Bombay High Court
Life Insurance Corporation Of Inida vs Niloufer Marshall on 3 November, 2025
2025:BHC-AS:46644
4-cra-427-2009.doc
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 427 OF 2009
Life Insurance Corporation of India
A statutory corporation established under the
Life Insurance Corporation Act, 1956, having its
Western Zonal Office at " Yogakshema", Jeevan
Bima Marg, Mumbai 400 021. .... Applicant
Versus
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
1. Niloufer Marshall
2025.11.03
22:11:59
+0530
Flat No. 6, Second Floor,
Queens Court Maharshi Karve Road,
Mumbai 400 020.
2. Tehmina R. Bharucha
(since deceased)
(deleted as per court's order dt. 1/2/2010)
3. Rustom K. Bharucha
Home Stead, 6, Alexandra Road,
Gamdevi, Mumbai 400 007.
4. Pheroze A. Bhatena
Malbari Bldg, New Khareghat Colony,
Babulnath Road, Mumbai 400 004. ..... Respondents
Mr. Sanglikar a/w. Mr. Roopadaksha Basu, Ms. Heenal
Wadhwa i/b. The Law Point for the applicant.
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Mr. Haresh Jagtiani, Senior Advocate a/w. Mr. Yashpal Jain
and Ms. Jahnavi Vora for respondent no.1.
CORAM : GAURI GODSE, J.
RESERVED ON: 7th AUGUST 2025
PRONOUNCED ON: 3rd NOVEMBER 2025
JUDGMENT :
-
BASIC FACTS:
1. This civil revision application is filed by the original
applicant to challenge the judgment and order passed by the
City Civil Court allowing the appeal of respondent no. 1 ("the
occupant"). By the impugned order, the occupant's appeal is
allowed, thereby setting aside the eviction order passed by
the learned Estate Officer. Respondent Nos. 2 to 4 are the
executors of the Will of the authorised tenant. The name of
Respondent No. 2 is deleted vide order dated 1 st February
2010. The occupant claims to have been occupying the
premises along with the authorised tenant. It is the
applicant's contention that after the death of the authorised
tenant, the occupant is unauthorisedly occupying the
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premises. The premises in question is a flat admeasuring
around 2000 square feet and a garage ('subject premises').
2. The subject premises is owned by the Life Insurance
Corporation of India ("applicant"). The original recorded
tenant of the subject premises was one Ms. Tehmina
Bharucha, and after her death, the tenancy was transferred
in the name of her husband Dr. Darasahah Bharucha. The
last recorded tenant, i.e. Dr. Bharucha expired on 11 th
September 1994. Dr. Bharucha had executed his Will and
appointed respondent nos. 2 to 4 as administrators of the
Will. The occupant claims to be Dr Bharucha's niece and to
have been residing at the subject premises along with him.
She therefore claims that under the Will, Dr Bharucha
bequeathed the subject premises to her. Hence, she claims
to have become the tenant of the subject premises.
3. After the death of Dr Bharucha, the applicant issued
the termination notice dated 25th January 1997 addressed to
the heirs and legal representatives of Dr Bharucha. The
notice was also addressed to the occupant, calling upon her
to vacate and hand over the subject premises. The
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Applicant filed an application under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 ('said Act'),
for eviction and damages against the respondents. The
Estate Officer issued a show cause notice under Section
4(2) of the said Act, and another notice under Section 7 of
the said Act for recovery of damages with interest.
4. After the receipt of the show cause notice, the
occupant filed her written statement before the Estate
Officer. Respondent nos. 2, 3 and 4 submitted a letter and
informed the Estate Officer that they were wrongly
impleaded in the proceedings and that they were bound by
the Will and had administered the bequest. Issues were
framed by the Estate Officer, and the parties led their
respective evidence. The Estate Officer passed an order of
eviction under Section 5(1) of the said Act and also directed
recovery of damages with interest under Section 7(2) (2A).
The Estate Officer held that the occupant is unauthorisedly
occupying the subject premises and she was never
recognised as a tenant by the applicant.
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5. Being aggrieved by the decision of the Estate Officer,
the occupant preferred an appeal before the City Civil Court.
By the impugned order, the appeal is allowed, and the
Estate Officer's decision is set aside. Hence, this civil
revision application by the original applicant.
SUBMISSIONS ON BEHALF OF THE APPLICANT:
6. Learned counsel for the applicant submits that, as per
the terms and conditions of the tenancy, the agreement
executed with Dr Bharucha, nobody was residing along with
him when the tenancy was created in his favour. Learned
counsel for the applicant relied upon various letters
produced on record. By letter dated 25 th September 1985,
Dr Bharucha, through his advocate, had informed the
applicant that, except for him, nobody else was residing with
him. Dr Bharucha issued another letter dated 13 th May 1985
stating that one Smt. Piroja N. Panthakhi had been staying
in the subject premises since 1983 as a housekeeper. The
letter further clarified that there was no relation between Dr
Bharucha and Smt. Piroja. On the query made by the
applicant with reference to this letter, Dr Bharucha, through
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a letter dated 25th September 1985, clarified that, except for
him, nobody else was claiming any right in respect of the
subject premises. Accordingly, the terms of tenancy were
created between the applicant and Dr Bharucha. As per the
terms and conditions, agreed between the applicant and Dr
Bharucha on 19th May 1986, it was agreed that the tenant,
i.e. Dr Bharucha, shall not assign, sub-let or part with
possession of the subject premises or any part thereof, even
if allowed by the law, without the previous consent in writing
of the applicant.
7. As per the applicant's record, the original tenant was
Smt. Tahmania Bharucha, and after her death, her husband,
Dr Bharucha, was recognised as the tenant. The occupant
claimed the tenancy right on the grounds that she was
related to the tenant. The applicant therefore examined her
claim, but refused to accept her as a tenant in place of Dr
Bharucha. Since the subject premises were occupied by
respondent no. 1, a notice dated 25 th January 1997 was
issued to the heirs and legal representatives of Dr
Bharucha, and the same was also served upon respondent
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no. 1, i.e., the occupant. Learned counsel for the applicant,
therefore, submits that as per the terms and conditions of
tenancy transferred to Dr Bharucha, he was not entitled to
assign the subject premises by executing a Will without the
applicant's consent.
8. Learned counsel for the applicant submits that the
occupant relied upon Section 108 of the Transfer of Property
Act, 1882 ('TP Act') to claim that there was no valid
termination of tenancy. However, Section 108 of the TP Act
has to be read along with clauses (g) and (j) and thus, in the
absence of any terms agreed between the parties, the
assignment by the original tenant would amount to breach of
the terms and conditions of the tenancy.
9. To support his submissions, learned counsel for the
applicant relied upon the decision in the case of Ashok
Marketing Limited and Anr Vs. Punjab National Bank and
Ors1. He submitted that it is a well-established legal principle
that the provision of said Act has been construed as having
an overriding effect on the provisions of the Rent Control
1 (1990) 4 SCC 406
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Act. A person in an unauthorised occupation of public
premises cannot invoke protection under the Act. A tenant's
right to sublet the tenanted premises is subject to a contract
to the contrary. He relied upon section 108 of the Transfer of
Property Act. Dr Bharucha had signed a tenancy agreement.
