
entered into subtenancy with Smt. Rani Sevakram under the
impression that the Insurance Company has granted the
permission to Smt. Rani Sevakram. However, the fact has been
disputed by the Insurance Company and the Insurance Company
thereafter initiated the proceeding of eviction and damages
against Smt. Rani Sevak and the Corporation before Estate
Officer which is still pending." Request was made that shop be
allotted to the Corporation on terms and conditions mutually
agreed and subject to and taking into consideration settlement
of/compromise between the Corporation and the Insurer in
eviction proceedings before the Estate Officer.
26. Mr. Sanglikar submitted that before issuing notices under
Sections 4 and 7 of the Public Premises Act, the Estate Officer
has recorded findings as contemplated under these provisions as
Tapadia RR/B. 24 / 45 WP/2442/1994&1422/1996
also in conformity with the decision of this Court in Minoo
Framroze Balsara case. He, therefore, submitted that no case is
made out for interfering with the impugned orders.
27. I have considered the rival submissions advanced by the
learned counsel appearing for the parties. I have also perused
the material on record. Mr.Sasi heavily relied upon Guidelines
issued by Central Government on 21.10.1992 and 30.5.2002. He
contended that in the present case, Insurer was not justified in
invoking the provisions of the Public Premises Act. In fact, the
Insurer had instituted suit for evicting Sevakram in the Small
Causes Court. In order to appreciate this submission, it is
necessary to reproduce the Guidelines dated 30.5.2002 issued by
the Central Government and in particular Guidelines 2(i), (iii)(v):
"2. To prevent arbitrary use of powers to evict genuine
tenants from public premises and to limit the use of powers
by the Estate Officers appointed under Section 3 of the
PP(E) Act, 1971, it has been decided by Government to lay
down the following guidelines:
(i) The provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 [(P.P.(E) Act, 1971]
should be used primarily to evict totally unauthorised
occupants of the premises of public authorities or subletees,
or employees who have ceased to be in their service and
thus ineligible for occupation of the premises.
(iii) A person in occupation of any premises should not be
treated or declared to be an unauthorised occupant merely
on service of notice of termination of tenancy, but the fact
of unauthorized occupation shall be decided by following the
due procedure of law. Further, the contractual agreement
shall not be wound up by taking advantage of the provisions
of the P.P.(E) Act, 1971. At the same time, it will be open to
the public authority to secure periodic revision of rent in
terms of the provisions of the Rent Control Act in each State
Tapadia RR/B. 25 / 45 WP/2442/1994&1422/1996
or to move under genuine grounds under the Rent Control
Act for resuming possession. In other words, the public
authorities would have rights similar to private landlords
under the Rent Control Act in dealing with genuine legal
tenants.
(v) All the public Undertakings should immediately review all
pending cases before the Estate Officer or Courts with
reference to these guidelines, and withdraw eviction
proceedings against genuine tenants on grounds otherwise
than as provided under these guidelines. The provisions
under the P.P. (E) Act, 1971 should be used henceforth only
in accordance with these guidelines.
Perusal of clause 2(i) shows that the Public Premises Act is meant
to evict totally unauthorised occupants of the public premises or
subletees. Clause 2(iii) provides that it will be open to the public
authority to secure periodic revision of rent in terms of the
provisions of the Rent Control Act. In other words, the public
authorities would have rights similar to private landlords under
the Rent Control Act in dealing with genuine legal tenants.
28. In the present case, Sevakram came with the case that she
was not served with notice dated 19.7.1983. Perusal of the
orders passed by the authorities below shows that they have
concurrently held that service was duly effected on Sevakram. In
particular in paragraph 26, the Appellate Authority observed that
the affidavit was filed by Shri V.R.Joshi, Assistant Legal Advisor
attached to Bombay Regional Office of the Insurer. He had
produced Registered A.D. Slip along with notice. A.D.Slip was
shown to Sevakram and her Advocate. Sevakram admitted her
signature on the Registered A.D. Slip. The Appellate Authority,
Tapadia RR/B. 26 / 45 WP/2442/1994&1422/1996
therefore, held that from the conduct of Sevakram, it is crystal
clear that notice was received by her and only because
Registered A.D. was not produced before the Court, she tried to
take undue advantage of situation and denied having received
termination of notice dated 19.7. 1983.
