Dismissed

Dr. Suhas H. Pophale v. the Oriental Insurance Co. Ltd. and Ors.

Bombay HC7 Jun 2010WP/2473/1996

Case brief

AI extract

What is this about?

This writ petition challenged an order evicting the petitioner from premises formerly part of an insurance company. The High Court rejected the claim that the premises were private rental property protected by the Bombay Rent Act. Ruling that the premises became 'public premises' under the Public Premises Act upon the Central Government taking control in 1971, the Court held the eviction was valid

What did the court decide?

Petition dismissed with costs; status quo maintained for eight weeks pending appeal; Eta Officer to reconsider damages separately as per lower court remand.

Dr. Suhas H. Pophale Vs the Oriental Insurance Co. Ltd… — Landlord and Tenant | Bombay HC (2010)

ndm

WP 2473.96

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2473 OF 1996

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Dr.Suhas H. Pophale of Bombay Indian Inhabitant, residing at Flat No.3, 2nd floor, Indian Mercantile Mansion, Wodehouse Road, Opposite to Regal Cinema, Bombay 400 039. ... PETITIONER

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VERSUS

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The Oriental Insurance Co.Ltd. Oriental House, Asafali Road, New Delhi and its Bombay Regional Office No.1, Orient House, 7, J. Tata Road, Bombay 400 020.

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deleted

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deleted

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Estate Officer, having their office at Oriental Insurance Co. Ltd. 2nd floor, 7, J. Tata Road, Bombay 400 020. ... RESPONDENTS

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Mr.G.S.Godbole i/b. M/s. Apte & Co. for Petitioner. Mr.V.Y.Sanglikar, for Respondent No.1.

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CORAM : A.M. KHANWILKAR and R.M. SAVANT, JJ. RESERVED ON : APRIL 22, 2010. DELIVERED ON : June 07, 2010.

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JUDGMENT: ( PER A.M. KHANWILKAR, J.)

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1 This Writ Petition under Article 226 of the Constitution of

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India takes exception to the judgment and order passed by the Principal Judge of the City Civil Court at Mumbai dated 17th January, 1996 in

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Miscellaneous Appeal No. 79 of 1973.

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2 Briefly stated, Mr. E. Voller – original opposite party No.1 was

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the monthly tenant in respect of the Flat No. 3 in the Indian Mercantile

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Mansion, at Wode House Road, Opp. Regal Cinema, Mumbai– 39 ( hereinafter referred to “the said premises”). The said flat was part of the building, which was owned by the Indian Mercantile Insurance Company

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Limited(hereinafter referred to as the erstwhile company). The said Mr.

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E. Voller by a leave and licence agreement dated 20th December, 1972

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inducted the Petitioner in the said premises. Since then the Petitioner

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claims to be in exclusive possession thereof. It is the case of the Petitioner that in reply to his request, the General Manager of the erstwhile Company vide letter dated 16th January, 1973 accepted the

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Petitioner as tenant of the erstwhile Company in respect of the said

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premises. Thereafter, the Petitioner made a representation to the erstwhile company to allow change of user of the said premises, by his letter dated 14th March, 1973. It is stated that the Petitioner received reply

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in response of the said request vide letter dated 18th April, 1973. The Petitioner was, however, shocked to receive a notice dated 12th July, 1980 from the Officer of the Respondent No.1, purportedly terminating the rights of Mr. E. Voller – original opposite party No.1; and calling upon him

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as well as the Petitioner to handover vacant and peaceful possession of the said premises. The notice proceeds on the basis that the said premises were public premises and after termination of the rights of the

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original opposite party No.1, the possession of the said premises by the

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original opposite party No.1 or persons claiming through him would be

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unauthorized and liable for eviction action and for payment of damages

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for the unauthorized use thereof. It is stated that the Petitioner made a

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representation to the Chairman on 22nd November, 1984. Later on, the Petitioner received a show-cause-notice dated 31st March, 1992

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addressed to Mr. E. Voller and copy marked to the Petitioner, issued by the Estate Officer, for eviction from the said premises and payment of damages for the unauthorized use thereof. Consequent to the said show-cause-notice, the Estate Officer proceeded with the inquiry and eventually by his order dated 28th May 1993 directed the eviction of

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persons in occupation of the said premises and determining the liability of the occupants for unauthorized use of the said premises. It is relevant to mention that in the said inquiry proceedings, the original opposite party No.1 remained absent. The said proceedings were contested only by the Petitioner herein. Against the said decision of the said Estate Officer, the Petitioner alone carried the matter in appeal before the City Civil Court at Mumbai by way of Miscellaneous Appeal No. 79 of 1973. The Appellate Court partly allowed the appeal. It upheld the decision of the Estate Officer that the occupation of the said premises was without authority

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therefor. Further, the Petitioner was liable to be evicted on account of

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continued occupation of the said premises in spite of the notice of termination dated 12th July, 1980. However, insofar as the order of the

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Estate Officer on the question of payment of damages, the Appellate Court found that there was no proper evidence led before the Estate Officer to assess the damages and more-so about the prevailing rent in the adjoining area. It is for this limited reason, the appeal preferred by

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the Petitioner partly succeeded before the Appellate Court. The Appellate Court after setting aside that part of the order, has remanded the matter to the Estate Officer for fresh hearing on the question of damages alone. The operative order passed by the Appellate Court

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reads thus:

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“O R D E R

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Misc. Appeal No.79/93 is partly allowed. The impugned order of eviction passed by the Estate Officer in Case Nos. 10 and 10A of 1992 is hereby confirmed. However, the order regarding damages passed u/s.7 of the said P.P.Act, 1972 is set aside and for assessment and awarding of damages under section of the said P.P.Act, 1971, the matter is remanded back to the Estate Officer for fresh hearing. No fresh Show Cause Notice is necessary. However, the Estate Officer will give notice/intimation of appearance before him to both the parties.

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After giving full opportunity to both the parties on the point of damages to be assessed and awarded u/s. 7 of the said P.P.Act, 1971, the Estate Officer will pass the order.

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No order as to costs.

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On the request of the appellant, the implementation of the present order is stayed for 3 months from today, to enable the appellant to file Writ Petition before the Hon’ble High Court, on the condition that before applying for ad-interim relief, 48 hours notice will be given to the Respondents.

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Sd/I/c.Principal Judge, 17.1.1996 City Civil Court, Bombay.”

