-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.l854 of 2002 M/s H R Gandhi and ors.....Petitioners vs The Oriental Insurance Co.....Respondent Mr.A.K.Abhyankar with Mr. R S Patil for petitioners Mr V.Y.Sanglikar for respondent no.l Mr.P.M.Pradhan for respondent no.l CORAM: A.P.SHAH & D.G.KARNIK JJ. CORAM: A.P.SHAH & D.G.KARNIK JJ. CORAM: A.P.SHAH & D.G.KARNIK JJ. Dated l0.l.2005 Dated l0.l.2005 Dated l0.l.2005 P.C: Heard advocates. l. The lst petitioner was the tenant of respondent no.l Orient Insurance Company Ltd in respect of Room no. 9 Kirti Building situated at Dr.V.B.Gandhi Marg Mumbai. In l989 the lst petitioner assigned and transferred tenancy rights in favour of the petitioner alongwith running business together with good will, trade name, furniture, fixtures and fittings etc. The lst respondent by its notice dated l6.3.l995 terminated the tenancy of the lst petitioner on the ground that the lst petitioner had illegally assigned and sub-let and/or otherwise parted with possession of -2- the said premises to the 2nd petitioner. By the said notice dated l6.3.l995 the lst petitioner was called upon to quit, vacate and hand over quiet, vacant and peaceful possession of the premises upon the expiry of the tenancy month in which the service of termination notice was effected. As the petitioners failed to vacate the premises the respondent no.2 Estate Officer issued notice dated 3l.7.l995 - one being under sub- section (l) of clause (b) (ii) of sub-section (2) of section 4 and other under sub-section (3) of section 7 of the Public Premises (Eviction of Unauthorised Occupants)Act, l97l. The petitioners appeared and filed their written statement challenging the maintainability of the proceedings both on legal and factual grounds. By order dated 30.l0.l998 passed by the Estate Officer under section 5(l), section 7(2) and 2(a) of the said Act, petitioners were held to be in unauthorised occupation of the said room and hence called upon to vacate the said premises within 30 days from the date of the impugned order were also directed to pay damages in the sum of Rs.82,902 towards the arrears and future damage at the rate of Rs.2022 per month. 3. Being aggrieved by the order dated 30.l0.l998 -3- petitioners preferred Appeal No.ll5 of l998 challenging the order passed by the Estate Officer before the Principal Judge, City Civil Court, Mumbai. The learned Principal Judge by his order dated l8.2.2002 confirmed the order of eviction passed by the Estate Officer but set aside the order directing the petitioners to pay damages at the rate of Rs.2022 per month and remanded the matter to the Estate Officer with direction to both parties to adduce oral and documentary evidence to justify their claim and to decide the said aspect afresh. The order of the learned Principal Judge confirming the order of eviction is impugned in the present petition. 4. We have heard Mr.Abhyankar, learned counsel appearing for the petitioners and Mr.V.Y.Sanglikar appearing for the respondent no.l and Mr.P.M.Pradhan for respondent no. 3. 5. Both Estate Officer and learned Principal Judge recorded a concurrent findings of fact that the premises have been unauthorizedly transferred by the petitioner no.l to the petitioner no. 2. The fact that there was unlawful transfer is not disputed by Mr Abhyankar learned counsel for the -4- petitioners. Mr.Abhyankar however,contended that the provisions of Maharashtra Rent Control Act, l979 would prevail over the provisions of the Public Premises ( Eviction of Unauthorised Occupants)Act, l97l in view of Article 254(2) of the Constitution. According to Mr. Abhyankar the Maharashtra Rent Control Act applies to all premises belonging to government companies and statutory corporations and since the petitioners are protected tenants under Mah Rent Control Act they cannot be evicted except in accordance with the provisions of the Mah Rent Control Act. Mr Abhyankar submitted that the Mah Rent Control Act being a later Act and having received assent of the President of India would prevail over the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, l97l. 6. We are unable to accept the contention of Mr Abhyankar in view of the decision of the Division Bench in Writ Petition No.3l05 of 2002 ( M/s Crawford Bailey and Co and ors vs. Union of India and ors decided on 25.4.2003) to which one of us(Shah J.) was a party. The Division Bench has held that the provisions of the Maharashtra Rent Control Act would not prevail over the provisions -5- of the Public Premises( Eviction of Unauthorised Occupants ) Act, l97l.The relevant observations of the Division Bench are reproduced herein below: "It is clear that so far as the laws made on the subjects in the Concurrent List are concerned,in case of repugnancy between the law made by the Parliament and State Legislature,the law made by the Parliament prevails. An exception has been made to this general rule by sub-article (2) of Article 254 which lays down that if the Legislature of a State makes any law on a subject on which Parliament has already made a law, then in case of repugnancy of the provisions of two laws, the law made by the Legislature, in case such law has been reserved for consideration of the President and has received his assent, would prevail in the State. In the present case, admittedly the Public Premises Act is a law made by the Union Parliament on a subject in the Concurrent List and was in existence in l999 when the Maharashtra Rent Act was enacted. It is also an admitted fact that the Maharashtra Rent Act was reserved for -6- consideration of the President and received assent of the President. The submission of the petitioners is that as the tenancy of the petitioners is protected by the provisions of the Maharashtra Rent Act and it prescribes a different procedure for eviction of tenants than the one which is provided in the Public Premises Act, there is a clear repugnancy between the provisions of the Maharashtra Rent Act and the Public Premises Act and as the Maharashtra Rent Act has received assent of the President of India, its provisions would prevail over the provisions of the Public Premises Act and therefore, the show causes notice issued by the respondent no 2 is without authority of law. It is an admitted position that the field which is presently occupied by the Maharashtra Rent Act was till its enactment in the year l999 was occupied by the Bombay Rent Act which was enacted by the Legislature of the State of Maharashtra and that Act had also received the assent of the President of India. In view of the correspondence produced by the Government of Maharashtra before us, pursuant to a -7- direction issued by us, it is clear that the assent of the President of India so far as the provisions of the Maharashtra Rent Act are concerned, was sought and received in relation to the provisions of the Transfer of Property Act and Presidency Small Causes Court Act and not in relation to the provisions of the Public Premises Act. Thus, so far as the aspect of assent of the President of India is concerned, the position of the Bombay Rent Act and the Maharashtra Rent Act is identical. The Supreme Court in its judgment in the case of Kaisar-I-Hind Pvt Ltd referred to above, has considered the provisions of Article 254, the provisions of the Bombay Rent Act and the provisions of the Public Premises Act. In paragraph 28, after referring to a judgement of the Division Bench of this court, which was under challenge before the Supreme Court in that case, the Supreme Court has observed: "Thereafter, the Court rightly relied upon the decision in Gram Panchayat case for arriving at the conclusion that the assent -8- of the President was sought to the Extension Acts for the purpose of overcoming its repugnancy between the Bombay Rent Act on the one hand and the Transfer of Property Act and the Presidency Small Cause Courts Act on the other. The efficiency of the President’s assent was limited to that purpose only. Therefore, the Public Premises Eviction Act would prevail and not the Bombay Rent Act". Thus, the Supreme Court has in clear terms held that the provisions of the Bombay Rent Act do not prevail over the provisions of the Public Premises Act. In this view of the matter therefore, the submission of the petitioners that the provisions of the Maharashtra Rent Act would prevail over the provisions of the Public Premises Act has no substance and has to be rejected". 7. In the result there is no reason to interfere with the order passed by the learned Principal Judge of the City Civil Court, Bombay. Petition is accordingly dismissed. -9- At the request of the learned counsel for the petitioner, this order is stayed for a period of four weeks.