IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO.4992 OF 2008 WRIT PETITION NO.4992 OF 2008 WRIT PETITION NO.4992 OF 2008. 1. Akbarali A. Premji, 2. Karim A. Premji both of Mumbai Indian Inhabitants, residing at Flat No.5, Queens Court, 136, Maharshi Karve Road, Mumbai 400 020 and Petitioner No.1 also residing at 402-B, Express Apartments, Yari Road, Versova, Mumbai 400 061. .. PETITIONERS. PETITIONERS. PETITIONERS. VERSUS VERSUS VERSUS 1. Life Insurance Corporation of India having its office at Western Zonal Office, Yogakshema, West Wing, Jeevan Bima Marg, Mumbai 400 021. 2. Mr R. R. Kini,Estate Officer of Life Insurance Corporation of India, having his office at Western Zonal Office, Yogakshema, West Wing, Jeevan Bima Marg, Mumbai 400 021. ..RESPONDENTS. RESPONDENTS. RESPONDENTS. Mr N. H. Seervai with Mr Percey Gandhy with Mr Shaukat Merchant, Mr Share Ali Karim M/s Uravashi Topas i/b M & M Legal Ventures, for the Petitioners. Mr V. Y. Sanglikar, Advocate for Respondent No.1. CORAM: V.C. DAGA, J. CORAM: V.C. DAGA, J. CORAM: V.C. DAGA, J. DATED: 09TH SEPTEMBER,2008. DATED: 09TH SEPTEMBER,2008. DATED: 09TH SEPTEMBER,2008. ORDER: ORDER: ORDER: ------ ------ ------ 1. Heard the learned counsel for the parties. Perused the petition. 2. This petition is directed against the order dated 19th June, 2008 passed by the Principal Judge of the City Civil Court Bombay in Misc. Appeal No. 3 of 2003 confirming the order of eviction dated 22.11.2002 passed by the Estate Officer, appointed under Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ("the Public Premises Act of 1971" for short). THE FACTUAL SCENARIO: THE FACTUAL SCENARIO: THE FACTUAL SCENARIO: -------------------- -------------------- --------------------- 3. The factual scenario reveal that Petitioner No.1 Mr Akbar Ali is a tenant of the premises, whereas Petitioner No.2, Mr Karim is in the occupation and possession of the said premises being A/296, Flat No.5 situate on the 2nd Floor of the building known as "Queen’s Court", with garage situate on the ground floor at 136, Maharshi Karve Road, Mumbai - 20 ("the said premises") having an approximate area of about ( 3 ) 2400 sq. ft. 4. The litigation has a little chequered history. According to the Petitioners, their father Allibhai Premji Tyerwalla (since deceased), during his life time, had acquired tenancy in respect of the said premises on monthly rent of Rs. 236/- from 1.1.1947 from the original landlords one "M/s Mafatlal Gagalbhai & Co. Pvt. Ltd." (for short "Mafatlal & Co.") though the rent receipts were issued in the name of Petitioner No.1. 5. According to the Petitioners, at the time when the tenancy was contracted, father of the petitioners Mr Allibhai Premji was out of town. Consequently, the rent receipt was issued in the name of eldest son - i.e. Petitioner No.1, who was aged about 24 years at the relevant time, whereas Petitioner No.2 was aged about 9 years. Thus, according to the Petitioners, since their father Late Allibhai Premji was a tenant, the tenancy devolved on all the legal heirs after the death of Allibhai. Petitioner No.1 alone, therefore, cannot be treated as tenant of the said premises. If this be so, none of the grounds for termination of the tenancy and eviction is available to the respondent No.1 Life Insurance Corporation ( "the L.I.C." for ( 4 ) short). 6. Factual scenraio reveals that on 24.9.1997 Respondent No.1-L.I.C., issued notice to the Petitioner No.1 terminating his tenancy. According to the Respondent No.1-L.I.C., the said premises was given to Petitioner No.1 alone as tenant but he had parted with possession of the said premises in favour of the Petitioner No.2 and shifted to some other premises. It is the case of Respondent No.1 that possession of Petitioner No.2 is unauthorised being without their consent. 7. The Respondent No.1- L.I.C. initiated proceeding under Sections 5 and 7 of the Act of 1971. The Estate Officer issued notices under Sections 4 and 7 calling upon them to show cause as to why they should not be evicted from the said premises as prayed by Respondent No.1-L.I.C. The petitioners filed their written statement and challenged the authority of the Estate Officer as well as right of the Respondent No.1 to evict Petitioners from the said premises. 8. In defence, the Petitioners alleged that Late Allibhai Premji during his life time had interacted and entered into the contract of tenancy with M/s ( 5 ) Mafatlal & Co. in respect of the said premises. The petitioners placed reliance on the correspondence exchanged between Late Allibhai and M/s Mafatlal & Co. The petitioners further alleged that the rent in respect of the said premises was paid by Late Allibhai Premji during his lifetime. 