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3 The Petitioner by way of this Writ Petition has accordingly

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challenged only that part of the decision of the Appellate Court, which

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upholds the order of eviction passed against the occupants of the said

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premises including the Petitioner herein. The substance of the challenge

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is that, by virtue of leave and licence agreement in favour of the

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Petitioner, by the original tenant, dated 20th December 1972, the Petitioner

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was put in lawful occupation of the said premises and thereafter

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continued to remain in possession thereof till now. According to the

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Petitioner, since the Petitioner was put in lawful possession of the said

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premises prior to 01st February, 1973 and the leave and licence

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agreement was subsisting on that day, upon introduction of Section 15-A

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of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947

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(hereinafter referred to “Bombay Rent Act”), the Petitioner became the protected licencee. As a result, the status of the Petitioner cannot be treated as unauthorized occupant of the said premises. Moreover, the Respondent No.1 has acquired title in respect of the property owned by the erstwhile Company under the Oriental Fire and General Insurance Company Limited (Merger) Scheme, 1973 ( hereinafter referred to “the Scheme of 1973”), which has come into force only on first day of January, 1974- which is the specified date mentioned in the said Scheme. Thus, the said premises can be treated as public premises only from such date and not anterior thereto. However, before 01st January, 1974, the Petitioner had already acquired the status of protected licensee with effect from 01st February, 1973. From that date, the original opposite party No.1, who had inducted the Petitioner in the said premises, had no subsisting right in respect of the said premises. Further, the rights of the

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original opposite party No.1 in respect of the said premises came to be

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terminated vide notice dated 12th July, 1980. However, admittedly, no

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such notice of termination was issued to the Petitioner, for which reason it

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is not open to treat the status of the Petitioner as unauthorized occupant.

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According to the Petitioner, the action initiated by the Estate Officer against the Petitioner was without authority of law and could not be taken

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further as against the Petitioner. The Petitioner places reliance on the provisions of the General Insurance (Emergency Provisions) Act, 1971 ( hereinafter referred to “the Act of 1971” ) and on the General Insurance Business (Nationalisation) Act, 1972 (hereinafter referred to “the Act of 1972”) to contend that the same would be of no avail- as those enactments do not vest the title in the Respondent No.1 – Company. That has happened only on account of the Scheme of 1973 on and from

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01st January, 1974. In other words, the provisions of the Public Premises

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( Eviction of Unauthorised Occupants ) Act, 1971 ( hereinafter referred to

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“the P. P. Act” for sake of brevity ) would become relevant and applicable to the said premises only from 01st January, 1974. But before that date,

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the Petitioner had already become protected licensee on account of

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Section 15-A of the Bombay Rent Act and therefore, the Petitioner cannot

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be treated as unauthorized occupant. The Petitioner has additionally

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criticized the findings and conclusion recorded by the Appellate Court, to

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which we shall refer to at the appropriate place.

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4 Per contra, the Respondent No.1 submits that the challenge

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of the Petitioner is founded on complete misreading and

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misunderstanding of the provisions of the Act of 1971 as well as the Act

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of 1972 and more particularly that of the P. P. Act. According to the

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Respondent No.1, the said premises acquired the status of public premises and the provisions of P. P. Act became applicable thereto on and from 13th May, 1971, which is the appointed day specified under the

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provisions of the Act of 1971. The said Act of 1971 was intended to takeover the management of general insurance business pending

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nationalization of such business. After coming into force of the said Act,

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it was not open to the erstwhile company to transfer or otherwise dispose

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of any assets or create any charge, hypothecation, lease or any encumbrance thereto without the previous approval of the persons

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specified by the Central Government. On account of this enactment, the

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control with regard to the management of the General Insurance

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Business including that of the assets of the company were regulated and

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in the control of the Central Government, for which reason the said

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premises acquired the status of public premises within the meaning of Section 2 (e) of the Public Premises Act. As a result, the provisions of

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Bombay Rent Act had no effect and were not applicable to the said premises from such date i.e. 13th May, 1971. In any case, it was not open

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to the erstwhile company or any of its officers to transfer or otherwise

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dispose of any asset of the company or enter into any transaction in that connection. Therefore, even if the communication issued under the

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signature of the General Manager of the erstwhile company dated 16th

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January, 1973 was to be taken into account, it would be of no avail. Inasmuch as, the same has been issued by the General Manager without

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the previous approval of the person specified by the Central Government.

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Such approval was essential as the said communication had the effect of

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creating and/or recognizing rights of the Petitioner in respect of the said

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premises. The Respondent No.1 then contended that by the Act of 1972,

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the nationalization of the business of the erstwhile company was

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complete and all shares in the capital of the said company stood transfered to and vested in the Central Government free of all trusts, liabilities and encumbrances affecting them; and the company was to function as a Government company. As per Section 16 of the said Act, a merger scheme was notified by the Ministry of Finance on 31st December,

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1973, which has come into force with effect from first day of January, 1974

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and on account of the said scheme, the assets and properties of the erstwhile company stood transfered and vested in Respondent No.1 from the specified date. It is contended by the Respondent No.1 that since the said premises were public premises at all the relevant time from 13th May, 1971, the provisions of Bombay Rent Act will have no application thereto. Accordingly, it has been submitted that the Petitioner has been illadvised to invoke the provisions of Bombay Rent Act to assert that he

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was in lawful occupation of the said premises and was not an unauthorized occupant thereof. The fact that the original tenant inducted

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the Petitioner in the said premises cannot confer any right in the Petitioner, so long as, there was no approval given by the competent or authorised officer to the entry of the Petitioner in the said premises, albeit

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the leave and licence agreement. In absence of prior permission or

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approval in favour of the Petitioner much less ratification, the Petitioner

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cannot claim any right in the said premises on his own, but was only a

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person claiming through the original allottee / tenant, whose rights have already been determined in terms of notice dated 12th July, 1980. As a

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matter of fact, the occupation of the said premises by the Petitioner on

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and from 20th December, 1972 itself was unauthorized occupation.

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Moreover, admittedly, the notice of termination has not been challenged

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by the original opposite party No.1 and has been allowed to become final.

