1 wp.4450.10.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4450 OF 2010 Shri. Ramchandra B. Relwani, Age 73 years, Occ. Retired, Residing at Flat No.601, 16 th Road, Shree Ishwar Sadan, Bandra (West), Mumbai 400 052. ... Petitioner Versus Shri. Raees Ahmed Faruque, adult, Indian Inhabitant, residing at Flat No.1, Ground Floor, B-Wing, Saryu Apartment, Mira Bhayander Road, Naya Ngar Mira Road (E), Thane 401 107. ... Respondent -------- Mr. C.K.Tripathi i/b Mr. Akhilesh Singh for the Petitioner. Mr. Rajesh Khobragade a/w Mr. Pandey for the Respondent. -------- CORAM : A.S.OKA, J. THE DATE ON WHICH SUBMISSIONS ARE HEARD: 28 th October, 2010. DATE OF PRONOUNCEMENT OF JUDGMENT : 23 rd December, 2010. JUDGMENT : 1 Writ petitioner is the applicant in an application made under Section 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act”) before the Competent Authority. The 2 wp.4450.10.doc Respondent to this writ petition is the respondent in the said application. 2 According to the case of the Petitioner, he is the owner of flat No.1 more particularly described in paragraph No.1 of the petition. The said flat is hereinafter referred to as “the suit flat”. According to the case of the Petitioner, in October, 2001 he granted leave and license to the Respondent to use and occupy the suit flat for a period of 11 months. The case of the Petitioner is that after expiry of the period of 11 months, the period of license was extended by a further period of 33 months. 3 As the Respondent did not vacate the suit flat, the aforesaid application under Section 24 of the said Act was filed by the Petitioner before the Competent Authority. 4 An application was made by the Respondent in the said application for eviction for grant of leave to defend the application. By order dated 6 th October, 2008, the Competent Authority rejected the said application. By a separate judgment and order passed on the same day, the Competent Authority proceeded to pass an order of eviction against the Respondent. The Petitioner made an application under Section 45 of the said Act before the Competent Authority for execution of order of possession. In the meanwhile, on 4 th December, 2008, the Respondent preferred a revision application under Section 44 of the said Act before the Additional Commissioner for challenging the order of eviction. On the 3 wp.4450.10.doc application for execution made by the Petitioner, an order was passed by the Competent Authority on 15 th December, 2008 authorizing the Superintendent to take possession of the suit flat, if necessary, by taking police help. Accordingly, on 18 th December, 2008, the Superintendent in the office of the Competent Authority executed warrant of possession and obtained possession of the suit flat under a Panchanama. The Superintendent handed over the possession to the Petitioner. 5 On 30 th June, 2009, the Respondent committed trespass upon the suit flat and obtained forcible possession thereof. The Petitioner lodged FIR against the Respondent for offences under Sections 448, 504 and 506 of the Indian Penal Code. It is contended that the Respondent was arrested in connection with the said offence and was enlarged on bail. 6 In the meanwhile, the revision application preferred by the Respondent against the order of eviction was taken up for hearing by the Additional Commissioner. In fact, on 27 th April, 2009, both the Petitioner and the Respondent filed their written submissions in the revision application. By the judgment and order dated 20 th July, 2009, the Additional Commissioner rejected the revision application. The Additional Commissioner held that there were two leave and license agreements executed between the parties for the first period of 11 months and for the second period of 33 months which were duly proved and that the said 4 wp.4450.10.doc agreements were conclusive evidence. The learned Additional Commissioner noted the submission of the Respondent that he was claiming that there was an agreement for sale executed by the Petitioner. The Additional Commissioner observed that the Respondent had not filed any suit for specific performance of the alleged agreement. After observing that the Respondent has failed to prove his case and that he wants to continue in possession without any valid reason, the learned Additional Commissioner noted the fact that possession of the suit flat was already taken over by the Petitioner. 7 It must be noted here that after the disposal of the revision application, the Petitioner filed a Writ Petition No. 8247 of 2009 in this Court seeking a direction for restoration of possession. By order dated 11 th January, 2010, the writ petition was withdrawn with liberty to file appropriate proceedings. 8 It appears that thereafter the Petitioner filed an application for execution of order of eviction before the Competent Court. After referring to order dated 11 th January, 2010 passed by this Court, the Competent Authority passed an order dated 5 th March, 2010 by observing that the Petitioner should seek clarification from this Court. Thereafter, the Petitioner filed Civil Application No. 838 of 2010 in the disposed of writ petition. By order dated 5 th April, 2010, this Court disposed of the civil application by granting liberty to the Petitioner to file appropriate 5 wp.4450.10.doc proceedings. Accordingly, present writ petition has been filed by the Petitioner for challenging the order dated 5 th March, 2010 passed by the Competent Authority. 