Clause 9 contained a covenant that prevented him from
assigning, sub-letting, or parting with possession of the
subject premises, even if permitted by law. Clause 9 is a
contract against sub-letting, transfer or parting of
possession. Hence, the occupant would not be entitled to
claim any right in the subject premises on the ground that
she was occupying the subject premises along with the
recognised tenant and continued to occupy even after his
death.
10. Learned counsel for the applicant relied upon the
decisions of the Hon'ble Apex Court in the case of Vasant
Pratap Pandit Vs. Dr. Anant Trimbak Sabnis 2. The Hon'ble
Apex Court held that transfer or assignment is not restricted
to inter-vivos transactions. A bar against transfer
assignment or parting of possession also applies to
2 (1994) 3 SCC 481
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bequests under the Wills. It is held that the legislature could
not have intended to confer such a right on the testamentary
heir. He also relied upon the decision of the Apex court in
the case of Bhavarlal Labhchand Shah Vs. Kanaiyalal
Nathalal Intawala3 and Zahid Ahmedali Mazgaonwalla and
Anr Vs. Smt. Gulshan Pyarali Mazgaonwalla4 on a similar
proposition of law, where it is held that tenancy rights cannot
be bequeathed if there is a bar.
11. Learned counsel for the applicant also relied upon the
unreported decision of this court dated 31 st August 2012, in
the case of Bettye E. Menezes Vs. Life Insurance
Corporation of India5. He submits that this court by relying
upon the legal principles settled in the case of Ashok
Marketing Limited and Anr, held that protection or claim
under Section 5(11)(c) of the Bombay Rent Act is not
available to the occupants of public premises nor can
tenancy rights be bequeathed. Thus, the person occupying
the subject premises through the original recorded tenant
3 AIR 1986 SCC 600
4 2006(5) Mh.L.J
5 Writ Petition No. 9494 of 2010, order dated 31st August 2012
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would amount to the person's unauthorised occupation of
the public premises under Section 2(g) of the said Act.
12. Learned counsel for the applicant also relied upon the
decision of the Hon'ble Apex Court in the case of
Vinodchandra Sakarlal Kapadia Vs. State of Gujarat and
Ors6. He submits that the Hon'ble Apex Court has held that
the term assignment includes testamentary disposition as
well a transfer cannot be restricted to inter-vivos
transactions. Learned counsel for the applicant, therefore,
submits that by applying the same legal principles, the
disposition in the present case, by way of a Will executed by
Dr Bharucha, cannot be termed as a valid disposition.
Hence, an assignment by way of Will would amount to a
breach of the terms of the tenancy.
13. Learned counsel for the applicant relied upon the
decisions of the Hon'ble Apex Court in New India Assurance
Company Ltd Vs. Nusli Neville Wadia and Anr 7 and
Syndicate Bank Vs. Ramachandra Pillai and Ors 8 and
submitted that the Government guidelines are non-statutory
6 (2020) 18 SCC 144
7 (2008) 3 SCC 279
8 (2011) 15 SCC 398
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and advisory in character. Hence, the guidelines confirm no
right on an occupant of the public premises. According to
the learned counsel for the applicant for termination of
tenancy under the said Act, no reasons are required as the
notice of termination is issued under Section 106 of the
Transfer of Property Act. To support his submissions,
learned counsel for the applicant relied upon the decision of
the Hon'ble Apex Court in the case of Jiwan Das Vs. Life
Insurance Corporation of India and Anr9.
14. Learned counsel for the applicant submitted that in the
present case, the show cause notice for eviction was issued
by the Estate Officer on a prima facie satisfaction that the
occupant is in unauthorised occupation and thus should be
evicted. As held by the Hon'ble Apex Court in New India
Assurance Company fairness, reasonableness, etc. needs
to be observed, only if the noticee had any authority to
occupy, and the tenancy is terminated. To support his
submissions, the learned counsel for the applicant relied
upon the decision of the Hon'ble Apex Court in the case of
9 1994 Supp (3) SCC 694
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Minoo Framroze Balsara v. The Union of India and Ors 10.
Learned counsel for the applicant also relied upon the
decisions in the case of Jain Ink Manufacturing Company
Vs. Life Insurance Corporation of India and Anr 11, Crawford
Bayley and Co and Others Vs. Union of India and Ors 12 and
Kaiser-I-Hind Pvt. Ltd. Vs National Textile Corporation 13 to
support his submissions that the said Act prevails upon the
Rent Act.
15. He submitted that in the present case, the occupant is
not a close relative of Dr Bharucha, as she herself had
stated that she is the daughter of Dr Bharucha's cousin.
Section 55 of the Indian Succession Act applies to Parsis.
Part II of the Schedule II of the Act lists out the heirs for the
persons who have no widow and lineal descendants, which
includes father, mother, brother, sisters and paternal and
maternal grandparents. A perusal of Dr Bharucha's will show
that he has mentioned his sister, Tehmina and nephew,
Rustom. He thus submitted that in the present case, the
10 1991 SCC Online Bom 59
11 (1980) 4 SCC 435
12 (2006) 6 SCC 25
13 (2002) 8 SCC 182
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occupant cannot claim to have become a tenant by virtue of
the provisions of the Rent Act.
16. The show cause notice issued by the Estate Officer
and the grounds mentioned therein are in compliance with
the provisions of the said Act. Once the terms and
conditions of the tenancy came into play, the findings
recorded by the Appellate Court holding that the occupant
would have the right to continue in the premises as a tenant
would not be sustainable. He submits that the Appellate
Court has misread the legal principles settled in the decision
of Vasant Pratap Pandit. There is a fallacy in the
observation made by the Appellate Court. If the provisions of
the Transfer of Property Act would apply, there is no
question of applying Section 5(11)(c) of the Rent Act. He
submits that, as per the well-settled legal principles, the
scope and object of the said Act are quite different from that
of the Rent Act, and thus, the Rent Act, which has a much
wider application than the said Act, would not fall within the
limited interpretation indicated in Section 2 (g) of the said
Act. It is held that the object of the Rent Act is to offer
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special protection to all tenants or private landlords who are
neither the corporation nor the government nor corporate
bodies. Hence, according to the learned counsel for the
applicant, the occupant would not be entitled to claim any
right in respect of the subject premises by relying upon the
provisions of the Rent Act.
17. Learned counsel for the applicant submitted that the
unauthorised occupation is defined under Section 2(g) of the
said Act. An unauthorised occupation is in two parts, i.e.
firstly, those who have no authority means whose entry is
without authority and secondly, those whose authorised
entry is terminated for any reason whatsoever. As held by
the Hon'ble Apex Court, in the case of the New India
Assurance Company, the occupant in the present case,
would thus fall in the first category, that is, the entry of the
occupant in the premises is without any authority. The
authorisation was given by the applicant only to Dr
Bharucha. Thus, the findings recorded by the Appellate
Court holding that the occupant is not in an unauthorised
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occupation are erroneous and contrary to the well-settled
legal principles.
18. The appellate Court has erroneously held that the
tenancy rights can be bequeathed, and it does not amount
to a transfer, and that a transfer means transfer inter vivos,
and thus, the tenancy condition in clause 9 in the present
case would not be a bar to bequest. Despite the well-settled
legal principles by the Hon'ble Apex Court, the Appellate
Court wrongly relied upon the decisions of the Gujarat and
the Karnataka High Court. Thus, the findings recorded by
the Appellate Court are illegal in view of the well-settled
legal principles settled by the Hon'ble Apex Court in the
decisions relied upon by the learned counsel for the
applicant.