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As a result, the occupation of the said premises by him or any person

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claiming through him was unauthorized atleast from the date of issuance

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of notice of termination. The Respondent No.1 contends that insofar as

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the concurrent findings and conclusion reached by the two authorities

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below, it is not open to this Court to interfere with the same. For, this Court cannot re-appreciate the evidence on record and take a different view than the concurrent findings of fact recorded by two authorities

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below merely because such other view was also possible. According to

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the Respondent No.1, neither the decision of the Estate Officer nor of the

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City Civil Court can be said to be manifestly wrong or perverse.

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Accordingly, no interference is warranted in the fact situation of the

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present case.

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5 The counsel appearing for both the parties have relied on the

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reported decisions to buttress their respective submission to which we

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shall refer to at the appropriate place.

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We think it apposite to first analyse the view taken by the

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Appellate Court in the impugned decision. It has held that the claim of

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the Petitioner as tenant of the said premises cannot be sustained on

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facts and in law. That the Petitioner was not entitled for termination

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notice under section 106 of the Transfer of Property Act. Termination

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Notice was rightly given to the tenant, namely, Eric Voller. The Appellate

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Court rejected the argument of the Petitioner that it was the duty of the

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Estate Officer to consider the intention of the parties under the Leave and

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Licence Agreement, considering the fact that the Petitioner was put in

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exclusive possession of the said premises. It is further noted that the

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Leave and Licence Agreement was not for 11 months, as is usually done

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to avoid registration. It was for a period of two years. Besides, the

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Petitioner claimed to be in exclusive possession of the said premises.

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Therefore, the Leave and Licence Agreement ought to have been registered. It has noted that the Leave and Licence Agreement was contrary to the terms of tenancy between the parties. The terms of

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tenancy postulate that the sub-letting of the premises or any part thereof

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is strictly prohibited. The said premises could be used by the tenant only for his own residential or office purpose and for no other purpose, whatsoever. The Appellate Court has noted that rent receipt issued by

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the erstwhile company were not produced by the Petitioner before the Estate Officer. The Appellate Court has also noted the plea of the Respondent that the rent receipts were produced in the Civil Suit, which

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was filed by the Respondent No.1 against the Petitioner in the Small Causes Court. That suit was later on withdrawn after institution of the eviction proceedings before the Estate Officer. The Court has found that

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the Leave and Licence Agreement is not a legal document, as there was nothing on record to indicate that there was contract to the contrary

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between the original tenant Erix Voller and the erstwhile company to

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permit sub-letting of the said premises. The Court has then considered

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the argument of the Petitioner that he was protected by virtue of

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provisions of the Bombay Rent Act. The Court has found that the provisions of Bombay Rent Act were not applicable to the said premises,

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being the public premises. Accordingly, the occupant thereof cannot get

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any protection under the Bombay Rent Act. The Court has then adverted

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to the argument that the original tenant did not take any action against

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the Petitioner and the Petitioner was in exclusive possession of the said

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premises. The Court has found that the fact that the tenant has not

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taken action against the Petitioner will not bind the landlord. In any case,

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the Leave and Licence Agreement cannot become valid unless the original tenant had authority to sub-let as per the agreement with the

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landlord. That fact has not been established. The Court then considered the argument that the proposed action against the Petitioner

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was not as per the guidelines issued by the Central Government. That

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argument has been rejected on the finding that in the present case, the

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Petitioner was not a lawful tenant in respect of the said premises and

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action taken by the Estate Officer was justified. The Court has also

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considered the argument that the Respondent No.1 had option either to

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pursue remedy under P.P. Act or to file suit for eviction against the

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Petitioner; and the Respondent No.1 having exercised the later option by

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filing suit, cannot now proceed against Petitioner by resorting to provisions of the P.P.Act. This argument has been rejected on the finding

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that there was no question of exercising any option. In that, Section 15 of

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the P.P.Act plainly stipulates that no Civil Court can entertain any proceeding for eviction/damages in respect of public premises, which

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action can proceed only as per the regime provided under the P.P.Act.

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The Court thus, found that institution of earlier suit for eviction against the Petitioner would be no impediment for the competent Authority to resort to action under P.P.Act, which act overrides the provisions of the Bombay

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Rent Act. The Court concluded that the Petitioner was not a lawful occupant in respect of the said premises. Accordingly, the Appellate

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Court confirmed the order of eviction passed by the Estate Officer.

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Having considered the rival submissions, the foremost

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question to be addressed is : on what date the said premises acquired

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the status of public premises ? That can be answered on the basis of the provisions of the Act of 1971, Act of 1972, the Scheme of 1973 and the provisions of the P. P. Act.

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Before the Act of 1971 was introduced, the Law was brought

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into force by issuing Ordinance. Later on, the Ordinance was converted into the Act of 1971. The main purpose for the said enactment is to provide for taking over of the Management of General Insurance business pending nationalisation of such business. That was required to

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be done in public interest. The sweep of this Act therefore, was to take adequate steps to protect the interest of the policy holders pending nationalisation of insurance business. It is, for that reason, even the title of the Act was coined as the General Insurance(Emergency Provisions) Act 1971. The “appointed day” as per Section 2(a) of the Act, means the 13th day of May, 1971. Section 2(b) defines the meaning of term “Custodian”. The Custodian means the person appointed under Section

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4 of that Act to take over the Management of the undertaking of any

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insurer. The term “insurer” is defined in Section 2(e) of the same Act. It is not in dispute that the activities and business of the erstwhile company

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is covered by this definition. The term “undertaking” has also been

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defined in Section 2(h) of the Act. Section 3 of this Act is of some significance. It postulates that on and from the appointed day(i.e. 13th day of May, 1971), the management of undertakings of all insurer shall vest

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in the Central Government. It further provides that pending appointment of the Custodian for the undertakings of any insurer, the persons in charge of the management of such undertaking immediately before the appointed day shall, on and from the appointed day, be in charge of

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the management of the undertaking “for and on behalf of the Central Government”; and the management of the undertaking of the insurer shall be carried on by them subject to the provisions contained in subsection (3) and (5) and to such further directions, if any, as the Central Government may give to them by notice addressed and sent to the principal officer of the insurer. Sub-section (3) of Section3 of the Act of 1971, mandates that no insurer shall, without the previous approval of the

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person specified by the Central Government in this behalf in respect of

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that insurer shall do certain matters specified therein. One such is to

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transfer or otherwise dispose of any assets or create any charge, hypothecation, lien or other encumbrance thereon. This provision is wide

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enough to include allowing sub-letting of the property of the insurer.