9 The learned counsel appearing for the Petitioner submitted that after taking forcible possession of the suit flat, the Respondent continued to prosecute the revision application before the Additional Commissioner and the said revision application was dismissed on merits thereby confirming the order of eviction. He submitted that the order of the Competent Authority has merged with the order of the Revisional Authority and therefore, application for execution filed by the Petitioner was maintainable. He submitted that the possession of the Respondent who has forcibly taken over the suit flat by committing trespass, cannot be protected. He placed reliance on the decision of the Apex Court in the case of Collector of Customs, Calcutta Vs. East India Commercial Company Limited (AIR 1963 Supreme Court 1124). He submitted that the Competent Authority be directed to execute the order of eviction. The learned counsel submitted that the Competent Authority has power to restore possession of the suit flat. He submitted that the Respondent cannot be allowed to take law into his own hand to defeat legal process. 10 The learned counsel appearing for the Respondent submitted that the order of eviction was already executed. Therefore, same order cannot be executed again. He submitted that the Competent 6 wp.4450.10.doc Authority has no jurisdiction to pass an order directing dispossession of the Respondent. He stated that after possession of the suit flat was taken over by the Petitioner, he has sold the same to third party and a writing in that behalf has been already issued by the Petitioner to the Officer In-charge of concerned police station. He submitted that in fact, there was an agreement for sale between the Petitioner and the Respondent in respect of the suit flat and that the Respondent has paid a sum of Rs.3,00,000/- to the Petitioner towards the consideration. He submitted that no interference is called for. 11 I have given careful consideration to the submissions. It is not in dispute that in execution of the order of eviction passed by the Competent Authority, the Superintendent in the office of the Competent Authority took over possession of the suit flat and handed over the same to the Petitioner. In the affidavit-in-reply filed to this petition, the Respondent has not disputed the allegation that the Respondent dispossessed the Petitioner on 30 th June, 2009 and that the Respondent is in possession of the suit flat. It is pertinent to note that against the order of eviction passed by the Competent Authority, the Respondent preferred a statutory revision application under Section 44 of the said Act before the Additional Commissioner. In fact, when the Respondent forcibly dispossessed the Petitioner, the revision application was pending. It appears that on 27 th April, 2009, the said revision application was fixed for hearing and on that date, both the parties filed written submissions 7 wp.4450.10.doc and the case was closed for judgment. In the circumstances, though the judgment of the Additional Commissioner in revision was pronounced on 20 th July, 2009, there is no reference in the said judgment to the dispossession of the Petitioner by the Respondent. It was tried to be argued by the Respondent that the revision application filed by the Respondent was not dismissed on merits, but on the ground that the same has become infructuous. However, perusal of the judgment of the Revisional Authority shows that merits of the revision application have been considered. The learned Additional Commissioner had made reference to both the leave and license agreements and has held that the agreements were conclusive evidence of the facts stated therein. The Additional Commissioner also observed that the defence of the Respondent was that there was an agreement for sale executed in his favour by the Petitioner, but no such document has been produced before the Competent Authority. Moreover, it was observed that the Respondent has not filed any suit for specific performance for enforcing the alleged agreement for sale. Therefore, a finding was recorded that the Respondent has failed to prove his case and he desires to continue in possession of the suit flat without any valid reason. It is true that in the said order, the Revisional Authority had noted the contention of the Respondent that the revision had become infructuous inasmuch as on 18 th December, 2008, the Petitioner was placed in possession of the suit flat by executing order of eviction. Nevertheless, merits of the case made out by the Respondent was considered by the learned Additional 8 wp.4450.10.doc Commissioner and in fact, a finding of fact has been recorded by the Additional Commissioner against the Respondent on merits of the revision application. It is pertinent to note that though the Respondent obtained forcible possession of the suit flat in June, 2009, he did not withdraw the revision application. Thus, there is confirmation of the order of eviction by the Additional Commissioner in a statutory revision application. 