9. On 31st December, 1956, Respondent No.1-LIC has purchased the said premises. According to the petitioners, Respondent No.1-LIC did not make any inquiry with Allibhai Premji in respect of his tenancy rights; that Respondent No.1-LIC did not attorn tenancy; that Respondent No.1-LIC did not make any inquiry with Petitioner No. 1- Akbarali, when the subject building was purchased by them. Respondent No.1-LIC did not make inquiry regarding the persons in use and occupation of the said premises. According to the Petitioners, the respondent No.1-LIC stepped into the shoes of M/s Mafatlal & Co. as such respondent No.1-LIC has impliedly accepted the terms of tenancy of the said premises as was subsisting prior to 31st December, 1956. 10. According to the Petitioners, after obtaining said premises on rent by Allibhai Premji, he was blessed with children. In the year 1958 family of ( 6 ) Allibhai Premji was of 18 members. The said premises was found insufficient, hence, Allibhai Premji was compelled to take additional accommodation for use and benefit of his family members. The additional accommodation which was acquired was used mainly by Petitioner No.1-Akbarali. The younger children of Allibhai Premji continued to reside in the said premises. Allibhai Premji continued to pay the rent of the said premises to Respondent No.1- LIC. Respondent No.1-LIC had correspondence with the petitioners. According to the petitioners, the contract of tenancy and relationship which was between Allibhai Premji and M/s Mafatlal & Co. continued even after purchase of the said premises by Respondent No.1 - LIC. At no stage the relationship was revoked, cancelled or varied. 11. According to the petitioners, it was never agreed that terms and conditions mentioned on the reverse of the rent receipts issued by Respondent No.1-LIC will be applicable to the said premises. That with the death of Allibhai Premji, the tenancy rights in respect of said premises devolved on the heirs of Allibhai Premji being the members of the family residing with the tenant at the time of his death. Inspite of these facts, Respondent No.1-LIC ( 7 ) continued to issue rent receipts in the name of Petitioner No.1-Akbarali, which according to the petitioners were contrary to the terms of tenancy. 12. The Respondent No.1-LIC claims to have terminated tenancy of the petitioner No.1 by Advocate’s notice dated 24th October, 1997 on the ground that he was not occupying the said premises and that he had acquired alternate suitable residential premises at Varsova, Mumbai. Respondent No.1-LIC alleged that Petitioner No.2 Karim is in unauthorised occupation of the said premises. The Respondent No.1-LIC initiated eviction proceeding to evict the Petitioner No.1- Akbarali and Petitioner No.2-Karim under the provisions of Public Premises Act, 1971 before the Estate Officer being Case Nos. 704 and 704 of 1998. 13. The Petitioners, on being served with the show cause notice, filed their written statement and tried to defend their possession. The Respondent No.1-LIC raised contention in eviction proceedings that only Petitioner No.1 Akbarali is a tenant of the said premises and not Allibhai Premji (since deceased). 14. The petitioners were granted inspection of ( 8 ) record as sought by them. The Estate Officer permitted parties to lead documentary as well as oral evidence. Both parties were permitted to cross-examine each other and after hearing the parties to the proceedings the Estate Officer was pleased to direct eviction of the Petitioners vide its order dated 22.11.2002. 15. Being aggrieved by the aforesaid order, the Appellate Jurisdiction of the Bombay City Civil Court under Section 9 of the Act was invoked. The appeal was registered as Misc. Appeal No. 3 of 2003 which was heard by the Principal Judge, Bombay City Civil Court, who by his order dated 19.6.2008 was pleased to confirm the order of the Estate Officer by dismissing the Appeal by the impugned order. 16. Being aggrieved by the aforesaid order dated 19.6.2008 the Petitioners have invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India. SUBMISSIONS: SUBMISSIONS: SUBMISSIONS: ----------- ----------- ----------- 17. The learned counsel for the Petitioner reiterated the contentions which were advanced before ( 9 ) the Estate Officer as well as the lower Appellate Court. It need no reproduction, since the same is sketched hereinabove while drawing factual scenario. 