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Clause (g) forebears the insurer from entering into any other transaction relating to the undertaking of the insurer other than a contract relating to

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the transaction of general insurance business or vary the terms and conditions of any agreement relating to any such transaction subsisting at the commencement of this Act. Even though, the ostensible purpose of

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the Act is to take over the management of General Insurance business;

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but considering the provisions of the Act, it is obvious that, it is also intended to provide measures for control over the transfer or otherwise disposal of the assets and properties of the insurer or to create other encumbrance thereon pending nationalisation of the business of the insurer. We shall revert to this aspect a little later. Reverting to Section

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3 sub-section(4) thereof, it provides that the approval to be granted in terms of sub-section (3) by the Authorised person may be given either

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generally in relation to certain classes of transactions of the insurer or

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specially in relation to any such transaction referred to in the said

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provision. It is noticed that neither a general approval nor any specific

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approval given by the Authorised person, namely, Custodian or the persons specified by the Central Government in respect of the insurer(erstwhile company) has been produced. As per sub-section (2) of Section 4 of the Act of 1971 on the appointment of custodian, the

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charge of the management of the undertaking of the insurer shall vest in him. In that case, all persons in charge of the management of such undertaking immediately before such appointment shall cease to be in

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charge of such management and shall be bound to deliver to the Custodian all books of account, registers or other documents in their custody relating to the undertaking of the insurer. Even this provision is indicative of the fact that the Custodian or the Authorised person is put in complete control of the entire business of insurer and incidental matters thereto including of managing or dealing with the assets and properties of

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the insurer from the appointed date for and on behalf of the Central Government. Section 4B of the Act of 1971 provides that subject to such directions and instructions given by the Central Government under the

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Act, the Custodian or, where no Custodian has been appointed in

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relation to the undertaking of any insurer, the person in charge, under

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section 3, of the management of the undertaking of the insurer, shall

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alone be entitled to exercise all the powers of management in connection with, or incidental to the carrying on or otherwise of the general insurance business of the insurer, irrespective of whether the powers are derived

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from the Companies Act or from the Memorandum or Articles of Association of the insurer or from any other source. Section 6 of the Act

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of 1971 envisages that every insurer shall be given by the Central Government compensation for the vesting in it, under section 3, of the management of the undertaking of the insurer.

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Relying on these provision, the Petitioner would contend that the

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said Act of 1971, cannot whittle down the right enured to the Petitioner on account of the Leave and Licence Agreement; coupled with the fact that the Petitioner was in exclusive possession of the said premises and the agreement was subsisting on 1st February, 1973. As a result, by

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virtue of section 15A of the Bombay Rent Act, the Petitioner has become

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protected licensee. Thus, the Petitioner was in lawful occupation of the

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said premises, for which reason also cannot be proceeded against.

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Inasmuch, the Petitioner cannot be termed as an unauthorised occupant.

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According to the Petitioner, even if the Act of 1971 is read as a whole or

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section by section or clause by clause of the concerned section, there is

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nothing to indicate that the property owned by the erstwhile company has

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vested in or transfered in favour of the Respondent No.1. Further, until

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the Respondent No.1 becomes owner of the property of the erstwhile company of which the said premises is a part, the said premises cannot

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be termed as public premises.

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The argument of the Petitioner that the said premises did not

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acquire the status of public premises, within the meaning of P.P.Act, after

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coming into force the Act of 1971, will have to be examined keeping in

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mind the sweep of provisions of Act of 1971 and more importantly the

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definition of “public premises” in the P.P.Act. Section 2(e) of the P.P.Act

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reads thus:

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Definitions. - In this Act, unless the context otherwise requires, -

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[****]

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(b) .......

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(d) .........

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(e) “public premises” means -

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(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction) of Unauthorised Occupants) Amendment Act, 1980(61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member to any member of the staff of that Secretariat;

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(2) any premises belonging to, or taken on lease by, or on behalf of,-

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(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent. Of the paid-up share capital is held by the Central Government or any company which is a subsidiary(within the meaning of that Act) of the first-mentioned company, (ii) any corporation(not being a company as defined in section 3 of the Companies Act, 1956(1 of 1956), or a local authority) established by or under a Central Act and owned or controlled by the Central Government,

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(iii) any University established or incorporated by any Central Act,

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(iv) any Institute incorporated by the Institutes of Technology Act, 1961(59 of 1961)

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(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (39 of 1963),

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(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re-named as the Bhakra-Beas Management Board under sub-section (6) of section 80 of that Act,

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(vii) any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union territory,

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(viii) any Cantonment Board constituted under the Cantonments Act, 1924(2 of 1924); and]

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(3) in relation to the [National Capital Territory of Delhi]

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(i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee,

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(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of , or leased out by, the said Authority,]

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(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government or the Government of any Union Territory;”

¶263

The expression “belonging to” has been amplified by the Division Bench

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of our High Court in the case of M. Mohd. Vs. Union of India and ors.

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Reported in AIR 1982 Bombay 443. Paragraph 22 reads thus:

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“Assuming we are wrong in our aforesaid conclusions, we are of the view that there is no reason why the present premises should not fall within the expression “belonging to the Central Government” in the definition of “public premises” in S. 2(e) of the said Act. There is no doubt that the expression “belonging to” does not mean the same thing as “owned by”. The two expressions have two different connotations. The expression “belonging to” will take within its sweep not only ownership but also rights lesser than that of ownership. It must be remembered in this connection that the expressions used in the statute are to be interpreted and given meaning in the context in which they are used. The present Act has been placed on the statute book to give a summary remedy to the Government to evict persons in occupation of public premises to obviate the long ordeal of trial in a Civil Court and of further proceedings thereafter. Hence a wider meaning will have to be given to the expressions

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used in the Act for defining the concept of public premises. So viewed there is no reason why the premises of which possession for the time being vests in the Government and which are allotted by the Government to others while so in possession should not be held to be public premises.

