Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 5148 of 1993 1. Pradeep Babubhai Chinai, 2. Ashok Babubhai Chinai, both of Bombay Indian- Inhabitants, being heirs and legal representatives of the deceased Babubhai M. Chinai residing at St. Jame’s Court, Marine Drive, Bombay 400 020 ...Petitioners V/s. 1. Sindhu Resettlement Corporation Limited, a company incorporated under the Indian Companies Act, 1913 and having its registered office at PNB House, Sir Phirozshah Mehta Road, Bombay 400 001. 2. Mr. R.R. Gandhi, Additional Chief Judge of the Small Causes Court, Bombay. 3. Mr. U.R. Patel, Additional Chief Judge of the Small Causes Court, Bombay. ...Respondents Mr. Dinyar Madon, Sr. Counsel i/b. M/s. Malvi Ranchoddas & Co. for the petitioners. Mr. U.J.Makhija, Sr.Counsel i/b. Amin Kherada, Advocate for respondent no.1. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 12TH JANUARY, 2009 : 12TH JANUARY, 2009 : 12TH JANUARY, 2009 JUDGEMENT JUDGEMENT JUDGEMENT . This Writ Petition takes exception to the Judgement and order dated 21st June, 1993 passed by the Appellate Bench of the Small Causes Court at Bombay in Appeal No. 377/1992. The Appellate Bench of the Small Causes Court 2 in turn confirmed the view taken by the Trial Court vide Judgement and Order dated 24th November, 1992 below Interim Notice No. 369/1992 holding that the Court had no jurisdiction to try and entertain the subject suit in view of the fact that the suit premises are governed by the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as P.P.Act). 2. The relevant facts to examine the question regarding jurisdiction of the Court are as follows. The Punjab National Bank, a Public Corporation, is the owner of the building in which the suit premises are situated on the second floor of the building known as PNB House. The first Respondent is a tenant of the said Bank in respect of the premises on the second floor of PNB House. Out of the said premises in occupation of the first Respondent as tenant, portion thereof, admeasuring about 800 sq. feet, was allegedly let out to the predecessor of the Petitioners (one Babubhai M. Chinai) as sub-tenant thereof, sometime in 1966. It is the case of the Petitioners-Plaintiffs that the said arrangement was arrived at after taking approval of the Bank (the owners). The said Babubhai died on 4th July, 1975 leaving a Will wherein he appointed his widow Ashrumati B. Chinai and his sons- the Petitioners, as Executors thereof. It is stated that the said three persons were 3 also the heirs/legal representatives of Babubhai. It is the case of the Petitioners-Plalintiffs that after the death of Babubhai, first Respondent was pressurising the said Ashrumati and the Petitioners to vacate the suit premises and also stopped accepting rent. In the circumstances, said Ashrumati and the Petitioners filed a Declaratory Suit being RAE Declatory Suit No. 5453/1975 for the following reliefs. "(a) That it be declared that the Plaintiffs are the lawful sub-tenants or in any event protected Licensees in respect of the premises admeasuring 300 sq.ft.on the 2nd floor of PNB House, formerly known as Karimji House, situated at Sir Phirozeshah Mehta Road, Bombay Land more particularly shown in Pink wash and the sketch plan Ex.B hereto annexed and are fully protected under the provisions of the Bombay Act, 57 of 1947 ; (b) that the Defendants, their servants and/or agents be permanently restrained by an order and injunction of this Hon’ble Court from changing the common lock on the main gate leading to the respective premises of the Plaintiffs and the Defendants and/or from barring the entry of the Plaintiffs, their servants and agents into the said premises of the Plaintiffs and/or from trespassing, encroaching or entering upon the said premises described in prayer (a) above or any part or portion thereof or bringing any third person on the said premises or any part or portion thereof or from doing any act, deed or thing so as to disturb or interfere in any manner whatsoever with the quiet and peaceful possession and enjoyment of the said premises described in prayer (a) above by the Plaintiffs as lawful subtenants or protected licensees of the said premises described in prayer (a) above ; (c) that pending the hearing and final disposal of the above suit, the Defendants, their servants and/or agents be restrained by an order and injunction of this Hon’ble Court from changing the common lock on the main gate leading to the 4 respective premises of the Plaintiffs and the Defendants and/or from barring the entry of the Plaintiffs, their servants and agents into the said premises of the Plaintiffs and/or from trespassing, encroaching or entering upon the said premises described in prayer (a) above or any part or portion thereof or bringing any third person on the said premises or any part or portion thereof or from doing any act, deed