Babubhai M. Chinai Residing At vs Sindhu Resettlement Corporation on 12 January, 2009

Bombay High Court

Bench: A.M. Khanwilkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 5148 of 1993

1. Pradeep Babubhai Chinai,

2. Ashok Babubhai Chinai,

both of Bombay Indian-

Inhabitants, being heirs and

legal representatives of the deceased

Babubhai M. Chinai residing at

St. Jame's Court,

Marine Drive, Bombay 400 020 ...Petitioners

V/s.

1. Sindhu Resettlement Corporation

Limited, a company incorporated

under the Indian Companies Act,

1913 and having its registered

office at PNB House, Sir Phirozshah

Mehta Road, Bombay 400 001.

2. Mr. R.R. Gandhi,

Additional Chief Judge of the

Small Causes Court, Bombay.

3. Mr. U.R. Patel,

Additional Chief Judge of the

Small Causes Court, Bombay. ...Respondents

Mr. Dinyar Madon, Sr. Counsel i/b. M/s. Malvi Ranchoddas

& Co. for the petitioners.

Mr. U.J.Makhija, Sr.Counsel i/b. Amin Kherada,

Advocate for respondent no.1.

CORAM : A.M.KHANWILKAR,J.

DATED : 12TH JANUARY, 2009

JUDGEMENT

. This Writ Petition takes exception to the Judgement

and order dated 21st June, 1993 passed by the Appellate Bench of the Small Causes Court at Bombay in Appeal No. 377/1992. The Appellate Bench of the Small Causes Court 2

in turn confirmed the view taken by the Trial Court vide Judgement and Order dated 24th November, 1992 below Interim Notice No. 369/1992 holding that the Court had no jurisdiction to try and entertain the subject suit in view of the fact that the suit premises are governed by the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred

to as P.P.Act).

2. The relevant facts to examine the question

regarding jurisdiction of the Court are as follows. The Punjab National Bank, a Public Corporation, is the owner of the building in which the suit premises are situated on the second floor of the building known as PNB House. The first Respondent is a tenant of the said Bank in respect of the premises on the second floor of PNB House. Out of the said premises in occupation of the first Respondent as tenant, portion thereof, admeasuring about 800 sq. feet, was allegedly let out to the predecessor of the Petitioners (one Babubhai M. Chinai) as sub-tenant thereof, sometime in 1966. It is the case of the Petitioners-Plaintiffs that the said arrangement was arrived at after taking approval of the Bank (the owners). The said Babubhai died on 4th July, 1975 leaving a Will wherein he appointed his widow Ashrumati B. Chinai and his sons- the Petitioners, as Executors thereof. It is stated that the said three persons were 3

also the heirs/legal representatives of Babubhai. It is the case of the Petitioners-Plalintiffs that after the death of Babubhai, first Respondent was pressurising the said Ashrumati and the Petitioners to vacate the suit premises and also stopped accepting rent. In the circumstances, said Ashrumati and the Petitioners filed a Declaratory Suit being RAE Declatory Suit No.

5453/1975 for the following reliefs.

"(a) That it be declared that the Plaintiffs are

the lawful sub-tenants or in any event protected

Licensees in respect of the premises admeasuring

300 sq.ft.on the 2nd floor of PNB House, formerly

known as Karimji House, situated at Sir Phirozeshah

Mehta Road, Bombay Land more particularly shown in

Pink wash and the sketch plan Ex.B hereto annexed

and are fully protected under the provisions of the

Bombay Act, 57 of 1947 ;

(b) that the Defendants, their servants and/or

agents be permanently restrained by an order and

injunction of this Hon'ble Court from changing the

common lock on the main gate leading to the

respective premises of the Plaintiffs and the

Defendants and/or from barring the entry of the

Plaintiffs, their servants and agents into the said

premises of the Plaintiffs and/or from trespassing,

encroaching or entering upon the said premises

described in prayer (a) above or any part or

portion thereof or bringing any third person on the

said premises or any part or portion thereof or

from doing any act, deed or thing so as to disturb

or interfere in any manner whatsoever with the

quiet and peaceful possession and enjoyment of the

said premises described in prayer (a) above by the

Plaintiffs as lawful subtenants or protected

licensees of the said premises described in prayer

(a) above ;