29. In paragraph 23, the Appellate Authority observed that
when Sevakram was confronted with the signature on registered
acknowledgment, she stated that the same was not signed by
her. She thereafter stated that the person who had signed
acknowledgment was not in her employment at the time when
she gave evidence. She thereafter stated that she does not know
who had signed acknowledgment slip and was not in a position to
recollect the name of person who had signed it. She also stated
that she does not remember whether she had instructed her
Advocate Bhanage to act on her behalf and send a reply to the
said letter. The Appellate Authority ultimately recorded a finding
that the notice was duly served upon Sevakram and her tenancy
was determined. The said finding is based upon material on
record. In view thereof, I do not find any merit in the submission
of Mr. Sasi that the notice dated 19.7.1983 was not served upon
Sevakram and that her tenancy was not terminated.
30. Mr.Sasi submitted that Sevakram did not induct Corporation
as sub-tenant. she was working as Commission Agent dealing in
U.P.Handlooms. He relied upon Agreement dated 25.3.1977 and
Tapadia RR/B. 27 / 45 WP/2442/1994&1422/1996
further Agreement dated 22.3.1982 to establish that she was
recovering agency commission from the Corporation.
He,therefore, submitted that the authorities below were not
justified in holding that Sevakram had unlawfully sublet the suit
premises to the Corporation. Mr. Pandey submitted that the
Corporation is a lawful sub tenant inducted with the consent,
knowledge of Insurer.
31. It is not possible to accept this submission. Perusal of the
Written Statement filed by the Corporation shows that it came
with the case that with consent, knowledge of Insurer, Sevakram
inducted it as a sub-tenant. A perusal of the letter dated
2.7.1993 addressed by the Corporation to Insurer shows that the
Corporation contended therein that being a Government
undertaking, in good faith, entered into sub-tenancy with
Sevakram under the impression that the Insurer had granted
permission to Sevakram. Neither Sevakram nor Corporation had
produced any permission on record. Thus, the position that
emerges is that in 1977 the Corporation was inducted illegally as
a sub-tenant by Sevakram. The authorities below have
considered this aspect. In particular, the Appellate Authority
from paragraph 35 onwards dealt with the issue of subletting.
After considering the material on record, the Appellate Authority
held that the agreements relied by Sevakram are merely
camouflage and in fact it amounts to subtenancy. Not only that,
the Corporation has instituted a declaratory suit in the Small
Causes Court for declaration that it is a tenant. The Appellate
Tapadia RR/B. 28 / 45 WP/2442/1994&1422/1996
Authority, after considering the Income-tax returns of Sevakram
as also her evidence, noted that Sevakram had no knowledge
about the nature of Handloom business. The Appellate Authority
concluded that the occupation of Corporation is not under the
agency agreement and the same is under the agreement which
is in fact of sub-tenancy under the guise of agency. The
agreement, though styled as agency agreement for all intent and
purposes, was a document of lease. The authorities below
concurrently found that Sevakram had unlawfully and
unauthorisedly inducted the Corporation as a sub-tenant in the
suit premises. I do not find any good reason to take a different
view. Sevakram and the Corporation were not in a position to
demonstrate that the findings recorded by the authorities below
are either contrary to evidence on record or that they are based
on no evidence. They were also not in a position to demonstrate
that no reasonable or prudent person would have reached the
conclusions arrived at by the authorities below. The findings
recorded by the authorities below are findings of fact based upon
appreciation of evidence on record. In view thereof, I do not find
any merit in the submissions of Mr. Sasi and Mr. Pandey that the
Corporation is not unlawful sub tenant.
32. I have already referred to Guidelines dated 30.5.2002
issued by the Central Government. As per Guideline 2(i), the
Public Premises Act is to be used to evict totally unauthorised
Tapadia RR/B. 29 / 45 WP/2442/1994&1422/1996
occupants of the premises of public authorities or subletees. As
per clause 2(iii), by following due procedure of law, the
authorities below have concluded that Sevakram and Corporation
are liable to be evicted. In paragraph 58 of of Suhas Pophale's
Judgment, the Apex Court referred to paragraph 23 of New India
Assurance Co. Ltd (supra). In paragraph 23 of that decision, the
Apex Court has held that the the Guidelines are non-statutory in
nature. The Guidelines are advisory. No legal right is conferred
on the tenant by the Guidelines. In any case, the Guidelines do
not prohibit action under the Public Premises Act. What the
Guidelines provide is that the the powers should not be exercised
arbitrary. The Guidelines permit action under the Public Premises
Act on the grounds akin to the Rent Act. The decision in Nusli
Wadia (supra) applies in all fours to the facts of the present case.