19. The findings recorded by the Appellate Court, holding
that as the heirs are not claiming under Section 5(11)(c) of
the Bombay Rent Act, the occupant would be entitled to
claim under Section 5(11)(c), are completely illegal, as the
provisions of the Rent Act do not apply to the subject
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premises. The Appellate Court has relied upon the decision
of the Gujarat High Court. However, our High Court has
taken a view that the tenancy rights cannot be bequeathed.
The view of our Court is upheld by the Hon'ble Apex Court
in the case of Vinod Chandra Kapadia, which holds that in
view of the bar under Section 43 of the Maharashtra
Tenancy and Agricultural Lands Act, it cannot be
bequeathed. Hence, in view of the well-settled legal
principles by the Hon'ble Apex Court, the reliance placed by
the Appellate Court on the Karnataka and Gujarat High
Court decision is erroneous.
20. Learned counsel for the applicant relies upon the
findings recorded by the Estate Officer, which deal with all
the factual aspects and the well-settled legal principles. The
applicant prayed for the eviction of the occupant and also
prayed for damages. The evidence of the officer of the
applicant and the valuer was rightly relied upon by the
Estate Officer to pass an order of damages. The occupant
failed to lead evidence to controvert the evidence in respect
of the claim for damages. Learned counsel for the applicant,
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therefore, submits that the Appellate Court has
misconstrued the facts and the evidence on record in
reversing the findings recorded by the Estate Officer. Hence,
in view of the facts of the case, the evidence on record and
the well-settled legal principles, the impugned order must be
quashed and set aside, and the Estate Officer's order must
be confirmed.
("OCCUPANT"):
21. Learned senior counsel for the occupant admits the
factual aspects regarding the original tenancy transferred to
Dr Bharucha and the occupant's claim based on the Will
executed by Dr Bharucha. Since the occupant was residing
along with Dr Bharucha and the tenancy rights were
bequeathed by executing a Will, the occupant becomes a
contractual tenant by operation of law and deeming
provision. The occupant has also paid rent for two years up
to 1997, which was accepted by the applicant. Hence, there
was no reason to issue a termination notice to the heirs and
legal representatives of Dr Bharucha and to call upon the
occupant to hand over possession. The heirs and legal
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representatives of Dr Bharucha never resided in the subject
premises. According to the learned senior counsel for the
respondent no.1 (occupant), there is a difference between a
'transfer' and 'transmission'. The two basic principles
regarding 'transfer' and 'transmission' are important factors
for deciding whether respondent no.1 (occupant) can be
termed as an unauthorised occupant as contemplated under
the said Act.
22. The occupant is a legitimate contractual tenant as a
legatee as per the Will executed by Dr Bharucha. The
occupant, i.e. respondent no.1, does not claim any rights
based on the transfer of tenancy. However, she claims
tenancy as transmitted by the testamentary bequest
governed by the Indian Succession Act, 1925, read with the
Transfer of Property Act, 1882. Hence, tenancy is conferred
upon respondent no.1 by operation of law. Thus, the
occupant, being the contractual tenant, was not prohibited
under the law from continuing her occupation. There was no
contract that the tenancy would come to an end after Dr
Bharucha's death. Hence, the tenancy continues after his
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death and the same stands transmitted to the occupant,
under the Will.
23. Learned senior counsel for respondent no.1 submitted
that unless there is an embargo under the provisions of the
said Act, the transmission of tenancy cannot be termed
unauthorised. Thus, the testamentary disposition in favour of
the occupant is permissible under the law. The clause 9 of
the terms and conditions of the tenancy merely prohibits or
proscribes assignment, sub-letting and parting with tenancy
rights. This clause only pertains to transfers inter-vivos and
not to transmissions by a valid Will. A transfer necessarily
implies a transaction between two living persons which
takes effect in their lifetime, whereas transmission only
takes effect on the death of the testator, either by
testamentary disposition in case of a Will or by personal law
of succession in case of intestacy. In the present case, the
Indian Succession Act applies as the parties are Parsis.
Thus, the two modes of the passing off of an interest in the
tenancy rights are qualitatively different and cannot co-exist
simultaneously. Under the Transfer of Property Act, the
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tenancy rights of a tenant are heritable in nature, and the
same may devolve either by testamentary bequest or on
intestacy. The reference to Section 108 (j) of the Transfer of
Property Act made by the learned counsel for the applicant
is not applicable to the case of transmission of tenancy on
the death of a tenant. Hence, in the present case, there is
no prohibition whatsoever to the bequest made by Dr
Bharucha in favour of the occupant.
24. To support his submission, learned senior counsel for
the occupant relied upon the decisions in the case of
Thakorlal Amratlal Vaidya Vs. Gujarat Revenue Tribunal and
Others14, N. Ramaiah Vs. Nagraj S. 15 and Gaiv Dinshaw
Irani and Ors Vs. Tehmtan Irani and Ors 16 and State of West
Bengal Vs Kailash Chandra 17 .
25. Learned senior counsel for the occupant submits that
the show cause notice does not deal with the point whether
respondent no.1 is an unauthorised occupant, and there are
no grounds for eviction. The Estate Officer records no valid
14 AIR 1964 GUJ 183
15 AIR 2001 Karnataka 395
16 (2014) 8 SCC 294
17 (1997) 2 SCC 287
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grounds for eviction. The notice is issued on the ground that
the occupant was not a Class-I heir of Dr Bharucha, and she
was not a close relative and was not residing in the subject
premises when Dr Bharucha died. It is the occupant's
contention that she, being the legatee under the Will, is
entitled to the tenancy rights. The occupant also claims to
have been residing in the subject premises since 1980 as a
family member of Dr Bharucha. To support his submissions,
learned senior counsel for the occupant relied upon the
decision of this Court in the case of Rajendra Chaubal Vs
Divisional Railway Manager18and the decision of the Hon'ble
Apex Court in the case of Minoo Balsara.
26. Learned senior counsel for the applicant submitted
that the findings of the Estate Officer are not sustainable as
continuous possession was not the ground taken by the
occupant. In the show-cause notice, there was no
discussion or reference to the earlier correspondence.
Hence, clause (9) of the terms of the tenancy was not
considered while issuing the show cause notice. There was
18 (2005) 3 ALL MR 245
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complete non-application of mind by the Estate Officer. In
the absence of any legitimate ground in the show cause
notice, the order of eviction by the Estate Officer would not
be sustainable.
27. Learned senior counsel for respondent no.1, relied
upon the evidence led on behalf of the applicant. He submits
that the evidence would show that the show cause notice
was issued on the ground that the occupant is class-I heir.
He submits that, since Dr Bharucha and the occupant are
Parsis; hence, there is no concept of class-I heir. Thus, the
reasons recorded by the Estate Officer in the show cause
notice by referring to the termination notice amount to a
complete non-application of mind. He submits that the facts
of the present case are covered under the provisions of the
Transfer of Property Act. Hence, the legal principles laid
down by the Hon'ble Apex Court in the case of
Vinodchandra Sakarlal Kapadia would not apply in the
present case.