12 Thus, doctrine of merger will come into operation. In the case of M/s.Gojer Brothers (Private) Limited Vs. Shri. Ratan Lal Singh ((1974) 2 SCC 453) in paragraph No.11, the Apex Court held that: “11. The juristic justification of the doctrine of merger may be sought in the principle that there can- not be, at one and the same time, more than one op- erative order governing the same subject-matter. Therefore the judgment of an inferior court, if subject- ed to an examination by the superior court, ceases to have existence in the eye of law and is treated as be- ing superseded by the judgment of the superior court. In other words, the judgment of the inferior court los- es its identity by its merger with the judgment of the superior court.” The doctrine of merger was also considered by the Apex Court in the case of Collector of Customs vs East India Commercial Company Limited (AIR 1963 SC 1124).In paragraph 5 of the judgment, it was held thus: “5. It is this principle viz. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the low- er court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of 9 wp.4450.10.doc the Appellate Authority whatsoever its decision — whether of reversal or modification or mere confirmation. This mat- ter has been considered by this Court on a number of occa- sions after the decision in Skaka Venkata Subba Rao case1. In A. Thangal Kunju Musaliar case6 though the point was not directly in issue in that case, the Court had occasion to consider the matter (see p. 1213) and it approved of the decisions of the Pepsu, Nagpur and Allahabad High Courts (referred to above). Then in CIT v. Amritlal-Bhogilal and Company 7 a similar question arose as to the merging of an order of the Income Tax Officer into the order of the Appel- late Assistant Commissioner passed in appeal in connection with the powers of the Commissioner of Income-tax in revi- sion. Though in that case the order of registration by the In- come Tax Officer was held not to have merged in the order of the Assistant Commissioner on appeal in view of the spe- cial provisions of the Income Tax Act, this Court observed as follows in that connection at p. 720: “There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the Appellate Authority is the operative decision in law. If the Appellate Authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely con- firms the decision of the tribunal. As a result of the confir- mation or affirmance of the decision of the tribunal by the Appellate Authority the original decision merges in the ap- pellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.” In the last paragraph, the Apex Court held thus: “We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliar case6 as well as in Amritlal-Bhogilal case7 that the order of the original authority must be held to have merged in the order of the Appellate Authority in a case like the present and it is only the order of the Appellate Authority which is operative af- ter the appeal is disposed of.” 13 In the present case, the doctrine of merger will squarely apply and the order of eviction passed by the Competent Authority has merged with the order in revision. There cannot be any dispute that the Competent Authority can exercise power of executing its own order of eviction. As the order of the Competent Authority has merged with the 10 wp.4450.10.doc order in revision, even the order in revision could have been executed. The learned Single Judge of this Court in the case of Ramkrishna Bajirao Gotmare Vs. Kanhaiyalal Tribhuwanlal Shah ((1990) Mh.L.J. 897) has considered the effect of doctrine of merger in relation to a decree of the Appellate Court. In paragraph No.6 of the said decision, the learned Single Judge observed thus: “6. Thus the conclusion is inevitable that consistent legal position has been that an appellate decree supersedes the original decree on the basis of doctrine of merger, only that superseded decree is enforceable.” 14 The Apex Court in the case of M/s. Gojer Brothers (supra) has held that if the judgment of inferior Court is subjected to an examination by the superior Court, the identity of the judgment of the inferior Court is lost by its merger with the judgment of the superior Court. Therefore, in the present case, what is operating is the judgment of the learned Additional Commissioner confirming the order of eviction. On the date on which the learned Divisional Commissioner confirmed order of eviction, the Respondent was in possession of the suit flat. In view of doctrine of merger, the order of the higher authority can be always executed. The execution will be naturally by the authority of the first instance, which in the present case is the Competent Authority. 