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In AIR 1965 SC 1923, (Mahomed Amir Ahmad Khan v. Municipal Board of Sitapur), the Supreme Court was called upon to consider the expression “belonging to me” used by the tenant in an application to the Compensation Officer under Act 26 of 1948 for the Rehabilitation of Refugees. While commenting upon this in para 14 of the judgment the Court observed as follows:-

¶270

“Now to revert to paragraphs 2, 5 and 8 which the learned Judges considered amounted to a clear and unequivocal denial of the Government’s title, they referred in para 2 to the words ‘belonging to me’ as constituting a disclaimer of the tenancy and a repudiation of the landlord’s title. We do not agree that this is the only or proper construction which the words are capable of bearing. Though the word “belonging” no doubt is capable of denoting as absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. In Webster ‘belong to’ is explained as meaning inter alia ‘to be owned by, be possession of’. The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs. ......”

¶271

In Stroud’s Judicial Dictionary at page 269 the word “belonging” has been defined as follows:-

¶272

“Property ‘belonging’ to a person has two general meanings, (1) ownership, (2) the absolute right of user: “A road may be said, with perfect propriety to belong to a man who has the right to use it as of right, although the soil does not belong to him’.”

¶273

¶274

Therefore, where a person has an absolute right to user i.e. right of user even against the owner, it can be said that the property belongs to him. It must be remembered that the absolute right of user is distinct from the possessory title which a person has against the whole world except the true owner. In the present case, in the first instance there is no dispute between the landlord and the Government that the Government is the monthly tenant of the premises in question. Secondly, even under the Bombay Rent Act, by virtue of Section 4(1) thereof, the Government’s tenancy is protected. Therefore, it can legitimately be held that the Government has ab absolute right of user of the premises in question. If this is so, then the premises can properly be said to “belong to” the Government. Since we have already observed that the expression “belonging to” does not merely include the right of ownership but also something less than than and since further the premises of which the absolute right of user vests in a person can be said to belong to him, the present premises will squarely be embraced by the definition of public premises within the meaning of the said Act.

¶275

We may usefully refer, in this connection, to two authorities. In (1950) 52 Bom LR 688: (AIR 1951 Bom 205), (Laxmipat Singhania v. Larsen & Tourbo Ltd.), the facts were that the plaintiff had filed a suit for eviction against the defendants who were a Company to whom a portion of the building was let out. The plaintiff’s predecessor had taken on lease the land from the Port Trust for constructing the building. After constructing the building, he had let out a portion of the same to the defendants. The question was whether the building belonged to the Port Trust or to the plaintiff. If it belonged to the Port Trust the Rent Court had no jurisdiction in view of S. 4(1) of the Bombay Rent Act. While holding that the building belonged to the Plaintiff the Court observed as follows (at p. 209 of AIR):-

¶276

“These decisions in my opinion establish that

¶277

¶278

there may be in relation to property a dual ownership for a limited period of time; and it would be possible to say in such cases that even a person who was not the absolute owner but had a right of ownership limited to that period was a person to whom the property belonged. No doubt these cases related to movable property; but I do not conceive that the principle is any different when we are dealing with immovable property. The tests as to whether for a limited period of time a temporary ownership has been created is according to the cases (1) whether there is a demise of the property, (2) whether there is full dominion and control over the property in the demisee and (3) whether the risk of the property falls on the demisee, or the absolute owner.

¶279

Applying these principles to the case of a lease of land together with the building for a limited period of time – particularly a period as long as 99 years – it appears to me that if the lease demises the land with the building and confers on the transferee full dominion and control over the property, the transferee taking the risk of the property, then , for that limited period, the lessee is the owner of the property and the property can be said to belong to him. Ownership is nothing more than a bundle of rights in relation to property. The aggregate of rights constitutes absolute ownership. It may be that during a stated period some of these rights are vested in one person and some in others. In the case of a lessor and a lessee such as we are considering, the lessee has the right of reversion which of course is not tangible immovable property, but an intangible thing. He has also a right of re-entry under the terms of the lease and he has further a right by covenant to claim the building upon termination of the lease or upon its determination in any other manner provided by lease. With regard to all other rights in the property, these vest completely in the lessee for the limited period of time. It seems to be that it is the lessee who is under the circumstances the owner qua at any rate those to whom he has let or sublet such premises. It is consistent with dual ownership that qua the lessee it may be that the lessor is the owner of the property; and in any proceedings between the lessor and

¶280

¶281

the lessee it would be possible to say that the premises belonged to the lessor and not to the lessee. That is not the case before me. The case here arises between the lessee and those to whom he has let the premises. I have no doubt in my mind that qua the defendants in these two suits the premises in suit belong to the plaintiff and to nobody else so long as the lease is subsisting. That being so, those premises are not excluded from the operation of the Bombay Rents Hotel and Lodging House Rates Control Act, and this Court has therefore no jurisdiction to entertain or try either of these suits.”

¶282

In AIR 1977 Bom 220 (S.R.B. Kaikwad v. Union of India), what fell for consideration was the status of the Central Government as the lessee when the lease is determined and the Government becomes a statutory tenant under the Bombay Rent Act. While construing the meaning of public premises in this context, the Court observed as follows:-

¶283

“Even where the lease in favour of the Central Government is determined and the Central Govt. becomes a statutory tenant under the Bombay Rent Act, 1947 the premises do not cease to be public premises within the meaning of Section 2(e). The Act is not so much concerned with the title as with the possessory rights vested in the Central Government and Section 2(e) only indicates the sources by which such right to possession can be acquired, one such being, the taking of the premises on lease from its owner. The definition thus is descriptive of the source or origin of the possessory rights acquired by the Central Government. It is the continuance of the vesting of this possessory right in Government and not so much the origin thereof, that makes any premises, a public premises under the Act. The contract of lease, no doubt gives rise to the estate and interest of the lessee in the property, bare right to possession being only a part of such estate and interest. The determination of the lease, no doubt puts an end to the contract and such interest and the estate. However, provisions of the Bombay Rent Act afford some protection to the tenants against eviction and prevents

¶284

¶285

such determination of lease from having its full effect. In spite of the determination of the lease and incapacity of the tenant and the landlord to enforce the terms of the contract, ex-tenant actually happens to enjoy still, what once was the fruit and the product of the same contractual lease. In other words, the entire interest covered by the possessory right created by the contract does not come to an end with the determination of the lease but part of it, at any rate, i.e. the bare right to remain in possession still survives and is protected by the Rent Act. The right to possession acquired by the Central Government under the lease on taking the same on lease, thus continues to exist and is protected, though the lease interest and the estate comes to an end. The premises do not cease to have been “taken on lease” as the phraseology is merely descriptive of how the possessory right originated. The loss of contractual security, and the substitution thereof by the cover of the protection under the Rent Act does not affect, any rate, the kernel, i.e. the possessory right which also was the creature of the contractual lease. It is difficult to see how the premises cease to be public premises when in spite of the determination of the lease, possessory right created thereunder continues to be vested in the Government.