28. Learned senior counsel for respondent no.1 submits
that the Will was probated on 3 rd September 1984, hence,
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based on the Will, the tenancy was validly transmitted in the
name of the occupant. He thus submits that in view of the
legal principles settled in the decision of Gaiv Dinshaw Irani
and Ors, the occupant cannot be termed as an unauthorised
occupant. The legal principles settled in the decision of
Gaiv Dinshaw Irani and Ors, would support the occupant's
contention that the present case is governed by the Transfer
of Property Act and in the absence of any valid termination,
the occupation of respondent no.1 cannot be termed as
unauthorised.
29. Learned senior counsel for the occupant submits that
the show cause notice is defective and no satisfactory
reason is recorded by the Estate Officer. There is no
reference to clause (9) of the terms and conditions of the
tenancy. Thus, the show cause notice cannot be the basis to
declare respondent no.1 as an unauthorised occupant. The
show cause notice is completely silent about the guidelines
or policy of the applicant. Hence, the reference to the
guidelines in the show cause notice would not be sufficient
to hold respondent no.1 as unauthorised occupant.
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Respondent no. 1 was not only residing in the subject
premises as a family member of Dr Bharucha, but she is
also the legitimate beneficiary under the Will. Thus, in view
of the infirmities in the show cause notice and the valid
transmission of the tenancy in the name of respondent no.1,
the findings recorded by the Estate Officer were rightly
reversed by the appeal court.
30. The Learned Estate Officer has misconceived the
notion of the personal law and has issued a show cause
notice to respondent no.1 on the ground that the class-I
heirs of Dr Bharucha. Since the present case relates to the
contractual tenancy under the Transfer of Property Act,
there is no restriction on transmission of the tenancy under
the applicable laws. Hence, the legal principles relied upon
by the learned counsel for the applicant in the cases of
Ashok Marketing Limited and Anr, Kaiser-I Hind Pvt Ltd and
Anr, Jain Ink Manufacturing Company, Crawford Bayleay
and Co, and Ors, are clearly distinguishable on the facts and
the points for consideration in the present case. The legal
principles settled in the decision of Minoo Framroze Balsara
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relied upon by the learned counsel for applicant are
misplaced as the judgment in the said case reiterates the
need to form an opinion that the occupant is an
unauthorised person. Thus, without the first precondition
being met, the question of the need to evict would not arise.
Hence, the amendment to Section (5) of the said Act,
namely, the Estate Officer 'shall evict' apart from being
academic, is brought into effect subsequent to the
proceedings before the Estate Officer, would not operate
retrospectively to the present case. Learned senior counsel
for respondent no.1 submits that in view of the different facts
in the decision of Vasant Pandit, Bhavarlal Shah, Zahid
Mazgaonwalla and Vinodchandra Kapadia dealing with the
respective State Legislations, would not apply to the facts of
the present case, which is governed under the Transfer of
Property Act.
31. Learned senior counsel for respondent no.1, submitted
that the decision in the case of New India Assurance
Company Ltd pertains to the binding effect of guidelines and
does not support the case of the applicant. The ratio laid
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down in the decision of the Syndicate Bank does not touch
upon the binding nature or otherwise of the guidelines and
simply finds fault with the occupant therein for not
challenging the order of the estate officer for failure to abide
by the guidelines. The decision in the case of Betty
Menezes, is clearly distinguishable in as much as the
tenancy therein was not claimed on the basis of a bequest.
The decision in the case of Jeevan Das was a case under
Section 106 of the Transfer of Property Act, stating that no
reasons need to be given while terminating a tenancy. So
far as the facts of the present case are concerned, the
occupant claims tenancy by operation of law and in any
case the principles of Section 106 of the Transfer of
Property Act do not apply to a show cause notice under the
said Act which requires expression of satisfaction by the
Estate Officer who ought to have decided the case of
transmission of tenancy as contended on behalf of the
occupant. Learned senior counsel for respondent no.1, thus,
submits that the findings recorded by the appeal court would
not require any interference by this court as the same has
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comprehensively analysed the law and the facts to hold that
respondent no.1 is a legitimate tenant.
CONSIDERATION OF THE CONTROVERSY IN BRIEF:
32. I have carefully perused the papers of the proceedings
and the well-established legal principles. The basic facts
that the original recorded tenant of the subject premises was
one Ms Tehmina Bharucha, and after her death, the tenancy
was transferred in the name of her husband, Dr. Darasahah
Bharucha, are not disputed. The occupant claims to be Dr
Bharucha's niece and to have been residing at the subject
premises along with him. She therefore claims that under
the Will, Dr Bharucha bequeathed the subject premises to
her. Hence, she claims to have become the tenant of the
subject premises. However, according to the applicant,
respondent no. 1 is an unauthorised occupant.
33. The record shows that Dr Bharucha had clarified that,
except for him, nobody else was claiming any right in
respect of the subject premises; accordingly, the terms of
tenancy were created between the applicant and Dr
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Bharucha. As per the terms and conditions, agreed between
the applicant and Dr Bharucha on 19 th May 1986, it was
agreed that the tenant, i.e. Dr Bharucha, shall not assign,
sub-let or part with possession of the subject premises or
any part thereof, even if allowed by the law, without the
previous consent in writing of the applicant. Hence, the
applicant refused to accept respondent no. 1 as a tenant
and issued the termination notice dated 25 th January 1997
addressed to the heirs and legal representatives of Dr
Bharucha. The notice was also addressed to the occupant,
calling upon her to vacate and hand over the subject
premises.
POINT FOR CONSIDERATION:
34. Thus, the point for consideration in this civil revision
application is whether in view of the well-established legal
principles applicable to the public premises, and the terms
and conditions of the contractual tenancy, respondent no. 1
can claim any right in the subject premises based on the Will
executed by Dr Bharucha or on the ground that the tenancy
is conferred upon her as she was residing along with Dr
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Bharucha, i.e. the last recorded tenant at the time of his
death.
FINDINGS BY THE ESTATE OFFICER AND THE
APPELLATE COURT:
35. The Estate Officer held that after the death of the
original tenant, the tenancy was transferred to her husband,
i.e. Dr Bharucha, on the terms and conditions that prohibited
him from transferring, assigning, subletting or parting with
possession of the subject premises without prior written
consent of the applicant. Hence, the tenancy right
bequeathed by way of Will was in breach of the terms and
conditions of the transfer of the tenancy in favour of the last
recorded tenant, i.e. Dr Bharucha. Hence, in the absence of
prior written consent by the applicant, respondent no. 1 was
not recognised as a tenant. Since the Will was executed in
breach of the terms and conditions of the tenancy, the
applicant terminated the tenancy by issuing the termination
notice to the heirs and legal representatives of Dr Bharucha.
Hence, respondent no. 1 was in an unauthorised occupation
and thus was held liable to be evicted.
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36. The appellate court has relied upon the decision of the
Karnataka High Court in N. Ramaiah. In the said decision,
one of the points for consideration was whether a bequest of
a property under a Will is a transfer of the property. It was
held that the Transfer of Property Act deals with transfers
inter vivos, that is, the act of a living person, conveying a
property in present or in future, to one or more living
persons and that the provisions of the Transfer of Property
Act are inapplicable to testamentary successions which are
governed by Indian Succession Act, 1925.