33. Mr. Sasi submitted that before issuing notice by the Estate
Officer, he has to record a finding that Sevakram was in
unauthorised occupation of the suit premises. No such prima
facie finding was recorded by the Estate officer. On this ground
also, impugned orders are vitiated and as such are liable to be
set aside.
34. In the case of Minoo Framroze Balsara case (supra). the
Division Bench of this Court observed in paragraph 34 thus:
"34. The provisions of the Eviction Act, 1971, can be applied
to persons who are in unauthorised occupation of public
premises A person, by reason of Section 2(g), is in
unauthorised occupation if his occupation is without
Tapadia RR/B. 30 / 45 WP/2442/1994&1422/1996
authority. He is in unauthorised occupation if he continues
to occupy public premises after the authority under which
he was allowed to occupy the same has expired or has been
determined for any reason whatsoever. The provisions of the
Eviction Act, 1971, therefore, entitle the Government
company or Corporation which is the owner of the public
premises to terminate for any reason whatsoever the
authority of the occupant to occupy the same and, by so
doing, place the Government company or corporation and
the occupant in the position of landlord and tenant
governed by the provisions of the Transfer of Property Act.
The provisions of Sections 4 and 5 of the Eviction Act, 1971,
deal with the procedure for the eviction of an unauthorised
occupant and must be read together. Section 4 prescribes
that the unauthorised occupant must be issued with a
notice in writing to show cause why an order of eviction
should not be passed against him. That notice has to be
issued by the Estate Officer provided he is of the opinion
that the addressee of the notice is in unauthorised
occupation of public premises and that he should be
evicted. Prima facie satisfaction of the Estate Officer is a
sine qua non of the issuance of the show cause notice. The
prima facie satisfaction must be two-fold; firstly, that the
addressee is in unauthorised occupation of public premises,
and, secondly, that, he should be evicted. The notice must
set out the grounds on which the order of eviction is
proposed to be made. It must, therefore, state not only why
the addressee is thought to be in authorised occupation but
also why it is thought that he should be evicted. It must
inform the addressee that he is entitled to show cause
against the proposed order of eviction. The addressee
cannot effectively show cause unless he knows why the
Estate Officer is of the opinion that he is in unauthorised
occupation. He also cannot show effective cause unless he
knows why his eviction is proposed. The provisions of
Section 4 make it clear that the addressee may seek a
personal hearing from the Estate Officer and may lead
evidence for the purposes of showing cause against the
proposed order of eviction. This is clear also from the
provisions of Section 8 which vest in the Estate Officer the
powers of a Civil Court in regard to the summoning of
witnesses and examining them on oath and the discovery
and production of documents."
35. Perusal of notices issued under sub-section (1) and clause
(b)(ii) of sub-section (2) of Section 4 as also under sub-section
Tapadia RR/B. 31 / 45 WP/2442/1994&1422/1996
(3) of Section 7 of the Public Premises Act issued by the Estate
Officer shows that the notices are in conformity with the
provisions under which they were issued as also in conformity
with paragraph 34 of Minoo Framrose Balasara's judgment
extracted herein above. I, therefore, do not find any merit in the
submission of Mr Sasi.
36. Mr.Sasi submitted that in the present case, Sevakram was
inducted in the suit premises in the year 1952, much prior to the
Insurer purchasing the building. In view of the Guidelines as also
the decision of Suhas Pophale's case, Public Premises Act cannot
be resorted to by the Insurer. He heavily relied upon paragraph
59, 60 and 64 of that decision in support of his submission.
37. In paragraph 59 of Suhas Pophale's case, the Court
observed that "for any premises to become public premises, the
relevant date will be 16.9.1958 or whichever is the later date on
which the premises concerned becomes the public premises as
belonging to or taken on lease by LIC or the nationalized banks or
the general insurance companies concerned. All those persons
falling within the definition of a tenant occupying the premises
prior thereto will not come under the ambit of the 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
Tapadia RR/B. 32 / 45 WP/2442/1994&1422/1996
Rent Act have, are continued under the Maharashtra Rent Act.
If possession of their premises is required, that will have to be
resorted to by taking steps under the Bombay Rent Act or the
Maharashtra Rent Act".