¶286

The aforesaid observations reinforce the conclusion that where a person has an absolute right to user i.e. the right of user even against the owner, it can truly be said that the premises belong to such person though he is not the owner of the same. In the present case therefore, on the facts discussed earlier it can validly be held that the premises belong to the Central Government. Even assuming therefore that we are wrong in our conclusion that the premises are leased to the Central Government, the premises will be public premises within the meaning of the said Act and therefore the orders passed evicting the appellants are valid in law.”

¶287

¶288

Considering the provisions in the Act of 1971, we have no

¶289

hesitation in taking the view that the same are wide enough to

¶290

encompass the power of vesting of complete control of the assets and

¶291

properties of the insurer(erstwhile company) in the Central Government from the appointed day(i.e. 13th May, 1971). It is true that this Act of 1971

¶292

does not transfer or vest the title in the assets of the insurer(erstwhile

¶293

company), in favour of the Central Government; but nevertheless, it purports to “vesting of complete control” of the assets and properties of the insurer in the Central Government and to be regulated by the

¶294

Custodian or with the approval of the person specified by the Central Government in that behalf in respect of the insurer, as the case may be.

¶295

The primary intention of which is to protect the interests of the policy

¶296

holders until the nationalisation of insurance business was to be accomplished. Indubitably, the enactment of 1971 invests some rights in

¶297

the Central Government to be enforced through the specified person(s)

¶298

for management of the insurer in anticipation of nationalisation of such

¶299

business and incidental matters including to deal with the assets and

¶300

properties of the insurer. It matters not that the said right of the Central

¶301

¶302

Government in the respect of the assets and properties of the insurer were to be lesser than that of the ownership rights. As a result, by virtue of the expansive definition of “public premises” in section 2(e) of the P.P.Act, the said premises acquired the status of public premises within the meaning of the P.P.Act after the appointed day(i.e. 13th May,

¶303

specified by the Act of 1971.

¶304

Once the provisions of the P.P. Act became applicable to the

¶305

said premises, the question of dealing with such premises in manner other than the provisions of PP Act or for that matter, the Act of 1971 would not arise. If so, the fact that a Leave and Licence Agreement was executed in favour of the Petitioner by the original tenant on 20th December, 1972 does not take the matter any further. For, the entering

¶306

into such agreement was impermissible in relation to the public premises without prior approval of the Competent Authority. Moreso, no such agreement could have been executed without the prior approval of the

¶307

person specified by the Central Government. No such general or special

¶308

approval, as the case may be, was relied or produced before us. In

¶309

¶310

absence of such approval, transaction by way of Leave and Licence

¶311

agreement entered into by the Original tenant in favour of the Petitioner

¶312

herein was not legal and valid and in any case was not binding on the Respondent No.1 or the erstwhile company. The letter purportedly issued under the signature of the General Manager of the erstwhile company dated 16th January, 1973 cannot legitimise the transaction. Significantly

¶313

the General Manager has not referred to any approval given by the

¶314

person specified by the Central Government authorising issuance of such communication.

¶315

In the present case, the concurrent finding of fact recorded

¶316

by the two authorities below, is that, the communication dated 16th

¶317

January, 1973 relied by the Petitioner is not legal and genuine. That being

¶318

concurrent finding of fact based on appreciation of evidence on record, cannot be overturned by this Court. In any case, in view of the legal position flowing from the provisions of the Act of 1971, the inevitable conclusion is that the said premises acquired the status of public

¶319

premises on or from 13th May, 1971. The original tenant therefore, could

¶320

¶321

not have parted with possession thereof to third person without the

¶322

express prior written approval of the Competent Authority under the

¶323

P.P.Act. As no such approval has been obtained, the Leave and Licence

¶324

Agreement pressed into service will be of no effect and cannot extricate the Petitioner from the action under P.P.Act. The said agreement would be of no avail also because, after application of the provisions of the P.P.

¶325

Act to the said premises, the provisions of Bombay Rent Act have no application thereto. For the same reason, rights under the provisions of the Bombay Rent Act in respect of the public premises, would become unavailable. For, the provisions of P.P. Act overrides the application of

¶326

the Bombay Rent Act qua the public premises. This position has been restated in catena of decisions. We may usefully refer to the Judgment of

¶327

the Constitution Bench of the Apex Court in the case of Ashoka Marketing Ltd. & Anr. v/s. Punjab National Bank & Ors. (1990) 4 SCC

¶328

406. In paragraph-70 of the said decision, the Constitution Bench authoritatively rejected the contention that the provisions contained in the P.P. Act cannot be applied to the premises which fall within the ambit of

¶329

Rent Control Act. It has taken the view that the provisions of the P.P.Act,

¶330

¶331

to the extent they covered premises falling within the ambit of Rent

¶332

Control Act, override the provision of the Rent Act; and a person in

¶333

unauthorised occupation of public premises under section 2(e) of the Act

¶334

cannot invoke the protection of the Rent Control Act.

¶335

In the case of Crawford Bayley & Co. & Ors. Vs. Union of

¶336

India & Ors.(2006) 6 SCC 25. Similar argument has been dealt with in the

¶337

context of challenge based on constitutional validity of the provisions of

¶338

the P.P.Act. Even in this decision, the Apex Court restated the legal

¶339

position that in respect of public premises governed by the PP Act, the

¶340

provisions of the said Act would prevail over the Rent Control legislation.

¶341

In recently decided case of Pradeep B. Chinal & Anr. V/s.