37. The appellate court has relied upon the decision of the
Gujarat High Court in Thakorelal Amratlal Vaidya. The short
question that arose in the said decision was whether the
heirs of a person who is a deemed tenant under Section 4 of
the Bombay Tenancy and Agricultural Lands Act, 1948, are
entitled to inherit the tenancy on the death of such person
under the provisions of the Tenancy Act as it stood prior to
its amendment by Bombay Act 13 of 1956 or whether the
tenancy comes to an end on the death of such person. In
the said decision, it was held that a contractual tenancy
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under the Transfer of Property Act is heritable not because
of Section 111 of the Transfer of Property Act but because it
constitutes an estate or interest in the land which passes on
to the heirs by the operation of the Law of Succession.
Section 111 of the Transfer of Property Act merely provides
various modes for the determination of a contractual
tenancy, but so long as a contractual tenancy is not
determined by any of the modes provided by that Section
and continues to subsist, it can always devolve by
succession, testate or intestate.
38. Thus, the appellate court held that the leases
pertaining to the public premises are governed by the
Transfer of Property Act, which does not put an embargo on
the testamentary disposition of the tenancy rights. Hence, it
is held that in view of the Will executed by Dr Bharucha,
respondent no. 1 cannot be said to be in unauthorised
occupation. It is further held that the Estate Officer has not
recorded satisfaction for eviction in either the show cause
notice or the eviction order. Hence, the appellate Court set
aside the Estate Officer's order.
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LEGAL POSITION:
39. In Bhavarlal Labhchand Shah, the question was
whether the tenant of a non-residential premises continuing
in occupation after the period of the contract is over, can
bequeath his right of occupation by a Will. The Apex Court
negatived such a contention. The Hon'ble Apex Court in the
decision of Bhavarlal Labhchand Shah held that on a true
interpretation of the provisions of the Bombay Rent Act a
bequest of the right to the tenancy in respect of premises
referred to in Section 5(11)( c)(ii) of the Act after the
determination of the lease, which is protected by the Act
cannot be made under a Will in favour of a person not
referred to in that sub-clause. The view of this Court in the
case of Anant Trimbak Sabnis v.Vasant Pratap Pandit 19
holding that the words "to assign or transfer in any other
manner his interest therein" in Section 15(1) of the Rent Act
had the effect of prohibiting the disposition of the tenancy
right by a Will in the absence of a contract to the contrary is
approved by the Apex Court in Bhavarlal Labhchand Shah.
19 1979 SCC OnLine Bom 90
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The decision of this Court in Anant Trimbak Sabnis was
approved by the Apex Court in Vasant Pratap Pandit. The
legal principles settled in the decision of Bhavarlal
Labhchand Shah are summarised and affirmed in the recent
decision of Vinodchandra Kapadia.
40. The Apex Court inVinodchandra Sakarlal Kapadia,
observed that various States have enacted legislations
seeking to invalidate transfers of agricultural lands made by
tribals or socially disadvantaged persons to non-tribals or
transferees from non-backward communities, which
legislations have gone to the extent of nullifying transactions
entered into even before the legislations had come into
effect. It is held that the validity of these legislations has
been sustained by the Apex Court. It is observed that the
common thread running through the various decisions is to
construe the prohibition against transfer appearing in
various statutes in keeping with the legislative intent, and
where the object of the legislation is to prevent a mischief
and to confer protection on the weaker sections of the
society, the Court would not hesitate in placing an extended
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meaning, even a stretched one, on the word, if in doing so
the statute would succeed in attaining the object sought to
be achieved. After examining the provisions of the
Maharashtra Tenancy and Agricultural Lands Act for
considering the legislative scheme, it is held in paragraph 27
as under:
"27. A transfer inter vivos would normally be for
consideration where the transferor may get value for the
land but the legislation requires previous sanction of the
authority concerned so that the transferee can step into
the shoes of the transferor, and carry out all the
obligations as a part of legislative scheme must be
discharged. Thus, the screening whether a transferee is
eligible or not, can be undertaken even before the actual
transfer is effected. As against this, if a testamentary
disposition which does not have the element of
consideration is to be permitted, and if it is assumed that
Sections 43 and 63 of the Act do not get attracted, the
land can be bequeathed to a total stranger and a non-
agriculturist who may not cultivate the land himself; which
in turn may then lead to engagement of somebody as a
tenant on the land. The legislative intent to do away with
absentee landlordism and to protect the cultivating
tenants, and to establish direct relationship between the
cultivator and the land would then be rendered otiose.
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The construction put on the expression "assignment"
appearing in Section 43, therefore, has to be consistent
with the legislative scheme. In the context of the entire
scheme, the term "assignment" used in Section 43 of the
Act must include testamentary disposition as well. By
adopting such construction, in keeping with the law laid
down by this Court, the statute would succeed in attaining
the object sought to be achieved. On the other hand, if it
is held that the testamentary disposition would not get
covered by the provisions of Section 43, a gullible person
can be made to execute a testament in favour of a
person who may not fulfil the requirements and be
eligible to be a transferee in accordance with law. This
may not only render the natural heirs of the tenant
without any support or sustenance, but may also have
serious impact on agricultural operations."
41. While dealing with the submissions that any prohibition
in the State enactment inconsistent with the principles
emanating from the Central legislation, namely, the
Succession Act, 1925, must be held to be void, the Hon'ble
Apex Court in Vinodchandra Sakarlal Kapadia, held in
paragraph 35 as under:
"35. If the provisions referred to in Section 43 of the Act and
allied provisions are considered in light of the settled
principles extracted earlier, it emerges that the primary
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concern of those provisions is to see that the legislative
scheme of granting protection to persons from
disadvantaged categories and conferring the right of
purchase upon them, and thereby ensure direct relationship
of a tiller with the land. The provisions, though lay down a
norm which may not be fully consistent with the principles of
the Succession Act, are principally designed to attain and
subserve the purpose of protecting the holdings in the hands
of disadvantaged categories. The prohibition against
transfers of holding without the previous sanction of the
authorities concerned, is to be seen in that light as furthering
the cause of legislation. Even if, by the process of
construction, the expression "assignment" is construed to
include testamentary disposition, in keeping with the settled
principles, the incidental encroachment cannot render the
said provisions invalid. In pith and substance, the legislation
and the provisions concerned are completely within the
competence of the State Legislature and by placing the
construction upon the expression "assignment" to include
testamentary disposition, no transgression will ensue."
emphasis applied
42. In the decision of Ashoka Marketing Ltd., the question
that arose for consideration was whether the provisions of
the Public Premises Act would override the provisions of the
Delhi Rent Control Act, 1958, in relation to premises which
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fall within the ambit of both the enactments. It was held that
the Rent Control Act can be said to be a special statute
regulating the relationship of landlord and tenant in the
Union territory of Delhi. The Public Premises Act makes
provision for a speedy machinery to secure the eviction of
unauthorised occupants from public premises. The Public
Premises Act must prevail over the Rent Control Act. It is
further held that the Public Premises Act has been enacted
with a view to provide for eviction of unauthorised occupants
from public premises, which shows that the Public Premises
Act has been enacted to deal with the mischief of rampant
unauthorised occupation of public premises by providing a
speedy machinery for the eviction of persons in
unauthorised occupation and safeguard public interest by
making available for public use premises belonging to
Central Government, companies in which the Central
Government has substantial interest, corporations owned or
controlled by the Central Government and certain
autonomous bodies and to prevent misuse of such
premises.
