IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 OP.No. 1708 of 1993(C) ---------------------- PETITIONER(S): --------------- 1. Y.N.SARASWATHI BHAT, W/O. LATE Y.NARAYANA BHAT, MARUTHI VILAS HOTEL, ERNAKULAM, KOCHI-21. 2. Y.N. RAGHAVENDRA, S/O. LATE Y.N.BHAT, DO. DO. 3. Y.N.GEETHA, D/O.Y.NARAYANA BHAT, DO. DO. 4. Y.N.SANTARAM, S/O. LATE Y.NARAYANA BHAT, DO. DO. 5. Y.N.JAYANTHY, D/O.LATE Y.NARAYANA BHAT, DO. DO. BY ADVS. M/S. P.R.VENKATESH, K.A.ABDUL HAMEED & MEERA DISHARDHAN. RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRRESENTED BY THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS (BANKING DIVISION), NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 3. THE DISTRICT JUDGE, ERNAKULAM (FUNCTIONING AS THE APPELLATE AUTHORITY UNDER THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971) 4. THE ESTATE OFFICER, VIJAYA BANK, H.O. 41/2, M.G.ROAD, BANGALORE. 5. THE MANAGER, VIJAYA BANK, BROADWAY BRANCH, ERNAKULAM, KOCHI. GOVERNMENT PLEADER SRI.NOBLE MATHEW – R2 SRI.O.RAMACHANDRAN NAMBIAR - R4 SRI.C.P.DAMODARAN NAYAR FOR R5 SRI.D.KRISHNA PRASAD FOR R5 SRI.JOHN VARGHESE FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP 1708/1993 APPENDIX PETITIONERS' EXTS. EXT.P1 - TRUE COPY OF THE ORDER IN E.A.NO.999/82 IN E.P.103/80 INO.S.350/75 ON THE FILES OF THE PRL. SUB JUDGE, ERNAKULAM DT. 9.1.1984. EXT.P2 - TRUE COPY OF ORDER IN E.A. 1000/83 IN E.P. NO.103/80 IN O.S.350/75. EXT.P3 - TRUE COPY OF NOTICE ISSUED BY VIJAYA BANK THROUGH THEIR COUNSEL DT. 13.6.1988. EXT.P4 - TRUE COPY OF REPLY NOTICE ISSUED BY THE COUNSEL FOR THE PETITIONERS TO EXT.P3 DT. 16.9.1988. EXT.P5 - TRUE COPY OF NOTICE ISSUED BY THE 4TH RESPONDENT UN/S. 4(1) OF THE PUBLIC PERMISES ACT, DT. 15.10.1991 TO THE PETITIONERS. EXT.P6 - TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONERS THROUGH THEIR COUNSEL DT. 25.10.1991. EXT.P7 - TRUE COPY OF ARGUMENT NOTES FILED BY THE COUNSEL FOR THE PETITIONERS BEFORE THE ESTATE OFFICER. EXT.P8 - TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DT. 20.6.92. EXT.P9 - TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS NO.112/1992 PRESENTED ON 7.7.1992. EXT.P10 - TRUE COPY OF THE JUDGMENT DT. 16.12.1992 IN APPEAL NO.112/92. /TRUE COPY/ K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- O.P. NO. 1708 OF 1993 - C ----------------------------------------- Dated 14th January, 2009. JUDGMENT Balakrishnan Nair, J. The petitioners are the tenants of a building complex in a plot of 30 cents of land. The owner of the building was in default to Vijaya Bank, Broadway Branch, Ernakulam, represented by the 5th respondent Manager. The above land and building complex were brought to sale by the Bank in execution of the decree obtained by it against the owner. The Bank itself purchased the said property. On finding that the buildings are occupied by tenants, symbolic delivery of the property was made by the execution court to the Bank. The petitioners continued as tenants under the Bank. The Bank wanted the buildings for its own use. Initially, the Bank issued a notice, terminating the lease and requesting to give vacant possession of the premises to it. The proposal was to proceed against them under the provisions of the OP 1708/93 2 Kerala Buildings (Lease and Rent Control) Act. Later, the Bank has chosen to invoke the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The Estate Officer of the Bank was moved. The said officer, after following the procedure under the above said Act and hearing both sides, passed Ext.P8 order on 20.6.1992, directing the petitioners to give vacant possession of the premises. Aggrieved by that order, the petitioners invoked the statutory remedy available to them by appealing to the District Court. The said court dismissed the appeal by Ext.P10 judgment. Challenging Exts.P8 and P10 and also Ext.P5 notice issued by the Estate Officer, the 4th respondent herein, this Original Petition was filed. 2. The petitioners contended that the provisions of the Kerala Buildings (Lease and Rent Control) Act will prevail over the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as the former Act has the assent of the President. This submission is made, relying on Article 254(2) of the Constitution of India. Relying on Exts.P1 and P2 orders, it is submitted that the petitioners are genuine tenants under the original owner and therefore, OP 1708/93 3 resort to the proceedings under the Central Act to evict them, is unjustified. 