: 1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2620 OF 2009 Hindalco Industries Limited. ... Petitioner V/s. Air India Limited ... Respondent Mr.Iqbal Chagla i/b Doijode Associates for Petitioner Ms.Ranjana Parikh for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: JUNE 12, 2009 P.C.: 1. The Petitioner has preferred this writ petition against the order passed by the appellate authority under the Public Premises (Eviction of Unauthorised Occupants) Act in Miscellaneous Appeal No.257 of 2001. The petitioner contends that the appellate authority has not considered all the issues raised by it and therefore, the order must be set aside. 2. On 2.7.1971, a leave and licence agreement was entered into between Air India i.e. the Respondent herein and Indian Aluminium under which the latter was granted a licence to use and occupy the premises on the 15th floor of the Air India building for a period of five years. Thereafter on 13.7.1976, a fresh leave & licence agreement was : 2: arrived at between the parties. That agreement was for a period of 5 years from 15.7.1975 to 14.7.1980. It appears that by a notice dated 10/14.2.1995, Air India terminated the licence and demanded the possession of the premises from the Indian Aluminium. A showcause notice was issued on 3.11.1995 u/s 4 of the Public Premises (Eviction of Unauthorised Tenants) Act to Indian Aluminium. Proceedings commenced before the Estate Officer. However,they were terminated abruptly and thereafter a second show-cause notice dated 19.4.1999 was issued. The eviction proceedings commenced again. The Estate Officer by his order dated 3.10.2001 held that the Petitioner was unauthorisedly occupying the premises. That eviction order was challenged by the Indian Aluminium on 12.10.2007 by preferring Miscellaneous Appeal No.257 of 2001 before the appellate authority under the Public Premises (Eviction of Unauthorised Tenants) Act. 3. While the appeal was pending final hearing, pursuant to a scheme of arrangement between the Indian Aluminium and the Petitioner herein, the petitioner contends that by the scheme of arrangement dated 14.1.2005 it succeeded to the business/undertaking of Indian Aluminium, including to its assets. 4. The Petitioner thereafter preferred Chamber Summons No.774 of 2005 in the Miscellaneous appeal for amending the appeal by substituting the name of Indian Aluminium with the Petitioner's name. The Chamber : 3: Summons was allowed by consent on 19.8.2005. Thereafter, Air India filed Notice of Motion No.3996 of 2005 for dismissal of the appeal. Certain additional evidence was brought on record by the Petitioner before the appeal was heard. The appeal was dismissed on 29.11.2008 and hence, the present petition. 5. The main contention of the petitioner is that Air India had not established its case that the premises were required by Air India for itself or that there was any security hazard which Air India faces due to which it was necessary to evict the petitioner. Reliance was placed on the guidelines issued by the Government with respect to eviction of persons from public premises. It was also submitted by the learned Counsel appearing for the Petitioner that after the merger of Indian Aluminium with it, the Petitioner had acquired the assets of Indian Aluminium and therefore was entitled to maintain the appeal. Apart from this, it was contended that since the Petitioner was successor in business, it had all the rights which were available to Indian Aluminium and, therefore, could defend the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act. The learned Counsel pointed out that in fact the Chamber Summons for substituting the name of Indian Aluminium with that of the Petitioner was allowed by consent and therefore, Air India had no right now to contend that the Petitioner was a separate entity and could not continue in the premises in place of Indian Aluminium. Besides, it was contended that if it is presumed that the : 4: Petitioner is a separate legal entity and not a successor to the assets of Indian Aluminium Limited, then an eviction notice ought to have been issued to the Petitioner. 6. The learned Counsel for the Respondent has submitted that the guidelines which have been relied on by the Petitioner do not in any manner give any protection to the petitioner as these administrative guidelines are meant only for the benefit of genuine, non-affluent tenants. She submits that a clarification has been issued by the Government of India and the guidelines are not applicable to large business houses and commercial entrepreneurs. Therefore, according to the learned advocate, the petitioners would in no case be protected by virtue of these guidelines. She points out that in the judgment of the Supreme Court reported in case of New India Assurance Company Limited v/s. Nusli N. Wadia, & Anr., AIR 2008 SC 876 the Supreme Court has adverted to these guidelines and has observed that they do not apply to affluent citizens who occupy public premises unauthorisedly. She then submits that the Petitioner in any event cannot continue in the premises since the original licencee was Indian Aluminium and therefore, although the petitioner may have a right to continue with the appeal, it cannot continue in the premises. 