of the above suit, the Defendants, their servants

and/or agents be restrained by an order and

injunction of this Hon'ble Court from changing the

common lock on the main gate leading to the

respective premises of the Plaintiffs and the

Defendants and/or from barring the entry of the

Plaintiffs, their servants and agents into the said

premises of the Plaintiffs and/or from trespassing,

encroaching or entering upon the said premises

described in prayer (a) above or any part or

portion thereof or bringing any third person on the

said premises or any part or portion thereof or

from doing any act, deed or thing so as to disturb

or interfere in any manner whatsoever with the

quiet and peaceful possession and enjoyment of the

said premises by the Plaintiffs as the lawful

subtenants or protected licensees of the said

premises described in prayer (a) above ;

(d) for interim and ad-interim reliefs in terms

of prayer (c) above ;

(e) for such other and further reliefs as the

nature and circumstances of the case may require ;

(f) for costs of the suit."

3. During the pendency of the said Suit, the

Defendants-Respondent No.1 took out Interim Notice no. 3690 of 1992 asserting that the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as Bombay Rent Act) have no application in relation to the suit premises. In that, the Defendants were the tenants of Punjab National Bank Ltd. in respect of larger premises of which the suit premises constitute a portion thereof. The said Bank is a "statutory authority" as defined by Section 2(fa)(ii) of the P.P.Act and that the suit premises qualify the definition of Public Premises as defined in Section 2(e) 2(i) or 2(ii) of the P.P. Act. According to the Defendants, therefore, the provisions of Public Premises Act were applicable to the suit premises for which 5

reason the P.P.Act would override the provisions of Rent Control Legislation which has no application thereto. In substance, it was asserted that the Plaintiffs were not entitled to invoke the protection of the Bombay Rent Act. The defendants by the said Interim Notice prayed

for the following reliefs.

"(a) That this Hon'ble Court may be pleased to

frame Preliminary Issues regarding the Jurisdiction

of this Hon'ble Court to try and entertain the

aforesaid suit as to whether the provisions of the

Bombay Rent Act apply to the suit premises and

consequently whether this Hon'ble Court would have

jurisdiction to try and entertain the aforesaid

suit and/or whether the aforesaid suit is

maintainable in view of the fact that the suit

premises fall within the preview of the provisions

of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971.

(b) That this Hon'ble Court may be pleased to

decide the Issues as per prayer (a) above at the

inception as Preliminary Issues.

this Hon'ble Court may be pleased to dismiss the

aforesaid suit on the ground of lack of

Jurisdiction and/or non maintainability of the suit

under the Bombay Rent Act.

(d) For such further and other reliefs as this

Hon'ble Court may deem fit in the facts and

circumstances of the case.

(e) Costs of this Application.

(f) That this Notice may be served upon the

Advocate for the Plaintiff Shri.G.K.Chandan having

his office at Chaturbhuj Jivandas House, 1st Floor,

Near Flyover, 285, Princess Street, Bombay 400 002."

4. The said application was contested by the

plaintiffs. While considering the rival stand, the 6

Trial Court Judge mainly framed three issues for consideration. Firstly, whether the suit premises were governed by the provisions of P.P. Act. Secondly, whether the premises were not governed by the provisions of Bombay Rent Act and the same has no application thereto and thirdly whether the application taken out by the Defendants at this stage was maintainable. The Trial Court answered all the three issues against the Plaintiffs and in favour of Defendants. Consistent with that opinion, the application preferred by the Defendants came to be allowed and the suit was dismissed on the ground of lack of jurisdiction of the Court for the reasons recorded in the Judgement and Order dated

24th November, 1992.

5. The Plaintiffs carried the matter in appeal before

the Appellate Bench of the Small Causes Court by way of Appeal No. 377/1992. The Appellate Bench of the Small Causes Court was pleased to uphold the opinion of the Trial Court Judge and dismissed the appeal preferred by

the Plaintiffs.