¶342

Sindhu Resettlement Corporation Ltd. Bombay & ors. reported in 2009(3)

¶343

Mh.L.J. 671 by the Single Judge of this Court, while considering the

¶344

question as to whether the Small Causes Court has jurisdiction to try

¶345

and entertain the suit instituted by the occupant with reference to the

¶346

provisions of the Bombay Rent Act, even though the premises were

¶347

¶348

governed by the provisions of the P.P.Act, it has been held that once the

¶349

provisions of the P.P. Act become applicable to any premises, the

¶350

provisions of Rent Control Legislation will be of no avail. This Court,

¶351

deducing the legal principle stated by the Apex Court in different decisions, noted that the P.P. Act is also a special statute relating to eviction of unauthorised occupant from the public premises and being a

¶352

special statute and not a general enactment, the exception contained in

¶353

principle that subsequent general law cannot derogate from an earlier special law cannot be invoked. Further, in accordance with the principle

¶354

that the later law abrogates earlier contrary laws, the P.P. Act must prevail

¶355

over the Rent Control Act, it is held that the public premises are excluded

¶356

from the ambit of Rent Control Act. The Rent Act has been enacted to

¶357

regulate “private relationship” between the landlord and tenant with a

¶358

view to confer certain benefits on the tenant and at the same time, balance the interest of landlords by providing expeditious adjudication of

¶359

the proceedings between the landlords and tenants. Whereas, the P.P.

¶360

Act has been enacted to deal with the mischief of rampant unauthorised

¶361

occupation of public premises by providing speedy machinery for

¶362

¶363

eviction of persons in unauthorised occupation. The argument of the

¶364

Petitioner in that case was that the fact that the suit premises were part of

¶365

the premises governed by the provisions of P.P. Act, per se, does not

¶366

make the provisions of the Bombay Rent Act inapplicable thereto. This argument has been negatived. The Court held that it is well established

¶367

position that after coming into force of the PP Act, the provisions of the

¶368

Bombay Rent Act qua the properties of the Government and Government Companies would be inoperative. In paragraph-13, the Court observed thus:

¶369

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 inter alia 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 be and ought to be controlled by the mechanism provided for therein for eviction of occupants from such premises. The P.P. Act recognizes only “authorized occupants” and all others in occupation will have to be treated as unauthorised occupants or in unauthorised occupation of the

¶370

¶371

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. (emphasis supplied)

¶372

It would be useful to reproduce paragraph-14 to 16, which reads thus:

¶373

“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, 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 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

¶374

¶375

to premises belonging to specified Companies or the Corporation such as the Punjab National Bank.

¶376

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, 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 countenanced. 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 authoritsed 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 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.

¶377

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

¶378

¶379

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 inter se. Non-mention thereof, either in section 15 of the P.P. Act or in section 4 of the Bombay 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.” (emphasis supplied).

¶380

In another case between LIC & Anr. v/s. Banatwala & Co., in Writ Petition

¶381

No.5023 of 2009 decided by learned Single Judge of this Court on 8th September, 2009 to consider the question as to whether the provisions of P.P. Act had overriding effect over the provisions of Maharashtra Rent Control Act, 1999 and whether any application for fixation of standard rent under the provisions of the said Act of 1999 is amenable in relation to the premises governed by the provisions of the P.P. Act, has restated the legal position that the provisions of Rent Control Legislation will cease to

¶382

apply in respect of the premises governed by the provisions of the P.P.Act

¶383

and further, occupant of such premises cannot claim protection under

¶384

¶385

the provision of the Rent Control Legislation.

¶386

Considering the above, the fact that there exists a leave and

¶387

licence agreement in favour of the Petitioner in respect of the said premises, does not take the matter any further. Inspite of the said leave and licence agreement, it will have to be concluded that the entry of the

¶388

Petitioner in to the said premises itself was without authority therefor.

¶389

With the result, even the original allottee became liable for action under the provisions of P.P. Act on that count. The status of the Petitioner, at

¶390

best, would be that of a person claiming through the original allottee/tenant. Insofar as the original allottee/tenant is concerned, his rights in relation to the said premises have been determined by notice of termination dated 12th July, 1980, for the reasons mentioned therein. The

¶391

said notice has attained finality. It was thus open and permissible for the Estate Officer to take recourse to action under the provisions of P.P. Act. Accordingly, the Estate Officer has initiated the present proceedings not

¶392

only against the original allottee/tenant but also against the person in occupation of the said premises who is allegedly inducted by the said

¶393

¶394

original allottee/tenant. For taking action against the original

¶395

allottee/tenant on the ground that the other persons are in unauthorised occupation of the said premises was legitimate and permissible as per the provisions of the PP Act.

¶396

Reverting to the Act of 1972, it was intended to provide for

¶397

acquisition and transfer of shares of Indian Insurance companies and undertakings of other existing insurers in order to serve better the need of the economy by securing development of general insurance business

¶398

in the best interests of the community and to ensure that the operation of the economic system does not result in the concentration of wealth to the common detriment, for the regulation and control of such business and for matters connected therewith and incidental thereto. The appointed

¶399

day, as per the Act of 1972 in terms of Section 3(b) means such day not

¶400

being a day later than the 2nd day of January, 1973, as the Central

¶401

Government may, by notification appoint. The Central Government by notification has appointed the said day as 1st January, 1973. There is no

¶402

dispute in this behalf. It is also not in dispute that the erstwhile company

¶403

¶404

was covered by the definition of existing insurer within the meaning of

¶405

section 3(e) of the said Act of 1972. By virtue of section 4 of this Act, on the appointed day (i.e. 1st January, 1973), all the shares in the capital of

¶406

every Indian Insurance Company stood transferred to and vested in Central Government free of all trusts, liabilities and encumbrances affecting them. Further, the erstwhile company was to now function as a

¶407

Government company. Suffice it to note that this enactment was intended to acquire the shares of the Indian Insurance Company, providing for scheme for reorganisation of general insurance business (Chapter V of the Act). Section 16 provides for scheme for mergers of companies. In the present case, the scheme in respect of erstwhile company, under section 16 of the Act of 1972, was notified by the Central Government, vide notification dated 31st December, 1973. As per the said notification, scheme was to come into force on the 1st day of January, 1974, being the specified day. The effect of the said scheme was to transfer all undertakings of every merged company to and vested in the transferee company (Respondent No.1 herein). Clause 4(2) of the

¶408

Scheme provides that the undertaking shall be deemed to include all

¶409

¶410

assets, rights, powers, authorities and privileges and all properties, movable and immovable, cash balance, capital and reserve fund, investments and all other rights and interests in or arising out of such

¶411

property, as were immediately before the specified day in the ownership, possession, power or control of such merged company, whether within or without India and all books of accounts, registers, records and all other documents of whatever nature relating thereto; and shall be deemed to include all borrowings, liabilities and obligations of whatever kind then subsisting of the merged company. The effect of transfer is provided in clause-5 of the said scheme. Clause-9 stipulates that on the specified

¶412

day, the merged company shall stand dissolved without winding up.