7. The leave and licence agreement dated 2.7.1971 provides that the licencee i.e. Indian Aluminium will not claim any interest in the : 5: licenced premises except with the permission of the licensor. The licencee has waived and has agreed not to avail of any protection against ejectment or otherwise which may be afforded by any governmental or municipal law. The subsequent agreement of 1976 between Air India and Indian Aluminium again was an agreement of leave and licence which commenced from 15.7.1975 till 14.7.1980. The terms and conditions mentioned in the licence were maintained from the earlier agreement. 8. The learned advocate for the respondent has relied on the judgment in the case of Singer India Ltd. v/s. Chander Mohan Chadha & Ors., AIR 2004 SC 4368 in support of the submission that the licence or tenancy cannot be transferred when a scheme of amalgamation under sections 391 and 394 of the Companies Act is sanctioned. The Supreme Court considered its earlier judgments and observed thus: 11. These cases clearly hold that even if there is an order of a Court sanctioning the scheme of amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, rights of tenancy or occupancy of the Transferor Company get vested in and become the property of the Transferee Company. It would make no difference insofar as the applicability of Section 14(1)(b) is concerned, as the Act does not make any exception in favour of a lessee who may have adopted such a course of action in order to secure compliance of law. 9. Therefore, in my opinion, the submission of the learned Counsel for the Petitioner that a separate notice ought to have been issued to Hindalco cannot be accepted. : 6: 10. In any event, there is no gainsaying that a letter terminating the licence was issued to Indian Aluminium. The relationship between Air India and Indian Aluminium was one of the licensor and licensee. Therefore, Hindalco cannot get a better right than what was available to Indian Aluminium. A contention is raised in the Petition, though not argued, that after 1971, Indian Aluminium became a tenant of Air India. This contention also cannot be accepted since despite the amendment of 1971 to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Indian Aluminium chose to enter into a fresh agreement of leave and licence with Air India on 13.7.1974. Apart from this, as rightly submitted by the learned Counsel for the Respondent, the guidelines issued by the Government of India, Ministry of Urban Development and Property Alleviation, Directorate of Estates, do not take the case of Hindalco any further, as these guidelines are meant for genuine, non-affluent tenants and not large business houses and commercial enterpreneurs. The Petitioner would certainly not fall into the category of “genuine, non affluent tenants”. 11. The decision of Air India to reclaim its premises from Hindalco was on the basis that it required the premises for its bonafide use and occupation and in view of the threat to the security of the building. A similar reason for evicting other occupants of the Air India building was stated in the letters terminating the license issued in favour of those occupants. In the case of Ballarpur Industries Limited v/s. Air India Ltd. & : 7: Anr., W.P. No.4911 of 2000, a learned Single Judge of this Court by his order dated 15.11.2000 held that these were sufficient grounds for evicting the occupants from the building. 12. I had taken a similar view in the case of Citi Bank N.A. v/s. Air India Ltd. & Anr., W.P. No.7747 of 2008 by my order dated 12.12.2008. There is sufficient material on record in the present case to indicate that the Air India building was a target during the bomb blasts of 1993 and thereafter it has constantly faced a security threat. Besides this, the wisdom of Air India to house all its offices in its own building cannot be questioned as there is no material on record to indicate that its decision is malafide, arbitrary, capricious, discriminatory or perverse. In these circumstances, I am of the view that the Petitioner not made out any case for interference by this Court it its jurisdiction under Article 227 of the Constitution of India. 13. Petition is therefore rejected. 14. The learned Counsel for the Pettiioner seeks a stay of this order. Stay granted for a period of four weeks.