6. Against the above said decision, present Writ

Petition has been filed. Besides questioning the correctness of the view taken by the two Courts below the petitioners-plaintiffs had challenged the constitutional validity of the provisions of the P.P.Act 7

being ultravires Article 14 and 19(1)(g) of the Constitution of India. In so far as the question regarding constitutional validity of P.P. Act is concerned, the Division Bench has answered the same vide oral order dated 30-8-1994 against the Petitioners following its earlier decision reported in AIR 1992 Bombay 375 in the case of Minoo Framroze Balsara v/s. the Union of India & ors. By the same order the Division Bench referred the matter back to the Single Judge to consider the same on merits regarding the correctness of the two decisions challenged in this writ petition as is required by the High Court Appellate Side Rules. Accordingly, the matter proceeded for arguments

before me.

7. In so far as the question whether the premises

owned by Punjab National Bank are governed by the provisions of the P.P. Act is concerned, there is direct judgement of the Constitution Bench of the Apex Court where Punjab National Bank was respondent, in the case of Ashoka Marketing Ltd. & ors. v/s. Punjab National Bank reported in AIR 1991 SC 855. On analysing the relevant aspects, the Constitution Bench of the Apex Court has held that the Nationalised Bank is a Corporation established under the Central Act and it is owned and controlled by the Central Government. It is further held that the premises belonging to nationalised 8

banks are public premises within the ambit of Section 2(e)(2)(ii) of the P.P. Act. This decision is also an authority on the second issue that would arise for consideration to which reference will be made a little later. In view of this decision, it is not open to argue that the suit premises which is portion of the premises let out to the Defendants by the Punjab National Bank is not covered by the sweep of definition

of "Public Premises" in the P.P. Act.

8. However, the moot question is; notwithstanding the

suit premises are public premises within the meaning of the Public Premises Act, whether the plaintiffs are still entitled to claim protection under the provisions

of the Bombay Rent Act?

9. The Petitioners/Plaintiffs are not in a position to

dispute the fact that Punjab National Bank is a Corporation covered by the provisions of the P.P. Act and that the premises belonging to it would be public premises for the purpose of the said Act. It is indisputable that the provisions of the P.P.Act came into force with effect from 16th September, 1958, except Sections 11, 19 and 20, which were to come into force at once on 23rd August, 1971. The Scheme of provisions of the P.P. Act has been analysed in two different decisions of the Constitution Bench of the Apex Court. 9

The first decision is in the case of Ashoka Marketing Ltd. (supra) and recent decision of another Constitution Bench in the case of Kaisar-I-Hind Pvt. Ltd. & anr. v/s. National Textile Corporation (Maharashtra North) Ltd. & ors. reported in (2002) 8 SCC 182. Both these decisions, apart from dealing with the question of constitutional validity of the P.P. Act have also answered the contention that once the provisions of the P.P. Act become applicable to any premises, the provisions of the Rent Control Legislation will be of no avail. It is held that the P.P. Act deals with Government property as well as property belonging to other legal entities mentioned in clauses

(2) & (3) of Section 2(e) of the P.P. Act.

10. The Apex Court in paragraph 55 of its Judgement in

Ashoka Marketing Ltd. 's case (supra) has noted that the Rent Control Law can be said to be a special statute regulating the relationship of landlord and tenant. But, the P.P. Act makes provision for speedy machinery to secure eviction of unauthorised occupants from public premises. It went on to hold that the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from the public premises and being a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law 10

cannot be that the Public Premises Act. In went on in the two enactments, in nature, to the and the clear relevant consider the the Rent provisions between landlords rent payable eviction of Government are Control Act; enacted between landlords certain benefits balance the expeditious landlords and reasons Court noted invoked; and in accordance with the principle later law abrogates earlier contrary laws, the Act must prevail over the Rent Control paragraph 61 of the same Judgement, the Court to restate the established legal principle that case of inconsistency between the provisions of both of which can be regarded as Special the conflict has to be resolved by reference purpose and policy underlying the two enactments intendment conveyed by the language of the provisions therein. The Court then went on to objects and reasons for the enactment of Act and found that the same is to make for expeditious adjudication of the dispute and tenants, determination of standard by tenants and to give protection against tenants. The premises belonging to excluded from the ambit of the Rent which means that the Rent Act has been primarily to regulate the private relationship and tenants with a view to confer on the tenants and at the sametime to interest of landlords by providing for adjudication of the proceedings between and tenants. While dealing with the objects for introducing the Public Premises Act, the that it has been enacted to deal with the 11

mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. It further held that in order to secure this object, the said Act prescribes the time period for various steps which are required to be taken for securing eviction of persons in unauthorised occupation. The object underlying the P.P. Act is to 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. After analysing the objectives of the two enactments, it went on to conclude that the effect of giving overriding effect to the provisions of the P.P. 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 are excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. It went on to observe in paragraph 64 of the same Judgement that 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 12

its own purpose as a private landlord but would act in public interest. It is further observed that 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 P.P. Act. The Apex Court unambiguously held that keeping in view the object and purpose underlying both the enactments, namely, 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.

11. If there was any doubt, the question is once again

answered in the recent decision of the Constitution Bench in Kaisar-I-Hind case (supra). Even in this decision the question regarding the purport of provisions of the P.P. Act has been addressed. The specific question as to the effect of Article 254(1) of the Constitution of India on the Bomaby Rent Act after enactment of the P.P. Act has been adverted to in paragraph 38 of the Judgement. In para-40, the Court has observed that once the P.P. Act is enacted then the Bombay Rent Act would not prevail qua the repugnancy between it and the P.P. Act. To the extent of repugnancy, the State law would be void under Article 254(1) of the Constitution and the law made by the 13

Parliament would prevail. It went on to observe that the date of coming into force of the P.P. Act, the Bombay Rent Act qua the properties of the Government and Government Companies "would be inoperative". It has also noted the legal position that the language of Article 254(1) is unambiguous. On that reasoning, it is held that once the P.P. Act came into force, the existing Bombay Rent Act would be void so far as it is repugnant to law made by Parliament. Justice Shah speaking for the majority view summed up the position in

paragraph 65 & 66 as follows:

"65. The result of the foregoing discussion is :

1. It cannot be held that summary speedier

procedure prescribed under the PP Eviction Act for

evicting the tenants, sub-tenants or unauthorised

occupants, it is reasonable and in conformity with

the principles of natural justice, would abridge

the rights conferred under the Constitution.

2.(a) Article 254(2) contemplates "reservation for consideration of the President"

and also "Assent". Reservation for consideration

is not an empty formality. Pointed attention of

the President is required to be drawn to the

repugnancy between the earlier law made by

Parliament and the contemplated State legislation

and the reasons for having such law despite the

enactment by Parliament.

(b) The word "assent" used in clause (2) of

Article 254 would in context mean express agreement

of mind to what is proposed by the State.

"assent" is qua a particular law made by

Parliament, then it is open to the Court to call

for the proposals made by the State for the

consideration of the President before obtaining

assent.

3. Extending the duration of a temporary

enactment does not amount to enactment of a new

law. However such extension may require assent of

the President in case of repugnancy.

66. In this view of the matter, in the present

case there is no question of giving supremacy to

the Bombay Rent Act qua the law made by

Parliament."

12. The Learned Counsel for the petitioners, however,

contends that, the fact that the suit premises is part of the premises governed by the provisions of the P.P. Act per se does not make the provisions of the Bombay Rent Act inapplicable thereto. According to petitioners, the provisions of the Bombay Rent Act would be inapplicable only if expressly exempted under Section 4 of the Bombay Rent Act. Sans exemption, the provisions of the Bombay Rent Act would apply to premises defined in Section 5(8) read with Section 6 of the Rent Act. Indeed, Counsel for the Petitioners had also relied on the circumstance that recognising this position the recent Maharashtra Rent Control Act, 1999 has made an express provision to exempt the premises from the application of the Rent Legislation which are belonging to the Banks. It is argued that the present suit is governed by the provisions of the Old Rent Act which does not expressly exempt the application of the Bombay Rent Act to premises belonging to Banks-for which reason protection available under the provisions of the Bombay Rent Act would continue to apply in relation to 15