¶413

Relying on the provisions of the Act of 1972 and the scheme

¶414

referred to above, it was contended that as per the Act of 1972, all the

¶415

shares in the capital of the erstwhile company stood transferred to and

¶416

vested in the Central Government. That does not mean that the

¶417

properties of the insurer company (erstwhile company) vested in the

¶418

Central Government before the scheme was notified which came into

¶419

¶420

force from 1st day of January, 1974. For the reasons already noted while

¶421

dealing with the earlier submission, it is not necessary to elaborate on

¶422

this matter. Inasmuch as, the provisions of the P.P. Act does not require

¶423

that the Central Government should be the owner of the property. As

¶424

aforesaid, even if it is shown that the Central Government has had lesser

¶425

right than the ownership right in respect of the given premises, the same

¶426

would acquire the status of public premises. In which case, the premises would become amenable to the rigours of P.P. Act. We have held that by virtue of taking over the management of the undertakings of all insurers pending nationalisation, as per the scheme of the said Act of 1971, the Central Government was in complete control even in respect of the assets and properties of the insurer. This logic is reinforced even by

¶427

the express provision in clause 4(2) of the Scheme of 1973 framed in exercise of powers under Section 16 of the Act of 1972. For, the expression “undertaking” as has always been understood even by the Act of 1971, as deemed to include all assets- properties and rights, powers,

¶428

privileges thereto. The Petitioner on the other hand, was claiming to have

¶429

acquired right on the basis of leave and licence agreement executed i.e.

¶430

¶431

on 20th December, 1972, executed after the said premises acquired the

¶432

status of public premises. As a necessary corollary, the provisions of

¶433

Rent Act would have no application to the said premises on the date of

¶434

execution of the leave and licence agreement. Thus, the Entry of the Petitioner in the said premises, was not lawful for the purposes of the P.P. Act - as no prior consent or approval of the authorised officer under

¶435

the PP Act was obtained. Moreover, the said Leave and Licence agreement dated 20th December, 1972 could not have been executed without the prior approval of the person specified by the Central Government in respect of the erstwhile company as required by section 3 of the Act of 1971; and in any case the status of the Petitioner as tenant could not have been accepted by the General Manager of the erstwhile company without the prior approval of the specified person, as per the said provision.

¶436

For the view that we have taken, the other grounds of

¶437

challenge pressed into service by the Petitioner will be of no avail. Further, it is not necessary for us to examine the grievance about the

¶438

¶439

correctness of the finding of the Appellate Court that the Leave and Licence agreement is invalid. Assuming that the said leave and licence agreement is legal and genuine, that would not take the matter any

¶440

further for the Petitioner. Similarly, even if we were to consider other documents pressed into service on behalf of the Petitioner, for the reasons already recorded, the same will be of no avail. Inasmuch as, in

¶441

law, the entry of the Petitioner in the said premises itself was unlawful, in the context of the provisions of P.P. Act. Since the provisions of P.P. Act became applicable to the said premises on and from 13th May, 1971, it is

¶442

not open to the Petitioner to invoke rights arising on account of the provisions of the Bombay Rent Act. In that, the provisions of the Bombay Rent Act ceased to apply to the said premises from 13th May, 1971.

¶443

Counsel for the Petitioner has placed reliance on the

¶444

exposition of the Apex Court in the case of New India Assurance Company Ltd. V/s. Nusli Neville Wadia & Anr. reported in (2008) 3 SCC

¶445

279, to contend that the Respondent No.1 has not adhered to the

¶446

¶447

guidelines issued by the Central Government. According to the

¶448

Petitioner, the action on the part of the Respondent No.1 is not fair and reasonable. In the first place, the question considered in the said decision was who should begin to lead evidence in a proceedings under the P.P. Act. Further, the principal ground for initiating proceedings in that case was of requirement of the public premises for own use and occupation and incidentally because the tenancy was already terminated. In the present case, the competent authority in the first place issued notice of termination on 12th July, 1980 against the original allottee/tenant(Mr.Erix Voller) on the ground that he had allowed user of the said premises by unauthorised persons – and was not using it himself

¶449

for the purpose let out to him. The original allottee/tenant allowed the said notice of termination to become final. It is only thereafter, show cause notice was issued not only to the said original allottee/tenant but also to the petitioner who was found to be in unauthorised occupation of the suit premises. The said proceedings were contested only by the

¶450

Petitioner. In the present case, the Petitioner is not claiming to be allottee/tenant of the Respondent No.1. The Estate Officer after giving fair

¶451

¶452

opportunity to the Petitioner has recorded finding of fact that the Petitioner was in occupation of the said premises without authority therefor. That finding of fact has been upheld by the Appellate forum, i.e., the City Civil Court. The procedure followed by the Respondent No.1 is in conformity with the requirement of the P.P. Act. It is not possible to countenance the grievance of the Petitioner either about inappropriateness in the conduct of the proceedings or of action of the Respondent No.1 in resorting to eviction of the petitioner from the said premises being arbitrary, malafide, unfair or unreasonable as such. If any other view is taken that will defeat the intent of the P.P. Act, which was to provide for a speedy machinery for eviction of unauthorised occupants of the public premises. Suffice it to observe that the decision pressed into service by the Petitioner is of no avail to the fact situation of the present case.

¶453

To sum up, we hold that the provisions of PP Act became applicable to the said premises on and from 13th May, 1971. Further, the

¶454

entry of the Petitioner and continued occupation of the suit premises is without authority therefor in the context of the provisions of the PP Act;

¶455

¶456

and also not in conformity with the provisions of the Act of 1971. The

¶457

leave and licence agreement dated 20th December, 1972 cannot confer

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higher right in the Petitioner than that of the original allottee/tenant who has suffered the notice of termination issued as back as on 12th July, 1980. Atleast on and from that date, the occupation of the original allottee/tenant and as a consequence of that the Petitioner, who was

¶459

claiming through him, became unauthorised occupant and amenable to action of eviction as well as payment of damages. As mentioned earlier the question regarding damages will be reconsidered by the Estate Officer in view of the limited remand of the proceedings in terms of the impugned decision of the City Civil Court. The order of eviction as passed against the opposite parties does not suffer from any infirmity whatsoever. The same will have to be therefore upheld.

¶460