38. In paragraph 60, the Apex Court dealt with Section 15 of
the Public Premises Act and observed that "as far as the
relationship between respondent no.1 (Oriental Insurance
Co.Ltd), the other general insurance companies, LIC, nationalised
banks and such other government companies or corporations, on
the one hand and their occupants/licensees/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 duel 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".
39. In paragraph 64 of Ashoka Marketing, it was observed
Tapadia RR/B. 33 / 45 WP/2442/1994&1422/1996
thus:-
"64. It would thus appear that, while the Rent Control Act is
intended to deal with the general relationship of landlords
and tenants in respect of premises other than government
premises, the Public Premises Act is intended to deal with
speedy recovery of possession of premises of public nature,
i.e. property belonging to the Central Government, or
Companies in which the Central Government has substantial
interest or Corporations owned or controlled by the Central
Government and certain corporations, institutions,
autonomous bodies and local authorities. The effect of giving
overriding effect to the provisions of the Public Premises Act
over the Rent Control Act, would be that buildings belonging
to Companies Corporations and Autonomous bodies referred
to in Section 2(e) of the Public Premises Act would be
excluded from the ambit of the Rent Control Act in the same
manner as properties belonging to the Central Government.
The reason underlying the exclusion of property belonging to
the Government from the ambit of the Rent Control Act, is
that Government while dealing with the citizens in respect of
property belonging to it would not act for its own purpose as
a private landlord but would act in public interest. What can
be said with regard to Government in relation to property
belonging to it can also be said with regard to companies,
corporations and other statutory bodies mentioned in
Section 2(e) of the Public Premises Act. In our opinion,
therefore, keeping in view the object and purpose underlying
both the enactments viz., the Rent Control Act and the Public
Premises Act, the provisions of the Public Premises Act have
to be construed as overriding the provisions contained in the
Rent Control Act."
40. On the other hand, Mr.Sanglikar relied upon the decisions
in (i) Ashoka Marketing Ltd (supra), (ii) Minoo Framroze Balsara
(supra) and (iii) Kaiser-I-Hind Pvt Ltd (supra). In paragraphs 40
and 41 of Kaiser-I-Hind Pvt Ltd (supra), the Constitution Bench
has held that once the Public Premises Act came into force, the
Bombay Rent Act qua the properties of the government and
government companies would be inoperative. Once the Public
Premises Act came into force with effect from 23.8.1971, the
Tapadia RR/B. 34 / 45 WP/2442/1994&1422/1996
existing Bombay Rent Act would be void so far as it is repugnant
to the law made by the Parliament as in view of Article 254(i), the
law made by the Parliament would prevail. He submitted that in
Crawford Bayley & Co (supra) the Court has held that the
provisions of the Public Premises Act would prevail over the
provisions of the Maharashtra Rent Control Act.
41. Mr. Sanglikar submitted that Section 15 of the Public
Premises Act lays down that no court shall have jurisdiction to
entertain any suit or proceeding in respect of (a) the eviction of
any person who is in unauthorized occupation of any public
premises. Mr. Sanglikar relied upon the decision of the Apex
Court in the case of New India Assurance Co. Ltd. vs. Hilli
Multipurpose Cold Storage Pvt. Ltd, AIR 2016 SC 86, and
submitted that the law laid earlier by larger Bench, namely in
Ashoka Marketing (supra), will prevail over the law laid down by
the smaller Bench and is binding on the subsequent Bench of
lesser or equal strength. Mr. Sanglikar also relied upon the Full
Bench decision of this Court in Kamleshkumar I. Patel Vs Union of
India, 1995 (2) Bom C.R. 640, wherein it is held that the
declaration of law emanating from a larger Bench would
obviously outweigh any contrary observation in a smaller Bench
and it may not be even relevant to consider as to whether any
such declaration whether by the larger Bench or the smaller
Bench, was or was not accompanied by actual application
Tapadia RR/B. 35 / 45 WP/2442/1994&1422/1996
thereof.