the suit premises. It was argued that the Bombay Rent Act, on the other hand, exempts only premises belonging to "Government" or "Local Authority". The Punjab National Bank was neither Government nor Local authority as such. That means the State Legislation had never intended to exempt the application of provisions of the Bombay Rent Act in relation to premises belonging to the Banks. It was then argued that acceptance of argument of Respondent-Defendant that provisions of the P.P. Act will prevail-for which reason the Bombay Rent Act has no application-would result in rewriting of Section 4 of the Bombay Rent Act. For, Section 4 of the Bombay Rent Act will have to be read as the Act shall not apply to "any public premises" covered by the provisions of the P.P. Act and not limited to premises belonging to Government or a Local Authority. It was then contended that the sweep of bar of provisions of Public Premises Act is limited to matters referred to in Section 15 of the P.P. Act. That would not cover a suit for declaration by a sub-tenant against the tenant of the Bank. Whereas, the dispute between the sub-tenant and the tenant was a matter regulated by the provisions of Rent Control Legislation and adjudication of that dispute is not expressly barred by Section 15 of the P.P. Act. It was contended that it is well established position that exclusion of jurisdiction of Court may not be readily accepted. In absence of express provision of 16

exclusion of jurisdiction of Rent Court by the Central Enactment (P.P. Act), coupled with the fact that the dispute between the tenant and the sub-tenant was in respect of the "relationship of landlord and tenant" between them interse, the same was completely outside the scope of provisions of the P.P. Act. Therefore, it ought to proceed as per the regime of the Rent Act before the Rent Court to effectuate the rights and liabilities arising from and under the provisions of the

Bombay Rent Act.

13. The above arguments canvassed on behalf of the

Petitioners will have to be stated to be rejected. For, by now it is authoritatively held by the Apex Court that after coming into force of the P.P. Act, the provisions of the Bombay Rent Act qua the properties of the Government and Government Companies would be inoperative. Indeed, the objective and purpose of the P.P. Act, is in relation to the "public premises". Whereas, the provisions of Bombay Rent Act interalia deal with relationship between landlord and tenant or tenant and sub-tenant. However, the said relationship is ascribable to "a premises" which is necessarily governed by the Rent Control Legislation and not otherwise. Once the provisions of the P.P. Act are applicable to any premises, all rights and obligations of the occupants therein by whatever name called, would 17

be and ought to be controlled by the mechanism provided for therein for eviction of occupants from such premises. The P.P. Act recognises only "authorised occupants" and all others in occupation will have to be treated as unauthorised occupants or in unauthorised occupation of the public premises. These are the only two classes of occupants which are recognised by the provisions of the P.P. Act in relation to any public premises. Therefore, a person who claims to be a licensee or sub-tenant of the lawful occupant, cannot acquire the status of a lawful or authorised occupant-unless the statutory authority were to recognise his possession of the public premises in that capacity. Indeed, the moment the statutory authority were to recognise the possession of such occupant as legitimate one, than that person will have to be recognised as an authorised occupant of the public premises within the meaning of the P.P. Act and not otherwise. The concept of sub-tenant or lawful sub-tenant or protected licensee is the creature of the provisions of the Bombay Rent Act and is alien to the

Scheme of P.P. Act.

14. The argument that the Rent Legislation merely

exempts only the premises belonging to "Government or a Local Authority" clearly overlooks the settled legal position that after coming into force of the P.P. Act, 18

the premises belonging to the Government as also the Corporations or the Companies (covered by the definition of Public Premises Act) are controlled by the regime of the said Act alone. The provisions of P.P. Act overrides the application of the Bombay Rent Act qua the public premises. In other words, the provisions of the Rent Act will have no application to such premises. The fact that Section 4 of the Rent Act does not make specific reference to Corporations or companies referred to in Section 2(e)2(ii) of the P.P. Act, does not take the matter any further. The field regarding the the public premises belonging to the specified Corporation is fully occupied by the Central enactment. The State Legislation would be void to the extent it is repugnant with the Central enactment. In other words, irrespective of the State Legislation (Rent Act) being silent about the exemption of application qua the premises belonging to Banks or Corporations, that is of no avail. For, the law expounded by the Apex Court in the abovesaid two decisions is that the provisions of Bombay Rent Act will have no application to premises belonging to specified Companies or the Corporation such

as the Punjab National Bank.