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43. In the decision of the Hon'ble Apex Court in the case
of Banatwala & Co. v. LIC20, the question arose whether a
tenant's application for fixation of standard rent would get
ousted from the Maharashtra Rent Control Act ("MRC Act").
The respondent therein, i.e. LIC, contended that what they
were charging was permissible increases, whereas the
appellant therein contended that what was charged was in
excess of what should be the standard rent, and for that
purpose, it had filed an application for the fixation of
standard rent under the MRC Act. The legal principles
settled in Ashoka Marketing with regard to the controversy
with respect to the subject of eviction of the unauthorised
occupants from the public premises in context with Delhi
Rent Act and the Public Premises Act was noted, where it
was held that the proceedings under the Public Premises
Act were held to be valid and legal, and not those under the
Delhi Rent Control Act. The legal principles in Kaiser-I-Hind
(P) Ltd and Crawford Bayley & Co. were relied upon and the
provisions of the Public Premises Act vis-à-vis the Bombay
Rent Act and the MRC Act on the issue of eviction of
20 (2011) 13 SCC 446
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unauthorised occupants from public premises were
considered as under:
"48. Before we deal with the rival submissions on the
maintainability of the standard rent application, we may note
that with respect to the aspect of eviction of unauthorised
occupants from the public premises, it is now well settled
that the Public Premises Act will apply and not the Bombay
Rent Act or the subsequent MRC Act.
48.1. In Kaiser-I-Hind (P) Ltd.v. National Textile Corpn.
(Maharashtra North) Ltd.[(2002) 8 SCC 182] one of the
questions before the Constitution Bench was whether the
provisions of the Bombay Rent Act having been re-enacted
after 1971 by the State Legislature with the assent of the
President will prevail over the provisions of the Public
Premises Act by virtue of Article 254(2) of the Constitution.
The Court noted that although the Public Premises Act
received the assent of the President on 23-8-1971, in view
of Section 1(3) of the Public Premises Act, it is deemed to
have come into force from 16-9-1958. On the other hand,
the duration of the Bombay Rent Act was extended by
Maharashtra Act 12 of 1970. Therefore, the Court held
specifically in para 40 of its judgment that Article 254(1) was
the relevant one in the present case, and to the extent of
repugnancy, the State law will not prevail under Article
254(1), and the law made by Parliament shall hold good.
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48.2.Between the Public Premises Act and the MRC Act
this Court held in Crawford Bayley & Co.v.Union of India
[(2006) 6 SCC 25] that to the extent specific provisions were
made in the Public Premises Act for eviction of unauthorised
occupants, that Act will apply with respect to the premises of
State Bank of India which were in dispute in that matter and
not the MRC Act."
emphasis applied
44. In Banatwala & Co. v. LIC, the decision of a three-
judge bench in Jain Ink Mfg. Co. was also referred to and
relied upon where the provisions of the Public Premises Act,
were considered in the light of those of the Delhi Rent
Control Act, 1958 and the Slum Areas (Improvement and
Clearance) Act, 1956. In that matter, the challenge to the
applicability of the Public Premises Act was rejected by
holding that the Public Premis said Act es Act, as compared
to the Rent Act, which has a very broad spectrum, is a
special Act and overrides the provisions of the Rent Act. It
was thus concluded in Banatwala & Co. in paragraph 99 as
under:
"99. In the circumstances, we hold as follows:
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(a) The provisions of the Maharashtra Rent Control Act,
1999 with respect to fixation of standard rent for
premises, and requiring the landlord not to cut off or
withhold essential supply or service, and to restore the
same when necessary, are not in conflict with or
repugnant to any of the provisions of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971.
(b) The provisions of the Public Premises Act, 1971 shall
govern the relationship between the public undertakings
covered under the Act and their occupants to the extent
they provide for eviction of unauthorised occupants from
public premises, recovery of arrears of rent or damages
for such unauthorised occupation, and other incidental
matters specified under the Act.
(c) The provisions of the Maharashtra Rent Control Act,
1999 shall govern the relationship between the public
undertakings and their occupants to the extent this Act
covers the other aspects of the relationship between the
landlord and tenants, not covered under the Public
Premises Act, 1971.
(d) The application of the appellant and similar
applications of the tenants for fixation of standard rent or
for restoration of essential supplies and services when
necessary, shall be maintainable under the Maharashtra
Rent Control Act, 1999."
emphasis applied
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45. This Court, in the decision of Zahid Ahmedali
Mazgaonwalla relied upon the legal principles in the
decision of Vasant Pandit and held that tenancy rights under
the Rent Act cannot be bequeathed, and an heir of the
deceased tenant cannot claim exclusive tenancy rights,
especially in the light of section 5(11)(c) of the Bombay Rent
Act. This Court, in the decision of Bettye Menezes, was
dealing with a challenge to the order of eviction and
damages passed by the Estate Officer under the Public
Premises Act, which was confirmed in an appeal by the civil
court. The facts of the said case were similar to those of the
present case, where the occupant claimed tenancy rights on
the grounds that she was residing with the last recorded
tenant at the time of his death, and LIC had also accepted
rent from her. In the said case, the last recorded tenant had
executed a Will, and a Testamentary Petition was filed for
probate. The Testamentary Petition was converted into a
suit, and consent terms were signed by the occupant, her
husband and three children on one hand and the executors
on the other hand. Thus, the occupant claimed tenancy on
the ground that after the death of the last recorded tenant,
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she had become the tenant of the subject premises. Even in
the said case, the occupant and the last recorded tenant
were Parsis. This Court referred to and relied upon the legal
principles settled by the Apex Court in Ashok Marketing Ltd
and Banatwala and Company and held that a perusal of the
definition under Section 2(g) of the said Act shows that the
Act recognizes 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. It was thus held that the said Act
recognises only two categories, namely, authorised
occupation and unauthorised occupation. Therefore, in the
light of the well-established legal principles in Ashok
Marketing Ltd and Banatwala and Company, this Court held
that the occupant in the said case could not claim to have
become a tenant.
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46. In the decision of New India Assurance Co. Ltd., the
Apex Court was dealing with the issue of leading evidence
in a proceeding under the Public Premises Act. Hence, the
legal principles settled in the said decision are not relevant
to the facts of the present case for deciding the issue
involved in the present case.