42. In paragraphs 63 to 65 of Ashoka Marketing Ltd (supra), the
Constitution Bench has held that the effect of giving overriding
effect to the provisions of the Public Premises Act over the Rent
Control Act, would be that buildings belonging to Companies
Corporations and Autonomous bodies referred to in Section 2(e)
of the Public Premises Act would be excluded from the ambit of
the Rent Control Act in the same manner as properties belonging
to the Central Government. The reason underlying the exclusion
of property belonging to the Government from the ambit of the
Rent Control Act, is that Government while dealing with the
citizens in respect of property belonging to it would not act for its
own purpose as a private landlord but would act in public
interest. The Apex Court held that keeping in view the object and
purpose underlying both the enactments viz., the Rent Control
Act and the Public Premises Act, the provisions of the Public
Premises Act have to be construed as overriding the provisions
contained in the Rent Control Act.
43. Thus, there are two Constitution Benches' decisions of the
Apex Court, namely, Ashoka Marketing Ltd., and Kaiser-I-Hind Pvt.
Ltd, which hold that once the Public Premises Act came into
force, the Bombay Rent Act qua the properties of the government
and government companies would be inoperative. On the other
hand, the Bench consisting of two learned Judges of the Apex
Tapadia RR/B. 36 / 45 WP/2442/1994&1422/1996
Court in Suhas H. Pophale (supra) has held that all those persons
falling within the definition of a tenant occupying the premises
prior to 16.9.1958 or whichever is the later date on which the
premises concerned becomes the public premises, will not come
under the ambit of the Public Premises Act 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. If
possession of their premises is required, that will have to be
resorted to by taking steps under the Bombay Rent Act or the
Maharashtra Rent Act.
44. Before I deal with the question whether I should follow and
apply the decisions of the Constitution Benches in Ashoka
Marketing Ltd and Kaiser-I-Hind Pvt. Ltd or Suhas H. Pophale
decisions, it is necessary to deal with the provisions of the Public
Premises Act.
45. Sections 2(e)(2)(i) and 2(g) read thus:
"2. Definitions.- In this Act, unless the context otherwise
requires -
(e) "public premises" means-
(1) xxx xxx
(2) any premises belonging to, or taken on lease by, or on
behalf of,-
(i) any company as defined in Section 3 of the Companies
Tapadia RR/B. 37 / 45 WP/2442/1994&1422/1996
Act, 1956 (1 of 1956), in which not less than fifty-one per
cent of the paid-up share capital is held by the Central
Government or any company which is a subsidiary (within
the meaning of that Act) of the first-mentioned company,"
(g) "unauthorised occupation", in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and includes
the continuance in occupation by any person of the public
premises after the authority (whether by way of grant or any
other mode of transfer) under which he was allowed to
occupy the premises has expired or has been determined for
any reason whatsoever.
Section 15(a) reads thus:-
"15. Bar of jurisdiction - No court shall have jurisdiction to
entertain any suit or proceeding in respect of -
(a) the eviction of any person who in unauthorized
occupation of any public premises, or
46. In paragraph 30 of Ashoka Marketing Ltd (supra), the
Constitution Bench has dealt with expression 'unauthorised
occupation'. It was observed thus:
"30. The definition of the expression 'unauthorised
occupation' contained in Section 2(g) of the Public Premises
Act is in two parts. In the first part the said expression has
been defined to mean the occupation by any person of the
Public premises without authority for such occupation. It
implies occupation by a person who has entered into
occupation of any public premises without lawful authority
as well as occupation which was permissive at the inception
but has ceased to be so. The second part of the definition is
inclusive in nature and it expressly covers continuance in
occupation by any person of the public premises after the
authority (whether by way of grant or any other mode of
transfer) under which he was allowed to occupy the
premises has expired or has been determined for any reason
whatsoever. This part covers a case where a person had
entered into occupation legally under valid authority but
who continues in occupation after the authority under which
he was put in occupation has expired or has been
determined. The words "whether by way of grant or any
Tapadia RR/B. 38 / 45 WP/2442/1994&1422/1996
other mode of transfer" in this part of the definition are wide
in amplitude and would cover a lease because lease is a
mode of transfer under the Transfer of Property Act. The
definition of unauthorised occupation contained in
Section 2(g) of the Public Premises Act would,
therefore, cover a case where a person has entered
into occupation of the public premises legally as a
tenant under a lease but whose tenancy has expired
or has been determined in accordance with law."