3. In view of the point raised by the petitioners regarding the supremacy of the Kerala Buildings (Lease and Rent Control) Act over the provisions of the aforementioned Central Act, the learned Single Judge referred the O.P for decision by the Division Bench. But, in view of the subsequent decisions of the Apex Court, including the one in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn [(2002)8 SCC 182], the contentions of the petitioners regarding the efficacy of the Kerala Act, even in the face of the Central Act, are liable to be rejected and we do so. But, during the pendency of the Original Petition, the Central Government passed a resolution dated 30.5.2002 and published the same in the gazette dated 8.6.2002, formulating certain guidelines to be followed by public sector undertakings, including the 5th respondent's Bank, in the matter of employing the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, to evict genuine tenants under them. The said guidelines read as follows: OP 1708/93 4 “1. The question of notification of guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of Public Sector Undertakings/financial institutions has been under consideration of the Government for some time past. 2. To prevent arbitrary use of powers to evict genuine tenants from public premises and to limit the use of powers by the Estate Officers appointed under section 3 of the PP (E) Act, 1971, it has been decided by Government to lay down the following guidelines: (i) The provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (P.P. (E) Act, 1971] should be used primarily to evict totally unauthorised occupants of the premises of public authorities or subletees, or employees who have ceased to be in their service and thus ineligible for occupation of the premises. (ii) The provisions of the P.P.(E) Act, 1971 should not be resorted to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the premises were let either by the public authorities or the persons from whom the premises were acquired. (iii) A person in occupation of any premises should not be treated or declared to be an unauthorised occupant merely on service of notice of termination of tenancy, but the fact of unauthorised OP 1708/93 5 occupation shall be decided by following the due procedure of law. Further, the contractual agreement shall not be wound up by taking advantage of the provisions of the P.P.(E) Act, 1971. At the same time, it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming possession. In other words, the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants. (iv) It is necessary to give no room for allegations that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent, or that a change in tenancy was permitted in order to benefit particular individuals or institutions. In order to avoid such imputations or abuse of discretionary powers, the release of premises or change of tenancy should be decided at the level of Board of Directors of Public Sector Undertakings. (v) All the Public Undertakings should immediately review all pending cases before the Estate Officer or Courts with reference to these guidelines, and withdraw eviction proceedings against genuine tenants on grounds otherwise than as provided under these guidelines. The provisions under the P.P.(E) Act, 1971 should be used henceforth only in accordance with these guidelines. 3. These orders take immediate effect.” 4. The learned counsel for the petitioners submitted that the petitioners are entitled to get the protection of the above said OP 1708/93 6 guidelines. The Bank is bound to review all pending cases before the Estate Officer and Courts with reference to the guidelines and decide whether the eviction proceedings should be withdrawn or not. 5. We heard the learned standing counsel for the Vijaya Bank, on this point. The learned counsel submitted that the guidelines issued by the Central Government are only to guide and not to govern. In other words, they are not binding on the Public Sector Banks, it is submitted. 6. We feel that Vijaya Bank being a public sector Bank, cannot ignore the guidelines issued by the Central Government. The provisions of the Act constituting the said Bank also enable the Central Government to issue guidelines. The above quoted guidelines only stipulate that the public sector undertakings and other financial institutions should follow a fair procedure and should not evict genuine tenants for extraneous or ulterior purposes. Therefore, we are inclined to direct the competent authority of the Vijaya Bank to examine the case of the petitioners in the light of the above quoted guidelines. Clause 2(v) of the guidelines specifically stipulates that matters pending before the courts are also liable to be reviewed. Therefore, the OP 1708/93 7 competent authority of the Bank is directed to take a decision on the claim of the petitioners for the benefits of the above quoted guidelines. The said authority shall issue notice to the petitioners, hear their objections and take a decision in the matter within two months from today. If the petitioners present a copy of this judgment before the 5th respondent within one month from today, further proceedings pursuant to the impugned orders in this Original Petition will remain in abeyance. When a final decision is taken as directed above, if it is found that the petitioners are not entitled to get the benefits of the above guidelines, further action pursuant to Exts.P8 and P10 could be taken to evict them. It is made clear that we have only said that the Bank is bound to go by the guidelines. It is also clarified that we have not expressed any opinion on the claim of the petitioners that they are entitled to the benefits under the said guidelines. The same shall be decided by the Bank, based on the materials placed before it by the OP 1708/93 8 petitioners. The Original Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. Nm/