47. In the decision of Syndicate Bank, the guidelines relied
upon were not issued in exercise of any statutory power
under the Public Premises Act or any other statute. It was
held that even if there was a violation or non-compliance
with the guidelines, the only "remedy" of any person
complaining of non-compliance with such guidelines is to
bring such violation to the notice of a higher authority. It was
therefore held that the enforcement of any right or exercise
of any power under the Public Premises Act cannot be set at
naught by relying upon or referring to the guidelines issued
by the Central Government. The relevant conclusion in
paragraph 12 reads as under:
"12. We may however add that this order should not be
construed as laying down a proposition that the public
sector undertakings and financial institutions to whom the
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guidelines were addressed, could wilfully ignore or violate
the same. Whenever any action is proposed to be taken
under the Public Premises Act, the authorities concerned
are bound to keep the said guidelines in view, to the
extent possible on the facts and circumstances of the
respective case. If any public sector undertaking or
financial institution is of the view that any of the
guidelines are contrary to the provisions of the Act or
otherwise unworkable or impractical, they can also seek
modification of the guidelines or have their own internal
guidelines. What is held in this case is that an
unauthorised occupant or tenant against whom action is
initiated under the Public Premises Act, cannot resist the
proceedings on the ground of non-compliance with the
said guidelines."
emphasis applied
48. The Hon'ble Apex Court in Jiwan Dass held as under
on the issue of termination of tenancy under the Public
Premises Act:
"4. Section 106 of the T.P. Act does indicate that the
landlord is entitled to terminate the tenancy by giving 15
days' notice, if it is a premises occupied on monthly
tenancy and by giving 6 months' notice if the premises
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are occupied for agricultural or manufacturing purposes,
and on expiry thereof proceedings could be initiated.
Section 106 of the T.P. Act does not contemplate of
giving any reason for terminating the tenancy. Equally the
definition of the public premises 'unauthorised
occupation' under Section 2( g) of the Act postulates that
the tenancy "has been determined for any reason
whatsoever". When the statute has advisedly given wide
powers to the public authorities under the Act to
determine the tenancy, it is not permissible to cut down
the width of the powers by reading into it the reasonable
and justifiable grounds for initiating action for terminating
the tenancy under Section 106 of the T.P. Act. If it is so
read Section 106 of T.P. Act and Section 2( g) of the Act
would become ultra vires. The statute advisedly
empowered the authority to act in the public interest and
determine the tenancy or leave or licence before taking
action under Section 5 of the Act. If the contention of the
appellant is given acceptance he would be put on a
higher pedestal than a statutory tenant under the Rent
Act. Take for example that a premises is let out at a low
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rent years back like the present one. The rent is
unrealistic. With a view to revise adequate market rent,
tenant became liable to ejectment. The contention then
is, action is violative of Article 21 offending right to
livelihood. This contention too is devoid of any substance.
An owner is entitled to deal with his property in his own
way profitable in its use and occupation. A public
authority is equally entitled to use the public property to
the best advantage as a commercial venture. As an
integral incidence of ejectment of a tenant/licensee is
inevitable. So the doctrine of livelihood cannot
indiscriminately be extended to the area of commercial
operation. Therefore, we do not find any substance in the
contentions of the appellant. The appeal is accordingly
dismissed. No costs."
49. This Court, in the decision of Minoo Framroze Balsara,
by relying upon the legal principles settled by the Hon'ble
Apex Court in the decision of Ashok Marketing Ltd., held
that the provisions of the Bombay Rent Act would not prevail
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in the State of Maharashtra over those of the Public
Premises Eviction Act, 1971.
50. Learned senior counsel for respondent no. 1 relied
upon the decision of the Hon'ble Apex Court in the case of
Gaiv Dinshaw Irani. In this case, the appellants had claimed
that leasehold tenancy rights can be bequeathed as against
the findings of the trial court, which held that "it is a well-
established principle that tenancy rights cannot be
bequeathed". The issue involved was regarding a suit
premises owned by the local authority of Mumbai, which
were subject to the Bombay Rent Act. The Apex Court
discussed the decisions in Bhavarlal Labchand Shah,
Vasant Pandit, and the State of West Bengal Vs Kailash
Kapur, and held that, in general, tenancies are to be
regulated by the governing legislation, which favours that
tenancy be transferred only to family members of the
deceased original tenant. However, in light of the majority
decision of the Constitution Bench inGian Devi Anand
v.Jeevan Kumar21, it was held that in absence of any specific
provisions, general laws of succession to apply, which
21 (1985) 2 SCC 683
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position is further cemented by the decision in State of W.B.
v. Kailash Chandra Kapur which has allowed the disposal of
tenancy rights of Government-owned land in favour of a
stranger by means of a Will in the absence of any specific
clause or provisions. However, in State of W.B. v. Kailash
Chandra Kapur, the lease was granted for 999 years, and
the issue was not regarding eviction under the Public
Premises Act. Thus, the legal principles settled were with
reference to the terms and conditions of the lease in that
case.
51. While discussing the facts in Gaiv Dinshaw Irani, it
was held by the Apex Court that the tenancies owned by
BMC and allegedly bequeathed by means of a Will as a
residuary legatee in 1946, appeared to be permissible in the
light of the Constitution Bench decision. However, as the
legal position regarding the permissibility of bequeathing a
tenancy by Will in 1946 was not decided, it was held that the
transfer of tenancy by BMC based on consent letters was
illegal and void ab initio.
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52. Even in Gian Devi Anand, the question that arose for
consideration was whether, under the Delhi Rent Control
Act, 1958, the heirs of a deceased tenant whose contractual
tenancy in respect of commercial premises has been
determined are entitled to the same protection against
eviction afforded by the Act to the tenant. It was held that
the tenant, even after the determination of the tenancy,
continues to have an estate or interest in the tenanted
premises, and the tenancy rights, both in respect of
residential premises and commercial premises, are
heritable. It was further held that in the absence of any
provision regulating the right of inheritance, and the manner
and extent thereof and in the absence of any condition being
stipulated with regard to the devolution of tenancy rights on
the heirs on the death of the tenant, the devolution of
tenancy rights must necessarily be in accordance with the
ordinary law of succession.
53. The learned senior counsel for respondent no. 1, by
relying upon the decision in the case of Gaiv Dishaw Irani,
submitted that the legal principles settled in the said
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decision support the proposition that the present case,
governed by the Transfer of Property Act, is qualitatively
different from those cases governed by the provisions of the
State Rent Legislation. The legal principles settled in Gaiv
Dishaw Irani, as discussed above, do not pertain to the
tenancy covered under the Public Premises Eviction Act.
54. In the decision of Rajendra Chaubal, this court held
that the show cause notice not giving reasons for finding the
addressee as unauthorized occupant, and the grounds of
satisfaction to evict him, the order of eviction passed by the
Estate Officer would be liable to be quashed.
ANALYSIS AND CONCLUSIONS:
55. In the present case, one of the objections to challenge
the show cause notice issued by the Estate Officer was on
the ground that Dr Bharucha died without leaving behind
any Class-I heir, which shows non-application of mind, as
the parties are Parsis and there is no concept of Class-I
heir. However, the show cause notice is also issued on the
ground that the occupant's claim of tenancy, on the ground
of being a distant relative of Dr Bharucha, is untenable and
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unacceptable. Thus, the applicant refused to recognise
respondent no. 1 as a tenant. According to the applicant
respondent no. 1 was in an unauthorised occupation of the
subject premises; hence, on the death of Dr Bharucha, who
was the last recorded tenant, termination notice was issued
to the heirs and legal representatives, that is, the executors
of the Will of Dr Bharucha, and respondent no. 1, that is, the
occupant, was called upon to vacate the subject premises.
