1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8303 OF 2008 Madhusudan Brijlal Vakharia & Anr. .. Petitioners versus The Board of Trustees of the Port of Bombay .. Respondents Mr.Girish Godbole a/w Mr.Mohd.Akram Bastivi i/by Jal F. Daruwala for the petitioners. Mr.U.J.Makheja a/w Mr.Parag Khandhar i/by Mulla & Mulla C.B. & C for the respondents. CORAM : A.S.OKA, J. DATE : 14th October 2009. JUDGMENT: 1) The questions which arise for consideration in this writ petition under article 227 of the constitution of India are as under; "a) Whether the provisions of the Maharashtra Rent Control Act, 1999 are applicable to a premises owned by the Board of 2 Trustees of the port of Bombay? b) Whether an application for fixation of standard rent in respect of such premises is maintainable in law?” 2) The first and second petitioners are the trustees of the J.B.Marzban Trust . The respondents are the Board of Trustees of the port of Bombay . The first and second petitioners are claiming to be the tenants of the respondents in respect of the building admeasuring 1763.4 square meters situated at Ballard estate, Mumbai. The petitioners filed an application under the provisions of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said act of 1999) for fixation of standard rent in respect of the said premises. The said application was filed in the court of the small causes at Bombay. A reply was filed by the respondents contending that the application for standard rent was not maintainable in as much as the provisions of the said act of 1999 were not applicable to the suit premises. The learned trial judge framed a preliminary issue. The learned trial judge held that the application was maintainable. A revision application was filed by the respondents before the appeal bench of the court of small causes. By the impugned judgement and order, the appeal bench held that what was let out to the petitioners was an open land and therefore, the provisions of the said act of 1999 will not be applicable. The revision application was accordingly 3 allowed and the standard rent application was accordingly dismissed. This is the judgement and order which is impugned in this petition under article 227 of the constitution of India. 3) On 11th August 2009, this court passed an order that the writ petition will be disposed of the stage of admission. On the earlier date,the attention of the learned counsel appearing for the petitioners was invited to a decision of this court dated 8th September 2009 in writ petition no. 5023 of 2009 (Life insurance Corporation of India and another versus Banatwala and Co.) By the said decision, this court held that the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said act of 1999) have overriding effect over the provisions of the said act of 1999. This court held that an application for fixation of standard rent under the provisions of the said act of 1999 was not maintainable in respect of the premises to which provisions of the said act of 1971 were applicable. The learned counsel appearing for the respondents relied upon a decision of this court in the case of Pradeep B. Chinal and others versus Sindhu Resettlement Corporation Ltd, Bombay and others (2009 (3) Maharashtra Law Journal 671). 4) The learned counsel appearing for the petitioners submitted that 4 the application for standard rent filed by the petitioners has been dismissed only on the ground that the tenancy related to open land. He submitted that the application has not been dismissed on the ground that the provisions of the said act of 1971 have been given overriding effect over the provisions of the said act of 1999. He submitted that the aforesaid grounds cannot be considered by this court. Nevertheless he has made submissions on the aforesaid aspects. 5) The learned counsel appearing for the petitioners pointed out that the said act of 1999 came into force on the 31 March 2000. He pointed out that the said enactment has been made in exercise of powers conferred on the state legislature under entry no. 6, 7 and 13 of the concurrent list of the seventh schedule of the Constitution of India. He submitted that the Apex court has held that the said act of 1971 falls under entry 32 of the first list of the seventh schedule of the Constitution in so far as it relates to the property of the Central Government. He submitted that in so far as it relates to a property not held by the central government, it is an enactment made vide entry nos.6,7 and 13 of the concurrent list. He submitted that the said act of 1999 has been enacted after receiving assent of the president of India and therefore, on account of article 254 (2) of the Constitution of 5 India, the said act of 1999 will prevail. He submitted that in any case under the provisions of the said act of 1971 there is no provision for fixation of standard rent and hence, there is no inconsistency between the two enactments. He submitted that even if there is some inconsistency, the said act of 1999 being the latter act having received assent of the president of India will prevail. Lastly he submitted that there was more than sufficient material on record to show that what was let out to the petitioners was the land with building and not an open land. He, therefore ,submitted that the impugned order is illegal. 6) The learned at counsel appearing for the respondents submitted that the provisions of the said act of 1971 are admittedly applicable to the suit premises and in view of settled law, the provisions of the said act of 1971 override the provisions of the said act of 1999. He submitted that only on this ground this court ought not to exercise writ jurisdiction. 