18. It is further urged that action of Respondent No.1-LIC, who is the "State" within the meaning of Article 12 of the Constitution of India, is arbitrary and in violation of principles of natural justice. It is further urged that every activity of a public authority, especially, in the background of immunity from the rigours of the Rent Act,[the action of the public authority] must be based on informed reasons and guided by the public interest. If a governmental action has been in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional. In support of this submission reliance is placed on the judgment of the Supreme Court in the case of M/s Dwarkadas Marfatia and Sons M/s Dwarkadas Marfatia and Sons M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay A I R 1989 Board of Trustees of the Port of Bombay A I R 1989 Board of Trustees of the Port of Bombay A I R 1989 S.C. 1642. S.C. 1642. S.C. 1642. Reliance is also placed on the recent judgment of the Apex Court in the case of Jamshed Jamshed Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai Hormusji Wadia v. Board of Trustees, Port of Mumbai Hormusji Wadia v. Board of Trustees, Port of Mumbai AIR 2004 S C 1815, AIR 2004 S C 1815, AIR 2004 S C 1815, wherein the Judgment of Dwarkadas Dwarkadas Dwarkadas Marfatia & Sons (cited supra) Marfatia & Sons (cited supra) Marfatia & Sons (cited supra) is relied upon. Very same judgment is again confirmed by the Apex Court in the case of New India Assurance Company Ltd v. Nusli New India Assurance Company Ltd v. Nusli New India Assurance Company Ltd v. Nusli ( 10 ) Neville Wadia and Another (2008) 3 S C C 279 Neville Wadia and Another (2008) 3 S C C 279 Neville Wadia and Another (2008) 3 S C C 279. 19. It is further urged that the Estate Officer must be satisfied that the public premises are in unauthorised occupation and that the person in unauthorized occupation should be evicted and that he must record his confirmed opinion on both counts. In support of this submission reliance is placed on the Division Bench of this Court in the case of Minoo Minoo Minoo Framroze Balsara v. The Union of India and others AIR Framroze Balsara v. The Union of India and others AIR Framroze Balsara v. The Union of India and others AIR 1992 Bombay 375 1992 Bombay 375 1992 Bombay 375. 20. It is further urged that when the landlord initiates proceedings for eviction the burden is always on the landlord to prove its case. In support of this submission reliance is placed on the Apex Court judgment of New India Assurance Company Ltd v. Nusli New India Assurance Company Ltd v. Nusli New India Assurance Company Ltd v. Nusli Neville Wadia and another (2008) 3 S C C 279 Neville Wadia and another (2008) 3 S C C 279 Neville Wadia and another (2008) 3 S C C 279. 21. It is, thus, urged that the petition needs consideration since the impugned orders are unsustainable in the eye of law. 22. In reply, learned counsel for Respondent No.1-LIC submits that for the termination of tenancy no reasons are required to be given since the Rent Act ( 11 ) is not applicable. He further submits that notice of termination cannot be invalidated on the ground that it does not specify grounds for eviction. Reliance is placed on the judgment of this Court in the case of Board of Trustees v. Corn Products 1995(2) Board of Trustees v. Corn Products 1995(2) Board of Trustees v. Corn Products 1995(2) Mh.L.J.449 Mh.L.J.449 Mh.L.J.449. 23. The learned counsel for Respondent No.1-LIC submits that inspite of this legal position, respondent No.1-LIC has given reasons for terminating tenancy and justified same by leading positive evidence. He, thus, submits that the action of Respondent No.1 is perfectly legal and valid. 24. It is further submitted that in the case of New India Assurance Co. Ltd v. Nusli Neville Wadia New India Assurance Co. Ltd v. Nusli Neville Wadia New India Assurance Co. Ltd v. Nusli Neville Wadia (2008) 3 S C C 279, (2008) 3 S C C 279, (2008) 3 S C C 279, the Apex Court ruled that the guide-lines are not statutory. He further submits that action of Respondent No.1-LIC is fair and proper and the same is taken in the public interest to protect public property from clutches of the unauthorised occupants. He further submits that one of the sons of Premji, Mr Akbarali Premji alongwith three lady members of the family, had filed a suit being T.D. Suit No. 260 of 2003 against Respondent No.1-LIC, Mafatlal & Co., joining as the present ( 12 ) petitioners as the defendants to seek declaration that Allibhai Premji Tyrewalla (now deceased) was the tenant in respect of the said premises and prayed for further declaration that after the death of Allibhai Premji, all his heirs have become statutory tenants of the said premises. The said suit was contested on merits. The issues were framed by the Civil Court as to : (1) Whether the suit is maintainable and (2) Whether the plaintiffs are the lawful tenants in respect of the suit premises? 