(emphasis supplied)
47. In the present case, Sevakram was inducted in the suit
premises as a tenant in the year 1952. Thus, she entered into
occupation of the suit premises under a valid authority. In 1971,
building where the suit premises is situate, was taken over by
Insurer. It is not in dispute that the suit premises belongs to
Insurer and is a public premises within the meaning of Section
2(e)(2)(i) of the Public Premises Act. It is also established that by
notice dated 19.7.1983, tenancy of Sevakram was
terminated/determined. Thus, the definition of expression
'unauthorised occupation' contained in section 2(g) covers a case
where a person like Sevakram who was inducted as a tenant and
thus had entered into occupation legally under valid authority
but who continues in occupation after the authority under which
he was put in occupation has expired or has been determined.
The Constitution Bench held that the words "whether by way of
grant or any other mode of transfer" in this part of the definition
are wide in amplitude and would cover a lease because lease is a
mode of transfer under the Transfer of Property Act. The
Tapadia RR/B. 39 / 45 WP/2442/1994&1422/1996
definition of unauthorised occupation contained in Section 2(g) of
the Public Premises Act would, therefore, cover a case where a
person has entered into occupation of the public premises legally
as a tenant under a lease but whose tenancy has expired or has
been determined in accordance with law. Section 15 of the Public
Premises Act mandates that no court shall have jurisdiction to
entertain any suit or proceeding in respect of (a) the eviction of
any person who is unauthorised occupation of any public
premises.
48. In Suhas H. Pophale's case (supra), the Apex Court has held
that all those persons falling within the definition of a tenant
occupying the premises prior to the premises becoming public
premises on 16.9.1958 or subsequently, cannot be said to be
persons in unauthorized 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. If possession of their premises is
required, that will have to be resorted to by taking steps under
Bombay Rent Act or Maharashtra Rent Act as the case may be.
Same was reiterated in paragraph 64. In my opinion, once the
premises in question becomes public premises, the public
authority can resort to provisions of the Public Premises Act for
eviction of any unauthorized occupant. It can not invoke the
Tapadia RR/B. 40 / 45 WP/2442/1994&1422/1996
provisions of the Bombay Rent Act or the Maharashtra Rent Act,
as the case may be. The entities specified in Section 2(e)(1) and
(2) cannot be asked to resort to the provisions of either the
Bombay Rent Act or the Maharashtra Rent Act on the ground that
the occupant was inducted prior to the premises becoming the
public premises. In my opinion, that will be contrary to the
provisions of Sections 2(e) (2)(g) and 15 of the Public Premises
Act as also it will be contrary to the Statement and Objects and
reasons for which the Public Premises Act was enacted. Even if a
person is inducted prior to 16.9.1958 or prior to the premises
becoming a public premises, once it becomes a public premises
in terms of Section 2(e) of the Public Premises Act, his tenancy
rights are attorned to the concerned entity specified in Section
2(e) of the Public Premises Act. Thus, the Public Premises Act is
applicable to the premises specified in Section 2(e) as also the
entities specified in Section 2(e) can invoke the Public Premises
Act by approaching the Estate Officer appointed under the Public
Premises Act. The Estate Officer has to follow procedure under
Sections 4 to 7 by exercising powers under section 8. Merely
because occupant is inducted as tenant prior to 16.9.1958 or
prior to premises being taken over by the entities specified in
section 2(e) of the Public Premises Act, the premises does not
ceased to be a public premises.
49. This aspect can also be considered by considering the
Tapadia RR/B. 41 / 45 WP/2442/1994&1422/1996
entities specified in Section 2(e) of the Public Premises Act. Under
Section 2(e), the premises may belong to Central
Government/State Government or any other companies,
corporations specified therein. Section 3(1)(a) of the
Maharashtra Rent Act and Section 4(1) of the Bombay Rent Act
lay down that these Acts shall not apply to any premises
belonging to the Government.. . In view thereof, State
Government/Central Government cannot invoke provisions of
either the Bombay Rent Act or the Maharashtra Rent Act and
essentially will have to invoke provisions of the Public Premises
Act for eviction of unauthorized occupants. As against this, if
submission of Mr.Sasi that in view of the decision of Suhas
Pophale's case and more particularly paragraphs 59 and 64,
entities other than the Central/State Governments will have to
invoke Bombay Rent Act or Maharashtra Rent Act as the case
may be, is accepted, it will defeat the object for which the Public
Premises Act is enacted.
50. The entities other than Central/State Government will have
to invoke Bombay Rent Act or Maharashtra Rent Act, as the case
may be, for eviction of those persons falling within the definition
of tenant occupying the premises prior to the premises becoming
public premises on 16.9.1958 or whichever is the later date on
which the premises concerned becomes the public premises.