7) I have given careful consideration to the submissions. The application for fixation of standard rent made by the petitioners proceeds on the footing that the provisions of the said act of 1999 are applicable to the suit premises. It is not in dispute that the suit 6 premises is a "public premises" within the meaning of the said act of 1971. In the case of life insurance Corporation (supra) this court has decided the issue as to whether the provisions of the said act of 1971 have overriding effect over the provisions of the said act of 1999. It is necessary to consider what is held by this court in the said decision which is as follows: “10. The factual position in this petition is slightly different. Here the question is whether the said Act of 1999 will prevail over the provisions of the said Act of 1971 in view of the Article 254 (2) of the Constitution of India. The said Act of 1999 is a law made by the legislature of the State in respect of matters enumerated in Entries 6 and 46 of the Concurrent List and the said law has been enacted long after the said Act of 1971 was enacted. Moreover, the said Act of 1971 is also a law made under the concurrent list. The question will be what is the effect of the said Act of 1999 having being reserved for consideration of the President and having received the assent of the President of India. In this behalf, it will be necessary to refer to the decision of the Apex Court in the case of Crawford Bayley & Co (supra). This was a case where proceedings were sought to be initiated against the appellant before the Apex Court under the provisions of the said Act of 1971. One of the grounds urged by the appellants was that the provisions of the said Act of 1999 shall prevail over the provisions of the said Act of 1971. In a writ petition filed by the said appellant before a Division Bench of this Court a contention was raised based on the fact that the said Act of 1999 was a subsequent legislation and the same had received assent of the President of India. In fact the said contention is specifically noted by the Division Bench in paragraph 3 of its decision [2003(9) LJSOFT 27]. The said contention was elaborately dealt with in paragraph 10 of the decision of the Division Bench and was rejected relying upon the decision of the Apex Court in the case of Kaiser-I-Hind Ltd (supra). The Division Bench held that the provisions of the said Act of 1971 will prevail. The said decision of this Court was challenged before the Apex 7 Court. It will be necessary to refer to the contention raised by the appellant before the Apex Court which is incorporated in paragraph 6 of the said decision in the case of Crawford Bayley & Co (supra) which reads thus: “6. The appellant raised five grounds before the High Court; first the provisions of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the Maharashtra Rent Act) shall prevail over the provisions of the said Act of 1941 in view of Article 254(2) of the Constitution of India as the Maharashtra Rent Act applies to all premises belonging to the respondent and therefore, appellant 1 is a protected tenant under the provisions of the Maharashtra Rent Act and the order of eviction for appellan 1 cannot be made. It was submitted that the Maharashtra Rent Act is law made by the legislature of the State in respect of matters enumerated under the Concurrent List i.e Entries 6, and 46. The Public Premises Act, 1971 is an earlier law made by Parliament under the Concurrent List i.e Entry 6. It was submitted since it was reserved for the assent of the President of India as it contained the repungnant provisions to the earlier law made by Parliament. Therefore, the later Act i.e the Maharashtra Rent Act having been reserved and having received the assent of the President of India, would prevail over the Act, 1971.” In paragraphs 15 and 16, the Apex Court referred to its earlier decision in the case of Accountant and Secretarial Services (P) Ltd Vs. Union of India [(1988) 4 Supreme Court Cases 324] which dealt with the issue whether the said Act of 1971 will prevail over the West Bengal Premises Act, 1956. In paragraph 17 of the decision the Apex Court observed thus: “17. Therefore, His Lordship has held that the premises of the Bank shall also be governed by the provisions of the Act, 1971. In view of the decision of this Court, the argument made by the appellant has no legs to stand.” Therefore, the argument that the said Act of 1999 would prevail over the said Act of 1971 in view of Article 254(2) of the Constitution of India has been considered and rejected by a Division Bench of this Court which has been affirmed by the Apex 8 Court. 11. It will be also necessary to consider the decision of the Apex Court in the case of M/s.Jain Ink Manufacturing Company (supra). This was a case where the 1st petitioner herein was owner of a premises. The 1st petitioner initiated proceeding under the said Act of 1971 against the appellant before the Apex Court. The matter was carried to the High Court on account of preliminary objections raised to the maintainability of proceedings. Before the Apex Court, a submission was made on the basis of the provisions of the Delhi Rent Control Act, 1958. A submission was made that the said Delhi Rent Control Act will override the provisions of the said Act of 1971. One of the contentions raised before the Apex Court was that though the said Act of 1971 was passed in 1971, it was given retrospective effect from September 15, 1958 and therefore the Delhi Rent Control Act passed subsequently will have overriding effect. However, the said argument was not accepted by the Apex Court and it was held that the said Act of 1971 is a subsequent legislation. 