25. The Civil Court after full trial on merits, after appreciating the evidence, documentary as well as oral brought on record, was pleased to hold that the suit for declaration was maintainable and that the Plaintiffs in the suit failed to prove that they are tenants of the suit premises. In other words, the tenancy in favour of Petitioner No.1 alone was recorded. 26. According to the learned counsel for Respondent No.1-LIC, so long as the said judgment is not set aside, it will continue to hold the field. So long as it is holding the field, the said judgment will operate as res judicata between the parties. As such, the petitioners herein are estopped from ( 13 ) canvassing any contention contrary to the findings recorded in the said judgment. 27. The learned counsel for the respondent No.1, during the course of his submissions, placed heavy reliance on the admissions of the Petitioner No.1, wherein he has admitted that he had parted with possession of the said premises and shifted from the said premises long back and that he is not in the occupation of the said premises. He, thus, submits in exercise of powers under Article 227 of the Constitution of India, this Court should not interfere with concurrent findings of facts recorded by the authorities below based on appreciation of legal evidence and various admissions. He submits by no stretch of imagination the impugned judgment can be said to be perverse. He, thus, prayed for dismissal of the petition in limini. CONSIDERATION: CONSIDERATION: CONSIDERATION: ------------- ------------- ------------- 28. Having heard the learned counsel for the Petitioners, at length, in order to appreciate the submissions made, one has to turn to Section 2 (g) of the Act which runs as under: ( 14 ) "Unauthorised occupation" in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of granting any other mode of transfer) under which he was showed to occupy the premises has expired or has been terminated for any reason whatsoever." 29. The aforesaid section shows that the possession could be unauthorised if the authority under which the person was allowed to occupy the premises has been terminated for any reason whatsoever. Under the Act, the reasons for termination of tenancy are not contemplated as such the petitioners have relied on guide-lines issued in this regard by the Central Government. I have gone through the guide-lines. The purpose behind the guide-lines appears to be to see that the decision of the authority is not capricious, arbitrary. There should be fairness and reasonableness in the decision to terminate tenancy in view of Articles 12 and 14 of the Constitution. It is observed in the guide-lines that for resuming possession, the authority has a right similar to that of private landlords under the Rent Control Act in dealing with genuine legal tenants. It is also observed in the guide-lines that ( 15 ) only on the basis of the notice of termination, the person in occupation should not be treated as unauthorised occupant. 30. There is one more case in which this Court has made similar observations which is being referred to a different context hereinafter. On the same point, Hon’ble Apex Court has made some observations at para 23 in the case reported as (2008) 3 S.C.C. 279 (New (2008) 3 S.C.C. 279 (New (2008) 3 S.C.C. 279 (New India Assurance Company Ltd Vs. Nusli Nevelie Wadia & India Assurance Company Ltd Vs. Nusli Nevelie Wadia & India Assurance Company Ltd Vs. Nusli Nevelie Wadia & Anr) Anr) Anr) which are as under: "Issuance of such guide-lines, however, is not being controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the tenant". (Emphasis supplied) (Emphasis supplied) (Emphasis supplied) 31. As there are no grounds specifically mentioned in the Act for termination of tenancy, it can be said that it is advisable for the authority like LIC to take a hint from the guide-lines. On the basis of the guide-lines, it can be said that the grounds given in Rent Control Act can be used by the authority for taking action like termination of tenancy. It cannot be disputed that the purpose behind the Act and Rent ( 16 ) Legislation are little bit different. To come out of the rigours of rent legislation, additional powers are given to the authority under the Act. This is again clear from Section 15 