15 In the earlier Writ Petition No. 8247 of 2009, this Court granted liberty to the Petitioner to file appropriate proceedings for seeking 11 wp.4450.10.doc possession. It appears from the impugned order dated 5 th March, 2010 that on the basis of the liberty granted by this Court, the Petitioner filed an application for possession before the Competent Authority. The said application was certainly maintainable as the Respondent continued to be in possession of the suit flat. The Competent Authority in the impugned order has expressed a doubt whether possession can be handed over to the Petitioner by executing the same order, which was earlier executed. The Competent Authority has completely ignored that when the subsequent application for execution was made, the earlier order of eviction of the Competent Authority had merged with the order of the Additional Commissioner in the revision. As stated earlier, on the date on which revision application was decided, the Respondent was in possession and therefore, in view of doctrine of merger, the order of Revisional Authority can be executed by the Competent Authority. 16 The Respondent in the affidavit is relying upon the alleged agreement for sale. As observed by the learned Additional Commissioner, the agreement is not placed on record and that even a suit for specific performance of the agreement has not been filed by the Respondent. The entry of the Respondent in the suit flat is on the basis of the leave and license agreement, which is not subsisting. There is an order of eviction passed in favour of the Petitioner, which is operating till today. Therefore, even assuming that the Petitioner has sold the suit flat to a third party, the right of the Petitioner to execute the order is not taken 12 wp.4450.10.doc away. 17 There is another aspect of the matter. The Petitioner brought to the notice of the Competent Authority that during the pendency of the revision application preferred by the Respondent for challenging the order of eviction, the Petitioner was forcibly dispossessed though he was placed in possession on the basis of the order of eviction passed by the Competent Authority. The respondent admittedly did not follow the due process law. He took forcible possession. Power to do justice is inherent in every Tribunal. The Division Bench of this Court in the case of Maharashtra Shikshan Sanstha vs.Education Officer ( [1995]1 Mh.L.J 875) dealt with inherent powers of the School Tribunal established under the Maharashtra Employees of Private School (Condition of Service) Regulations Act, 1977. In paragraph No.14 of the said decision, the Division Bench held thus: “14. We have pointed out hereinbefore that the School Tribunal is conferred with all the necessary powers, procedural as well as substantive in the adjudication of the matter before it under sections 10 and 11 of the Act. When the School Tribunal is conferred with the powers of the Appellate Authority under the Code of Civil Procedure, 1908, for the purposes of admission, hearing and disposal of the appeals before it, and even otherwise also being a quasi-judicial if not a judicial authority it would mean that it has inherent powers to pass appropriate orders in the lis before it ex debito justitiae including the power to issue temporary injunctions in matters not specifically covered by Order 39 of the Civil Procedure Code or by any provision of the Act. See Manoharlal Vs. 13 wp.4450.10.doc Seth Harilal, Air 1962 Sc 527. Also see Ram Bahadur Vs. Devidayal, AIR 1954 Bombay 176.” (emphasis added) 18 Thus, even in case of the Competent Authority, which is certainly a quasi-judicial authority, there is an inherent power vesting in it to pass appropriate order for the purposes of doing justice between the parties. 19 In the circumstances, the Competent Authority had jurisdiction to entertain the subsequent application filed by the Petitioner for enforcing the order of eviction. To that extent, the impugned order dated 5 th March, 2010 will have to be clarified and modified. The Competent Authority shall direct the Superintendent to take over possession of the suit flat and to place the Petitioner in possession thereof. A reasonable time deserves to be granted to the Respondent to surrender the possession of the suit flat. 20 Hence, I pass the following order: i. It is clarified that the Competent Authority is entitled to enforce its order of eviction, which has merged with the order of the learned Additional Commissioner ; 14 wp.4450.10.doc ii. Hence, the Competent Authority shall proceed to pass an order directing its Superintendent to execute the order of eviction, if necessary, by removing the lock on the door of the suit flat. The Superintendent or any other officer nominated by the Competent Authority shall be entitled to take police help. On the basis of requisition made by the Superintendent, the concerned local police station shall render necessary assistance. iii. The action of dispossession shall be taken by the Competent Authority, only if the Respondent fails to vacate the suit flat and handover possession thereof to the Petitioner within a period of two months from today; iv. The impugned order dated 5 th March, 2010 is accordingly modified; v. Rule is accordingly made absolute in above terms; vi. There will be no order as to costs. [ A.S.OKA, J ]