or thing so as to disturb or interfere in any manner whatsoever with the quiet and peaceful possession and enjoyment of the said premises by the Plaintiffs as the lawful subtenants or protected licensees of the said premises described in prayer (a) above ; (d) for interim and ad-interim reliefs in terms of prayer (c) above ; (e) for such other and further reliefs as the nature and circumstances of the case may require ; (f) for costs of the suit." 3. During the pendency of the said Suit, the Defendants-Respondent No.1 took out Interim Notice no. 3690 of 1992 asserting that the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as Bombay Rent Act) have no application in relation to the suit premises. In that, the Defendants were the tenants of Punjab National Bank Ltd. in respect of larger premises of which the suit premises constitute a portion thereof. The said Bank is a "statutory authority" as defined by Section 2(fa)(ii) of the P.P.Act and that the suit premises qualify the definition of Public Premises as defined in Section 2(e) 2(i) or 2(ii) of the P.P. Act. According to the Defendants, therefore, the provisions of Public Premises Act were applicable to the suit premises for which 5 reason the P.P.Act would override the provisions of Rent Control Legislation which has no application thereto. In substance, it was asserted that the Plaintiffs were not entitled to invoke the protection of the Bombay Rent Act. The defendants by the said Interim Notice prayed for the following reliefs. "(a) That this Hon’ble Court may be pleased to frame Preliminary Issues regarding the Jurisdiction of this Hon’ble Court to try and entertain the aforesaid suit as to whether the provisions of the Bombay Rent Act apply to the suit premises and consequently whether this Hon’ble Court would have jurisdiction to try and entertain the aforesaid suit and/or whether the aforesaid suit is maintainable in view of the fact that the suit premises fall within the preview of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. (b) That this Hon’ble Court may be pleased to decide the Issues as per prayer (a) above at the inception as Preliminary Issues. (c) That after hearing the preliminary Issues this Hon’ble Court may be pleased to dismiss the aforesaid suit on the ground of lack of Jurisdiction and/or non maintainability of the suit under the Bombay Rent Act. (d) For such further and other reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the case. (e) Costs of this Application. (f) That this Notice may be served upon the Advocate for the Plaintiff Shri.G.K.Chandan having his office at Chaturbhuj Jivandas House, 1st Floor, Near Flyover, 285, Princess Street, Bombay 400 002." 4. The said application was contested by the plaintiffs. While considering the rival stand, the 6 Trial Court Judge mainly framed three issues for consideration. Firstly, whether the suit premises were governed by the provisions of P.P. Act. Secondly, whether the premises were not governed by the provisions of Bombay Rent Act and the same has no application thereto and thirdly whether the application taken out by the Defendants at this stage was maintainable. The Trial Court answered all the three issues against the Plaintiffs and in favour of Defendants. Consistent with that opinion, the application preferred by the Defendants came to be allowed and the suit was dismissed on the ground of lack of jurisdiction of the Court for the reasons recorded in the Judgement and Order dated 24th November, 1992. 5. The Plaintiffs carried the matter in appeal before the Appellate Bench of the Small Causes Court by way of Appeal No. 377/1992. The Appellate Bench of the Small Causes Court was pleased to uphold the opinion of the Trial Court Judge and dismissed the appeal preferred by the Plaintiffs. 6. Against the above said decision, present Writ Petition has been filed. Besides questioning the correctness of the view taken by the two Courts below the petitioners-plaintiffs had challenged the constitutional validity of the provisions of the P.P.Act 7 being ultravires Article 14 and 19(1)(g) of the Constitution of India. In so far as the question regarding constitutional validity of P.P. Act is concerned, the Division Bench has answered the same vide oral order dated 30-8-1994 against the Petitioners following its earlier decision reported in AIR 1992 AIR 1992 AIR 1992 Bombay Bombay Bombay 375 375 375 in the case of Minoo Framroze Balsara v/s. Minoo Framroze Balsara v/s. Minoo Framroze Balsara v/s. the the the Union of India & ors. Union of India & ors. Union of India & ors. By the same order the Division Bench referred the matter back to the Single Judge to consider the same on merits regarding the correctness of the two decisions challenged in this writ petition as is required by the High Court Appellate Side Rules. Accordingly, the matter proceeded for arguments before