Batliboi & Co. Ltd. vs Life Insurance Corporation Of ...
2011 Latest Caselaw 2316 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CM(M) Nos.1349/2007, 1355/2007 & 1612/2007

%                                                   April 29th, 2011

1.   CM(M) No.1349/2007

BATLIBOI & CO. LTD.                                  ...... Petitioner
                      Through:   Mr. Jayant Bhushan, Sr. Adv. with
                                 Mr. Arun K.Beriwal, Adv.

                      VERSUS

LIFE INSURANCE CORPORATION OF INDIA LTD. & ANR. ..... Respondents
                    Through:  Mr. Kamal Mehta with
                              Mr. Suddeep Singh, Advs.



2.   CM(M) No.1355/2007

BATLIBOI & CO. LTD.                                  ...... Petitioner
                      Through:   Mr. Jayant Bhushan, Sr. Adv. with
                                 Mr. Arun K.Beriwal, Adv.

                      VERSUS

LIFE INSURANCE CORPORATION OF INDIA LTD. & ANR. ..... Respondents
                    Through:  Mr. Kamal Mehta with
                              Mr. Suddeep Singh, Advs.



3.   CM(M) No.1612/2007

BATLIBOI & CO. LTD.                                 ...... Petitioner
                      Through:   Mr. Jayant Bhushan, Sr. Adv. with Mr.
                                 Arun K.Beriwal, Adv.


                      VERSUS

LIFE INSURANCE CORPORATION OF INDIA LTD. & ANR. ..... Respondents
                    Through:  Mr. Kamal Mehta with
                              Mr. Suddeep Singh, Advs.
CM(M) Nos.1349/2007, 1355/2007 & 1612/2007                       Page 1 of 5
 CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?

 2.   To be referred to the Reporter or not?

 3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.          These three petitions (CM(M) Nos.1349/2007, 1355/2007 &

1612/2007) are being disposed of by this Common Order, inasmuch as, there

are more or less identical facts and parties are also the same. Reference for

the sake of convenience is therefore being made to the facts in CM(M)

No.1349/2007.

2.          The challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order dated 14.9.2007 passed by the

Additional District Judge in appeal under Section 9(1) of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971 and which appeal was filed

against the order of recovery of damages dated 17.4.2004 passed by the

Estate Officer with respect to the premises admeasuring 2353 square feet on

fourth floor in the building known as "Jeevan Vihar" situated at 3, Parliament

Street, New Delhi. The period in question is 16.5.1997 to 15.3.2004.

3.          I need not elaborate in detail the facts because I feel that the

petitions can be disposed of in narrow parameters in exercise of my

jurisdiction under Article 227 of the Constitution of India which remedy is not

CM(M) Nos.1349/2007, 1355/2007 & 1612/2007                         Page 2 of 5
 only extraordinary, but also discretionary.     Powers are exercised under

Article 227 of the Constitution of India only when the judgment/order of the

Court below shocks the judicial conscience or is grossly illegal or causes

grave irreparable injustice.   Merely because two views are possible, this

Court does not even interfere in appeal against an impugned order and

therefore much less so in the jurisdiction under Article 227 of the

Constitution of India.

4.          Learned counsel for the respondent has urged before me that in

the present case, no evidence whatsoever was led before the Estate Officer

on behalf of the petitioner in this Court, who was the respondent in the

proceedings before the Estate Officer. It is argued that, therefore, on the

one hand, there is no evidence led whatsoever by the petitioner before the

Estate Office, and on the other hand, evidence was led by the respondent

before the Estate Officer whereby with respect to a premises on the ground

floor, rent was shown to be of Rs.70/- sq.ft., and respondent only claimed

instead of Rs.70/- per sq. ft., a lesser rent of Rs.45/- per square feet,

inasmuch as, the subject premises were not on the ground floor but on the

second floor. Therefore, it is canvassed that there is some valid basis for

grant of the mesne profits at the lesser rate claimed instead of the higher

rate of the premises on the ground floor of the same building as per the

lease deed which was filed by the respondent.

5.          In my opinion, once the petitioner failed to lead evidence to

discharge the onus of proof, which shifted upon it, then, the Estate Officer
CM(M) Nos.1349/2007, 1355/2007 & 1612/2007                      Page 3 of 5
 was fully justified in accepting the evidence as filed by and relied upon by

the respondent.      The Appellate Court has also, therefore, committed no

illegality in sustaining the order of the Estate Officer by accepting charges of

the subject premises @ Rs.45 per sq. ft.

6.            Learned counsel for the petitioner places reliance upon the

decision in the case of Jamshed Hormusji Wadia vs. Board of Trustees,

Port of Mumbai and Another; (2004) 3 SCC 214, and paras 17 to 20

thereof, to canvass that the State cannot act in a maverick fashion, and

there has to be reasonableness in the actions of the respondent with respect

to eviction of tenants from the premises. I may note that in this regard there

were various guidelines which have been issued by the Government, last of

the guidelines being 30th May, 2002, as per which, the tenants could not be

evicted when they were tenants of the State, except in terms of the

guidelines.

7.            This issue with respect to applicability of the relevant guidelines

is no longer res integra, inasmuch as, the Supreme Court has decided New

India Assurance Company Ltd. vs. Nusli Neville Wadia & Anr.; (2008)

3 SCC 279, and the ratio of which has been upheld in the very recent

decision in the case of Syndicate Bank vs. Ramachandran Pillai & Ors.;

2011 (1) SCALE 368, that the enforcement of any right under the Public

Premises Act(Eviction of Unauthorized Occupants) Act,1971 cannot be set at

naught by relying upon the aforesaid guidelines which are not statutory in

character. These decisions of the Supreme court hold that any guidelines,
CM(M) Nos.1349/2007, 1355/2007 & 1612/2007                           Page 4 of 5
 which are against the provisions of the Public Premises Act, are not binding

upon the Governmental Authorities. In my opinion, therefore, the decision in

the case of Jamshed Hormusji Wadia (supra) as cited by counsel for the

petitioner will not apply, more so, because, the present is not the case with

respect to eviction of the petitioner from the premises and against which

protection is sought of the Court.

8.          In view of the above, and particularly the fact that the petitioner

failed to discharge the onus of proof, which shifted upon it, and also the

decisions in the case of New India Assurance Company Ltd. and

Syndicate Bank (supra), there is no merit in this petition which is

therefore dismissed leaving the parties to bear their own costs.




APRIL 29, 2011                                        VALMIKI J. MEHTA, J.

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