15. True it is that the Bombay Rent Act deals with the

aspects of relationship of landlord and tenant or tenant and sub-tenant and/or protected licensees. However, 19

that relationship cannot be examined in abstract but is ascribable to "a premises". Significantly, even the claim regarding rights and liabilities under the Rent Legislation is in relation to "premises" to which Rent Legislation is made applicable. If the premises are exempted from the operation of the Rent Legislation, the question of occupant of such premises claiming any rights in the context of provisions of the Rent Act does not arise. If any other view is taken, it would end up in a situation that even if Rent Legislation has no application to the premises, the person occupying the same may assert that he has the protection of the Rent Legislation. That cannot be countenenced. Applying the same logic, once the premises are governed by the definition of Public Premises in the P.P. Act, it is not open to the occupant of such premises or person claiming through the authorised occupant to seek protection of the provisions of the Rent Act therein. For, the provisions of Rent Act have no application to such premises and the only enquiry that is permissible in relation to such premises (public premises) is whether the occupant of the premises is authorised or unauthorised in the context of the provisions of P.P. Act and not with reference to any matter referred to in the Bombay Rent Act. I have no hesitation in taking the view that in such a case neither the provisions of Section 4 nor Section 5(8) read with Section 6 of the 20

Bombay Rent Act would be of any avail. Taking any other view would lead to a preposterous situation. In that, if a person claiming to be in occupation in the capacity as licensee or sub-tenant, his claim was to be accepted with reference to the provisions of the Bombay Rent Act, obviously such person would acquire rights and protection in terms of provisions contained in the Bombay Rent Act. In that case he can be dispossessed only by following due process under the said enactment. In a given case, if the Estate Officer was to initiate action of eviction against the original allottee of the public premises on legitimate grounds and order of eviction was to be passed, in that case the so called sub-tenant or licensee in occupation of portion of the premises would assert that his possession is protected and has become the direct tenant of the statutory authority, having regard to the Scheme of Section 14 and 15 of the Bombay Rent Act. In that case, he may further contend that he cannot be evicted merely on the basis of order passed against the main tenant. Obviously, when enacting the P.P. Act, the Parliament consciously evolved a mechanism for eviction of occupants or persons in unauthorised occupation by following summary procedure stipulated therein, so as to ensure remedy of speedy eviction in relation to public premises and also for its effective management and preservation in public

interest.

16. To get over this position it was argued that only

matters referred to in Section 15 of the P.P. Act have been barred by the Legislature. It was contended that matters which are not covered by Section 15 could be tried by the regular Courts or Special Courts. According to Petitioners, none of the matters referred to in Section 15 of the P.P. Act would cover the relief claimed by the Petitioners in the suit as presented. In the first place, this argument clearly overlooks that once it is held that after coming into force of the P.P. Act, the provisions of the Bombay Rent Act have no application to public premises, the question of resorting to proceedings by invoking the provisions of Rent Act or to assert right in the public premises in the context of provisions of the Rent Legislation does not arise. Viewed thus, there was no necessity to bar the jurisdiction of the Rent Court from entertaining any proceedings between the so called tenant and sub-tenant or licensee interse. Non-mention thereof, either in Section 15 of the P.P. Act or in Section 4 of the Bomaby Rent Act, can be no basis to assume that the dispute between the original allottee of the public premises and his sub-tenant will still be governed by

the provisions of the Bombay Rent Act.

17. Much emphasis was placed on the decision of the

Apex Court (Two Judges) in Life Insurance Corporation of India v/s. Shiv Prasad Tripathi & ors. reported in 1996 (7) SCC 676. Relying on the dictum in paragraph 6 of the said decision, it was argued that the Apex Court has recognised the power of the Rent Court to adjudicate on question whether person was a tenant or not and for that reason has made observation that the Court's power to examine such a question has not been taken away by Section 10 of the P.P. Act. There is no substance in this argument. That was a passing observation made in the context of argument advanced in the fact situation of that case. In that case, the order of eviction passed by the Estate Officer was confirmed in appeal as well as before the High Court. The High Court, however, while upholding the eviction order granted liberty to the occupant to resort to suit before the Small Causes Court to establish his tenancy rights and protected the occupant by way of interim direction till the Court of Small Causes were to adjudicate on question of tenancy to be raised by the occupant in the proposed suit. That view of the High Court was set aside by the Apex Court on the reasoning that Section 10 bars granting of such relief. The Court was not called upon to specifically address the issue as to whether infact the provisions of the Bombay Rent Act were available and could be invoked in respect of Public Premises governed by the Central Legislation i.e. the P.P. Act. That aspect has been 23

specifically dealt with atleast by two Constitution Bench decisions of the Apex Court already adverted to

earlier.