12. In this context, it will be necessary to refer to the decision of the Apex Court in the case of Kaiser-I-Hind Pvt Ltd (supra). An argument was advanced before the Apex Court that having regard to Article 254 (2) the provisions of the said Act of 1947 would prevail over the Act of 1971. Reliance was placed on the fact that the said Act of 1947 was a temporary enactment. The duration and applicability of the said Act was extended from time to time by State Legislature including Maharashtra Act No.16 of 1986. The majority view taken by the Apex Court is that the assent given by the President of India to the extension Acts of 1981 and 1986 of the said Act of 1947 was only for the limited purpose of repungency to the Transfer of Property Act, 1882 and the said assent was not applicable to the said Act of 1971. The majority view of the Apex Court is that Maharashtra Act No.16 of 1986 did not amount to new enactment and when the said Act of 1971 came into force, the existing Act, namely, said Act of 1947 would be void so far as it is repungant to the law made by the Parliament in view of Article 254(1) of the Constitution of India. The Apex Court has not considered the subsequent Rent Control Legislation in the form of the said Act of 1999. 9 13. As far as the decision of the learned single Judge of this Court in the case of Pradeep Babubhai Chinal (supra) is concerned, the same deals with overriding effect of the said Act of 1971 over the provisions of the said Act of 1947. The said decision does not consider the effect of the said Act of 1999. 14. Thus, in view of the decision of this Court and the Apex Court in the case of Crawford Bayley & Company (supra), the argument that the provisions of the said Act of 1999 shall prevail over the provisions of the said Act of 1971 cannot be accepted as the said argument has not found favour with the Apex Court. The fact remains that the argument based on the said Act of 1999 having received assent of the President of India and the argument based on Article 254(2) of the Constitution of India was rejected by a Division Bench of this Court and the said argument was not accepted by the Apex Court. 15. Therefore, the submission of the learned counsel appearing for the petitioners that the provisions of the said Act of 1971 have overriding effect on the said Act of 1999 will have to be accepted in view of the aforesaid decisions of the Apex Court”. 8) This court also considered the question of maintainability of an application for fixation of standard rent. On this aspect it was held thus : “16. Now the question which remains to be decided is whether the said Act of 1971 will prevail over all the provisions of the said Act of 1999 including the provisions under the said Act of 1999 regarding fixation of standard rent. Reliance is placed in this behalf on the decision of the Karnataka High Court in the case of Bharat Gold Mines Ltd (supra). The learned counsel appearing for the respondent relied upon what is observed by the Apex Court in paragraph 70 in the decision in the case of Ashoka Marketing Ltd (supra). What is held by the Apex Court is the provisions of said Act of 1971 to the extent they cover premises falling within the ambit of Rent Control Act, override the 10 provisions of the Rent Control Act. Therefore, the person in possession of the premises which is a public premises within the meaning of said Act of 1971 cannot claim the protection of the provisions of the Rent Control Act. 17. There may not be a provision to the said Act of 1971 for fixing standard rent but there are provisions in the said Act of 1971 which empower the authorities to pass an order for recovery of rent and/or compensation from the tenant. Apart from that, in view of the overriding effect of the said Act of 1971, an occupant of the public premises cannot claim protection under the Rent Control Legislation in as much as section 15 of the said Act of 1971 ousts the jurisdiction of the Courts under the Rent Control Legislation to deal with the matter of recovery of rent in respect of public premises. Therefore, the said submission made by Mr.Thakkar, the learned senior counsel appearing for the petitioner cannot be accepted. 18. Thus, it will have to be held that the provisions of the said Act of 1971 override the provisions of the said Act of 1999. Consequently, application for fixation of standard rent will not be maintainable”. It must be stated here that the submissions which are made by the learned counsel appearing for the petitioners where specifically made before a division bench of this court in the case of Crawford Bayley & Co versus union of India (2003(6) Bom.C.R.112). In paragraph 3 of the said decision similar contentions raised have been reproduced. In paragraph 10 the said submissions based on article 254(2) have been considered. The division bench specifically negatived the said contention. The division bench in paragraph 10 held thus: “Thus, the Supreme Court has in clear terms held that the provisions of the Bombay Rent Act do not prevail over the 11 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”. The said decision of the division bench has been confirmed by the apex court a reference to which has been already made in the decision of this court in the case of the life insurance Corporation of India (supra). Thus the argument based on assent of the president of India being granted to the subsequent enactment of the said act of 1999 has been negatived by the apex court. Therefore, the submissions made by the learned counsel appearing for the petitioners cannot be accepted. 9) It is true that the appellate court has not thrown out the application for fixation of standard rent on the ground that the provisions of the said act of 1971 have overriding effect. However, that is the law laid down on the subject by the apex court in the case of Crawford Bayley & Co (supra). In view of the decision of this court in the case of life insurance Corporation of India, the application is itself was not maintainable. This court is exercising power of superintendence under article 227 of the Constitution of India. If this court finds that the ultimate order passed by the appeal bench is correct, and is consistent with the settled law, no interference can be 12 made. 10) Accordingly, the writ petition stands dismissed. There will be no order as to costs. (A.S.OKA,J)