The satisfaction for the eviction of respondent no. 1 is thus
recorded in the show cause notice, and only the reference to
the Class-I heir of Dr Bharucha would not make the show
cause notice invalid. The Estate Officer held that Dr
Bharucha executed the Will in favour of respondent no. 1 in
breach of the terms and conditions of the tenancy; hence,
respondent no. 1 was not entitled to claim tenancy through
Dr Bharucha and respondent no. 1 was an unauthorised
occupant. Thus, satisfaction for eviction was recorded in the
show cause notice and the eviction order. Hence, the legal
principles settled in Rajendra Chaubal would not apply to
the facts of the present case.
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56. Another reason to challenge the show-cause notice
and the eviction order on the ground that the show-cause
notice is completely silent about the guidelines or policy of
the applicant, also has no substance. In the decision of
Syndicate Bank, the Apex Court held that the enforcement
of any right or exercise of any power under the Public
Premises Act cannot be set at naught by relying upon or
referring to the guidelines issued by the Central
Government. It was held that an unauthorised occupant or
tenant against whom action is initiated under the Public
Premises Act cannot resist the proceedings on the ground of
non-compliance with the guidelines.
57. There is no substance in the submissions on behalf of
the occupant that, since she was residing along with Dr
Bharucha and the tenancy rights were bequeathed by
executing a Will, the occupant becomes a contractual tenant
by operation of law and deeming provision. There is also no
substance in the submission that the occupant has also paid
rent for two years up to 1997, which was accepted by the
applicant; hence, she cannot be evicted. In similar facts, this
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court in the decision of Bettye Menezes, referred to and
relied upon the legal principles settled by the Apex Court in
Ashok Marketing Ltd and Banatwala and Company and held
that the occupation by any person of the public premises
without authority, whether claimed by way of grant or any
other mode of transfer, would be an unauthorised
occupation. Therefore, in the light of the well-established
legal principles in Ashok Marketing Ltd and Banatwala and
Company, this Court held that the occupant in the said case
could not claim to have become a tenant.
58. The decision in Gaiv Dinshaw Irani, relied upon by the
learned senior counsel for respondent no. 1, involves the
issue regarding a suit premises owned by the local authority
of Mumbai, which were subject to the Bombay Rent Act. In
view of the well-settled legal principles as discussed above
with respect to the aspect of eviction of unauthorised
occupants from the public premises, the Public Premises
Eviction Act will apply and not the Bombay Rent Act or the
subsequent MRC Act. Hence, the decision in the case of
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Gaiv Dinshaw Irani would not be of any assistance to the
arguments made on behalf of respondent no. 1.
59. In the present case, after the death of the original
recognised tenant, the tenancy was transferred to her
husband, i.e. Dr Bharucha, on the terms of the tenancy
recorded in writing on 19th May 1986, signed by him for
acceptance of the terms and conditions. There is no dispute
that Dr Bharucha was therefore occupying the subject
premises in view of the authority granted by the applicant
under the terms and conditions recorded in writing on 19 th
May 1986, thereby transferring the tenancy to him. Clause 9
of the terms and conditions provided that the tenant, i.e. Dr
Bharucha, shall not assign, sub-let, or part with possession
of the subject premises without prior written consent of the
applicant, even where allowed by law. Admittedly, the
applicant had never consented to any transfer or
assignment of any nature whatsoever. Thus, the grant of
authority to Dr Bharucha to occupy the subject premises is a
contractual tenancy on the terms and conditions recorded in
writing, putting an embargo on transfer, assign, sublet or
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part with possession without prior consent of the applicant.
In view of the correspondence between the applicant and Dr
Bharucha before the transfer of tenancy to him, he had
confirmed in writing that, except for him, no one was
occupying the subject premises. Admittedly, respondent no.
1 is not the immediate family member of Dr Bharucha.
However, she claims rights based on the Will.
60. In the present case, clause 9 of the terms of the
contract to transfer the tenancy to Dr Bharucha contained a
covenant that prevented him, i.e. the last recorded tenant,
from assigning, sub-letting, or parting with possession of the
subject premises, even if permitted by law.
61. If a testamentary disposition of a public premises
contrary to the contract is permitted, the property can be
bequeathed to a total stranger, who may not fulfil the
requirements to be recognised as a tenant of the public
premises and be eligible to be a transferee without the
consent of the owner/authority of the public premises and
may also render the natural heirs of the tenant without any
support or sustenance. It is a well-established legal principle
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that the Public Premises Eviction Act provides for a speedy
mechanism to secure the eviction of unauthorised
occupants from public premises, which shows that the
Public Premises Act has been enacted to deal with the
mischief of rampant unauthorised occupation of public
premises by providing a speedy machinery for the eviction
of persons in unauthorised occupation and safeguard public
interest by making available for public use premises
belonging to Central Government, companies in which the
Central Government has substantial interest, corporations
owned or controlled by the Central Government and certain
autonomous bodies and to prevent misuse of such
premises. Thus, by applying the principles settled in
Vinodchandra Kapadia, the assignment made in the present
case, by testamentary disposition, is in breach of the terms
of the transfer of the tenancy in favour of the last recorded
tenant and thus is not valid. Hence, respondent no. 1 would
not be entitled to claim any tenancy rights based on the Will.
62. The statute empowers the applicant to act in the public
interest and determine the tenancy before taking action
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under Section 5 of the said Public Premises Act. In view of
the well-established legal principles discussed above,
Section 106 of the Transfer of Property Act does not
contemplate giving any reason for terminating the tenancy.
The definition of 'unauthorised occupation' under Section
2(g) of the Act postulates that the tenancy "has been
determined for any reason whatsoever". In the present case,
the authority to occupy granted solely to Dr. Bharucha
ended on his death. His heirs and legal representatives
have not claimed any tenancy in their favour on his death.
63. Hence, the occupant is not entitled to claim any right
under the Will. The provisions of the Rent Act do not apply
to the present case. Hence, by relying upon the provisions
of the Rent Act, the applicant is not entitled to claim tenancy
on the ground that she was residing with Dr Bharucha at the
time of his death.
64. The reasons in the impugned order on the ground of
defective show cause notice and by relying upon the
decisions of the Gujarat High Court and the Karnataka High
Court would not be sustainable in view of the well-
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established legal principles of this Court and the Apex Court
as discussed in the preceding paragraphs.
65. The Estate Officer relied upon the evidence led by the
officer of the applicant and the valuer for quantifying the
damages, as no adverse evidence was brought on record by
respondent no.1. The appellate Court set aside the Estate
Officer's order by holding that the show cause notice was
defective and thus eviction order was also defective. Hence,
it was held that the order of damages was not sustainable.
The appellate Court has not recorded any reasons to
reverse the findings of the Estate Officer for quantifying the
damages. There is nothing shown to controvert the
applicant's evidence and the valuer's evidence in support of
the claim for damages. For want of any adverse evidence, I
do not see any reason to disturb the Estate Officer's findings
on quantifying damages.
66. Hence, for the reasons recorded above, the impugned
order would not be sustainable. The order of the Estate
Officer must be confirmed. The Civil Revision Application is
allowed by passing the following order:
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a) The judgment and order dated 2nd May 2009 passed
by the City Civil Court Mumbai in Miscellaneous
Appeal No. 149 of 2008 is quashed and set aside.
Miscellaneous Appeal No. 149 of 2008 is dismissed.
b) The judgment and order dated 29 th May 2008, passed
by the Estate Officer in Case Nos. 25 and 25A of
1999, is confirmed.
(GAURI GODSE, J.)
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