18. Counsel for the Petitioners had relied on the

decision of the Apex Court in the case of Dhulabhai v/s. State of M.P. & anr. reported in AIR 1969 Supreme Court 78,

78 to buttress the argument that exclusion of jurisdiction of Court should not be readily accepted. This argument clearly overlooks that it is not a question of exclusion of jurisdiction of the Rent Court but one of application of provisions of the Bombay Rent Act in relation to premises which are covered by the definition of public premises. Once it is held that provisions of the Bombay Rent Act have no application to such premises, the question of Rent Court having any jurisdiction to decide matters between the occupants interse on the basis of provisions of the Rent Act does

not arise.

19. My attention was invited to the decision in the

case of Nagji Vallabhji & Co. v/s. Meghji Vijpar & Co. reported in AIR 1988 SC 1313. That was a case in which premises belonged to Bombay Port Trust (Local Authority). The same was let out to Respondent No. 1 therein under a written agreement who in turn had inducted the Appellant herein as sub-tenant. The 24

question that was posed for consideration before the Apex Court was that the premises were governed by the provisions of the Bombay Rent Act and respondent no. 1 firm was not entitled to a decree for eviction as none of the grounds for eviction under the Rent Act had been made out. The Court considered the argument in the context of scope of section 4(1) and Section 4(4)(a) of the Bombay Rent Act. Significantly, in that case the Apex Court found as of fact that the entire building in which the suit premises is situated belonged to the Bombay Port Trust. The Court then considered the argument of the Appellant therein that if the sub-lessee in a building put up by a lessee on land leased from the Government or a local authority under a building lease is entitled to the protection of the Bombay Rent Act under Section 4(4)(a) thereof, there is no reason why such protection should be denied to a sub-lessee in any building belonging to the Government or a local authority and taken on lease by a private party regarding the question as to who has put up the building. The Court while considering the above submission clearly observed that "that may or may not be so". It then held that the plain reading of sub-section (1) of Section 4 of the Rent Act makes it clear that the provisions of the Bombay Rent Act are not applicable to premises belonging to the Government or a local authority. Upon analysing the provisions of Section 25

4(4)(a) of the Rent Act the Court observed that if this provision were to be construed as including any building put up or erected on land held by any person from the Government or a local authority, the result would be that such protection would be available even against the Government or a local authority and the provisions of sub-section (1) of Section 4 may be rendered largely nugatory. It has further held that the provisions of Section 4(4)(a) in the context clearly shows that there is no intention therein to take out a building put up by the Government or a local authority from the scope of the exemption conferred by Section 4(1) of the Rent Act. Whereas, Section 4(4)(a) read with Section 4(1) of the Rent Act together suggests that it was only in respect of a building put up by the lessee on the Government land or land belonging to a local authority under a building agreement that the sub-lessee were taken out of the exemption in Section 4(1) and allowed the benefit of the provisions of the Rent Act. Notably, the Apex Court has held that the exemption granted under the earlier part of Section 4(1) is in respect of the premises and not in respect of the relationship. To my mind, this decision is of no avail to the petitioners especially when it is common ground that the suit premises are part of the "Public Premises" belonging to the Bank. Rather, the statement of Law that Section 4(1) of the Bombay Rent Act makes it clear that the provisions of the 26

Bombay Rent Act are not applicable to premises such as the present one belonging to the Bank squarely answers

the issue against the petitioners herein.