of the Act, where under that civil courts are prevented from entertaining such matters. In the Act, summary procedure is provided for enquiry and a separate authority is created for making such enquiry. Further, in the case reported as (2006) 6 SCC 25 (Crawford Bayley & Co & Ors Vs. Union (2006) 6 SCC 25 (Crawford Bayley & Co & Ors Vs. Union (2006) 6 SCC 25 (Crawford Bayley & Co & Ors Vs. Union of India & Ors.) of India & Ors.) of India & Ors.), it is observed by the Apex Court that the provisions of the Act would prevail over the Rent Control Act. In Writ Petition No. 1854 of 2002 between M/s. H. R. Gandhi & Ors. Vs. The Oriental M/s. H. R. Gandhi & Ors. Vs. The Oriental M/s. H. R. Gandhi & Ors. Vs. The Oriental Insurance Co. Insurance Co. Insurance Co. decided on 10-1-2005 the Division Bench of this Court has relied on the said Supreme Court judgment and it is observed that the provisions of Maharashtra Rent Control Act cannot prevail over the provisions of the Act. In the reported case 2006 (3) 2006 (3) 2006 (3) Mh.L.J. 713 (Nusli Neville Wadia vs. New India Mh.L.J. 713 (Nusli Neville Wadia vs. New India Mh.L.J. 713 (Nusli Neville Wadia vs. New India Assurance Co. Ltd & Anr) Assurance Co. Ltd & Anr) Assurance Co. Ltd & Anr) this Court has observed that the principles of Rent Act would apply and aforesaid guide-lines would bind the authority if the case is against a genuine and lawful tenant. This issue is also considered by the Hon’ble Apex Court in the case cited supra (New India Assurance Company Ltd vs. (New India Assurance Company Ltd vs. (New India Assurance Company Ltd vs. Nusli Neville wadia & Anr) Nusli Neville wadia & Anr) Nusli Neville wadia & Anr). As on this issue, the ( 17 ) case of "Crawford Bayley & Co. & Ors Vs. Union of "Crawford Bayley & Co. & Ors Vs. Union of "Crawford Bayley & Co. & Ors Vs. Union of India & Ors." India & Ors." India & Ors." is squarely applicable. This Court is bound by the decisions delivered by the Hon’ble Apex Court referred to herein above. 32. I hold that the observations made by this Court with regard to the application of principles of Rent Control Legislation cannot be used in strict sense in favour of the Petitioners. However, it must be added that in view of the discussion already made with regard to the guide-lines and applicability of Articles 12 and 14 of the Constitution of India, it is necessary for the authority to make out at least some ground for eviction. Strict interpretation of various terms made under the Rent legislation cannot be used, though the grounds can be used by the authority for eviction purposes. The grounds will have to be established by the authority terminating tenancy of a tenant. Under the Rent legislation, eviction can be sought on the grounds like subletting, non-user and having secured alternate accommodation by the tenant etc. In other words, in strict sense, the grounds available under the Rent Act for terminating tenancy are also the grounds available in the Act for terminating tenancy and eviction of the tenant. It would be sufficient for the authority to prove that ( 18 ) the original tenant has committed an act not permitted by contract of tenancy. 33. With the aforesaid understanding and in backdrop of Section 2 (g) of the Act, let me turn to the order of the lower Appellate Court to find out as to whether the ground for termination of tenancy is made out by the Respondent-L.I.C. 34. The lower appellate Court after having considered the evidence recorded findings reading as under: "24.Witness Nachane has given evidence on the inspection of the premises done by him and the report prepared by him. He has given evidence that Appellant No.1, recorded tenant was residing at different place and the wife of Appellant No.2 gave the address of Appellant No.1. His evidence shows that Appellant No.2 was occupying the premises when the inspection was done. Cross-examination shows that it revealed during the enquiry that Appellant No.1 was not residing in the premises at all. 25. Evidence of Karim Allibhai Premji, Appellant No.2 shows that Appellant No.1 is eldest issue of Allibhai Premji and when they started living in the premises, Appellant No.1 was married and he had two children at that time. Though he has tried to say that he was living from the age of 9 years, the fact remains that Appellant No.1 was married and he was having his own family. Karim has admitted in cross-examination that the flat was taken by his brother Akbarali. He has given clear-cut admission that Akbarali is authorised tenant. He has tried to say that ( 19 ) in the year 1958 his father