Thus, the Central/State Government can invoke provisions of the
Tapadia RR/B. 42 / 45 WP/2442/1994&1422/1996
Public Premises Act in respect of these persons and the entities
other than the Central/State Government will have to invoke
provisions of the Bombay Rent Act or Maharashtra Rent Act, as
the case may be. In paragraphs 62 to 65 of Ashoka Marketing
Ltd, (supra), the Constitution Bench has held that the effect of
giving overriding effect to the provisions of Public Premises Act
over the Rent Act would be that building belonging to companies,
corporations and autonomous bodies referred to in Section 2(e)
of the Public Premises Act, would be excluded from the ambit of
the Rent Act in the same manner as the properties belonging to
the Central Government. In paragraphs 40 and 41, the
Constitution bench in Kaier-I-Hind Pvt Ltd. (supra) has held that
once the Public Premises Act came into force, the Bombay Rent
Act qua the properties of the government and the Government
companies would be inoperative.
51. In the light of the aforesaid discussions and in view of the
decisions of Full Bench of this Court in Kamleshkumar Ishwardas
Patel (supra) as also of New India Assurance Company (supra), I
prefer to follow the law laid down by larger Benches of the Apex
Court in Ashoka Marketing Ltd (supra) and Keiser-I-Hind Pvt Ltd
(supra), more so when in paragraph 66 of Suhas Pophale's
decision (supra), the Division Bench held that they have not, for a
moment, taken any different position from the proposition in
Ashoka Marketing Ltd (supra). I, therefore, do not find any merit
Tapadia RR/B. 43 / 45 WP/2442/1994&1422/1996
in the submission of Mr. Sasi that the Insurer has to invoke the
provisions of the Bombay Rent Act or the Maharashtra Rent Act
as the case may be. In the result, Petitions fail and the same are
dismissed.
52. In view of dismissal of the Petition, Civil Applications
No.1109 and 884 of 2016 in Writ Petition No.1422 of 1996 do not
survive and the same are disposed of.
53. At this stage, Mr. Sasi and Mr. Pandey orally apply for stay
of this order for a period of eight weeks from today. Mr. Sasi
assures that within two weeks from today, legal representatives
of Ms. Rani Sevakram using the suit premises will file usual
undertaking after giving advance copy to the other side
incorporating therein:
(i) that they are in actual possession of the suit
premises and nobody else is in possession;
(ii) that they have so far neither created third party
interest nor parted with the possession of the suit
premises;
(iii) that they will hereafter neither create third party
interest nor part with the possession of the suit premises;
that they will pay compensation fixed by this Court, to the
Insurer;
(v) that in case they are unable to obtain suitable orders
within eight weeks from today from the higher Court, they
will deliver vacant and peaceful possession of the suit
premises to the Insurer.
Tapadia RR/B. 44 / 45 WP/2442/1994&1422/1996
54. Mr. Pandey also assures that on behalf of U.P.Handloom
Corporation, an authorized representative will file usual
undertaking within two weeks from today incorporating therein:
(i) that they are in actual possession of the suit
premises and nobody else is in possession;
(ii) that they have so far neither created third party
interest nor parted with the possession of the suit
premises;
(iii) that they will hereafter neither create third party
interest nor part with the possession of the suit premises;
that they will pay compensation fixed by this Court, to the
Insurer;
(v) that in case they are unable to obtain suitable orders
within eight weeks from today from the higher Court, they
will deliver vacant and peaceful possession of the suit
premises to the Insurer.
55. In view thereof, notwithstanding dismissal of the writ
petitions and subject to the legal representative of Sevakram and
the authorized representative of the Corporation filing the
undertakings in aforesaid terms within two weeks from today,
interim order operating in the petitions shall remain in force for a
period of eight weeks from today with clear understanding that
no further extension shall be sought from this Court. It is made
clear that in case the legal representatives of Sevakram and
authorized representative of Corporation do not file the
undertakings within the stipulated period, interim relief shall
stand vacated without reference to the Court and the Insurer will
Tapadia RR/B. 45 / 45 WP/2442/1994&1422/1996
be at liberty to proceed in the matters in accordance with law.
56. List the matters for reporting compliance after ten weeks.
(R.G.KETKAR,J.)