20. The Petitioners then relied on two other decisions

in the case of United India Insurance Company Ltd. v/s. The Hongkong & Shanghai Banking Corporation Ltd. reported in 2007 (6) ALL MR 843 and Mrs. Nisha v/s. Punjab National Bank reported in AIR 2000 Delhi 439. In both these decisions the argument dealt with is that if the company or corporation was tenant in relation to any premises and had overstayed the express lease period whether should be proceeded under the provisions of the P.P. Act or the Landlord was obliged to take recourse to remedy before the regular Court. These authorities would be of no avail to the Petitioners. Reliance was then placed on another decision of our High Court in the case of Dattaram T. Bordekar v/s. Prakash D. Tiwatane reported in MLJ 1992 944. Once again this decision will be of no avail to the Petitioners. In that case it was held that provisions of Section 4(1) of the Bombay Rent Act were applicable even to a case where property has been subsequently acquired by the local authority. The Court noted that the provisions of Rent Act were not

applicable.

21. It was also argued that there is no remedy provided

to the lawful sub-tenant or protected licensee which can be suitably addressed. In the first place, the concept of lawful sub-tenant or protected licensee is relevant only to the provisions of the Bombay Rent Act and has no application to the Scheme of Public Premises Act. Secondly, for the nature of stand taken by the Petitioners in the present suit implicit in that is the claim that the original allottee was disowning the lawful possession of the Petitioners in relation to the suit premises which is part of the public premises. In the context of Public Premises Act, the issue would be whether the Petitioners-Plalintiffs are in unauthorised occupation of the portion of public premises. Having regard to the Scheme of Section 4 of the P.P. Act, it is the boundened duty of the Estate Officer to preserve the public premises from being encroached upon by unauthorised occupants. Primarily, the Estate Officer has to examine the question as to whether a person who claims to be in occupation of the public premises or any portion thereof is an authorised or unauthorised occupant. The controversy as raised by the Petitioners, if taken before the Estate Officer, he will have to address that issue. However, if the issue was to be answered against the Petitioners, it would be the duty of the Estate Officer to ensure that such unauthorised occupant is immediately removed and evicted from the public premises. That can be done even at the instance 28

of the original allottee, whom the statutory authority recognises as the only lawful occupant of the public premises. If such is the enquiry to be made in the said proceedings, it is possible to take the view that the claim of the Petitioners of being in lawful occupation would be covered by the enquiry to be conducted by the Estate Officer for the purpose of Section 4 of the P.P. Act. By no standards, however, the reliefs claimed by the Petitioners in the subject suit are available or can be granted by the Civil Court or for that matter by the

Rent Court.

22. Taking over all view of the matter, I have no

hesitation in concluding that the premises referred to in the suit being part of public premises, the provisions of Bombay Rent Act will have no application thereto. On this conclusion, it necessarily follows that the reliefs claimed in the suit for declaration that the Petitioners-Plaintiffs are the lawful sub-tenants or protected licensee in respect of portion of the premises and protected by provisions of the Bombay Rent Act is unavailable. Accordingly, the suit

should fail.

23. Counsel for the Petitioners lastly submitted that

in that case the Court may direct return of plaint in terms of Order VII Rule 10 of the Civil Procedure Code. 29

Ordinarily, having held that the Rent Court has no jurisdiction, the appropriate course would be to return the plaint to be presented before the Court of competent jurisdiction. However, for the nature of reliefs claimed on the basis of provisions of the Rent Act which has no application to the public premises, as observed earlier, the question of returning the plaint does not arise. In as much as, that relief cannot be granted by any other Court for the simple reason that the provisions of the Bombay Rent Act have no application to the suit premises. Indeed, Section 8 of the P.P. Act bestows same powers in the Estate Officer as are vested in Civil Court under the Code of Civil Procedure when trying the suit in respect of matters of summoning and enforcing the attendance of any person and examining him on oath, requiring discovery of production and other matters which may be prescribed. However, the Estate Officer is not treated as a Civil Court or deemed to be a Civil Court as such, but the said provisions only invests certain powers of the Civil Court in the Estate Officer. Thus understood, it is not possible to accept the request of return of plaint in the fact situation of

the present case.

24. Accordingly, this Writ Petition fails and the same

is dismissed with costs.

25. At this stage Counsel for the Petitioner prays for

continuing the operation of stay granted during the

pendency of this petition for a period of 10 weeks.

Request being reasonable, is granted. Ordered

accordingly.

[A.M.KHANWILKAR,J.]