me. 7. In so far as the question whether the premises owned by Punjab National Bank are governed by the provisions of the P.P. Act is concerned, there is direct judgement of the Constitution Bench of the Apex Court where Punjab National Bank was respondent, in the case of Ashoka Marketing Ltd. & ors. v/s. Punjab Ashoka Marketing Ltd. & ors. v/s. Punjab Ashoka Marketing Ltd. & ors. v/s. Punjab National National National Bank Bank Bank reported in AIR 1991 SC 855. reported in AIR 1991 SC 855. reported in AIR 1991 SC 855. On analysing the relevant aspects, the Constitution Bench of the Apex Court has held that the Nationalised Bank is a Corporation established under the Central Act and it is owned and controlled by the Central Government. It is further held that the premises belonging to nationalised 8 banks are public premises within the ambit of Section 2(e)(2)(ii) of the P.P. Act. This decision is also an authority on the second issue that would arise for consideration to which reference will be made a little later. In view of this decision, it is not open to argue that the suit premises which is portion of the premises let out to the Defendants by the Punjab National Bank is not covered by the sweep of definition of "Public Premises" in the P.P. Act. 8. However, the moot question is; notwithstanding the suit premises are public premises within the meaning of the Public Premises Act, whether the plaintiffs are still entitled to claim protection under the provisions of the Bombay Rent Act? 9. The Petitioners/Plaintiffs are not in a position to dispute the fact that Punjab National Bank is a Corporation covered by the provisions of the P.P. Act and that the premises belonging to it would be public premises for the purpose of the said Act. It is indisputable that the provisions of the P.P.Act came into force with effect from 16th September, 1958, except Sections 11, 19 and 20, which were to come into force at once on 23rd August, 1971. The Scheme of provisions of the P.P. Act has been analysed in two different decisions of the Constitution Bench of the Apex Court. 9 The first decision is in the case of Ashoka Marketing Ashoka Marketing Ashoka Marketing Ltd. Ltd. Ltd. (supra) (supra) (supra) and recent decision of another Constitution Bench in the case of Kaisar-I-Hind Pvt. Kaisar-I-Hind Pvt. Kaisar-I-Hind Pvt. Ltd. Ltd. Ltd. & anr. v/s. National Textile Corporation & anr. v/s. National Textile Corporation & anr. v/s. National Textile Corporation (Maharashtra (Maharashtra (Maharashtra North) Ltd. & ors. reported in (2002) 8 North) Ltd. & ors. reported in (2002) 8 North) Ltd. & ors. reported in (2002) 8 SCC SCC SCC 182. 182. 182. Both these decisions, apart from dealing with the question of constitutional validity of the P.P. Act have also answered the contention that once the provisions of the P.P. Act become applicable to any premises, the provisions of the Rent Control Legislation will be of no avail. It is held that the P.P. Act deals with Government property as well as property belonging to other legal entities mentioned in clauses (2) & (3) of Section 2(e) of the P.P. Act. 10. The Apex Court in paragraph 55 of its Judgement in Ashoka Ashoka Ashoka Marketing Ltd. ’s case (supra) Marketing Ltd. ’s case (supra) Marketing Ltd. ’s case (supra) has noted that the Rent Control Law can be said to be a special statute regulating the relationship of landlord and tenant. But, the P.P. Act makes provision for speedy machinery to secure eviction of unauthorised occupants from public premises. It went on to hold that the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from the public premises and being a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law 10 cannot be invoked; and in accordance with the principle that the later law abrogates earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. In paragraph 61 of the same Judgement, the Court went on to restate the established legal principle that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. The Court then went on to consider the objects and reasons for the enactment of the Rent Act and found that the same is to make provisions for expeditious adjudication of the dispute between landlords and tenants, determination of standard rent payable by tenants and to give protection against eviction of tenants. The premises belonging to Government are excluded from the ambit of the Rent Control Act; which means that the Rent Act has been enacted primarily to regulate the private relationship between landlords and tenants with a view to confer certain benefits on the tenants and at the sametime to balance the interest of landlords by providing for expeditious adjudication of the proceedings between landlords and tenants. While dealing with the objects and reasons for introducing the Public Premises Act, the Court noted that it has been enacted to deal with the 11 mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. It further held that in order to secure this object, the said Act prescribes the time period for various steps which are required to be taken for securing eviction of persons in unauthorised occupation. The object underlying the P.P. Act is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corporations owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises. After analysing the objectives of the two enactments, it went on to conclude that the effect of giving overriding effect to the provisions of the P.P. Act over the Rent Control Act, would be that buildings belonging to Companies, Corporations and autonomous bodies referred to in Section 2(e) of the Public Premises Act are excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. It went on to observe in paragraph 64 of the same Judgement that the reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that, the Government while dealing with the citizens in respect of property belonging to it would not act for 12 its own purpose as a private landlord but would act in public interest. It is further observed that what can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the P.P. Act. The Apex Court unambiguously held that keeping in view the object and purpose underlying both the enactments, namely, the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act. 11. If there was any doubt, the question is once again answered in the recent decision of the Constitution Bench in Kaisar-I-Hind case (supra). Kaisar-I-Hind case (supra). Kaisar-I-Hind case (supra). Even in this decision the question regarding the purport of provisions of the P.P. Act has been addressed. The specific question as to the effect of Article 254(1) of the Constitution of India on the Bomaby Rent Act after enactment of the P.P. Act has been adverted to in paragraph 38 of the Judgement. In para-40, the Court has observed that once the P.P. Act is enacted then the Bombay Rent Act would not prevail qua the repugnancy between it and the P.P. Act. To the extent of repugnancy, the State law would be void under Article 254(1) of the Constitution and the law made by the 13 Parliament would prevail. It went on to observe that the date of coming into force of the P.P. Act, the Bombay Rent Act qua the properties of the Government and Government Companies "would be inoperative". It has also noted the legal position that the language of Article 254(1) is unambiguous. On that reasoning, it is held that once the P.P. Act came into force, the existing Bombay Rent Act would be void so far as it is repugnant to law made by Parliament. Justice Shah speaking for the majority view summed up the position in paragraph 65 & 66 as follows: "65. The result of the foregoing discussion is : 1. It cannot be held that summary speedier procedure prescribed under the PP Eviction Act for evicting the tenants, sub-tenants or unauthorised occupants, it is reasonable and in conformity with the principles of natural justice, would abridge the rights conferred under the Constitution. 2.(a) Article 254(2) contemplates "reservation for consideration of the President" and also "Assent". Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnancy between the earlier law made by Parliament and the contemplated State legislation and the reasons for having such law despite the enactment by Parliament. (b) The word "assent" used in clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State. (c) In case where it is not indicated that "assent" is qua a particular law made by Parliament, then it is open to the Court to call for the proposals made by the State for the consideration of the President before obtaining assent. 14 3. Extending the duration of a temporary enactment does not amount to enactment of a new law. However such extension may require assent of the President in case of repugnancy. 66. In this view of the matter, in the present case there is no question of giving supremacy to the Bombay Rent Act qua the law made by Parliament." 12. The Learned Counsel for the petitioners, however, contends that, the fact that the suit premises is part of the premises governed by the provisions of the P.P. Act per se does not make the provisions of the Bombay Rent Act inapplicable thereto. According to petitioners, the provisions of the Bombay Rent Act would be inapplicable only if expressly exempted under Section 4 of the Bombay Rent Act. Sans exemption, the provisions of the Bombay Rent Act would apply to premises defined in Section 5(8) read with Section 6 of the Rent Act. Indeed, Counsel for the Petitioners had also relied on the circumstance that recognising this position the recent Maharashtra Rent Control Act, 1999 has made an express provision to exempt the premises from the application of the Rent Legislation which are belonging to the Banks. It is argued that the present suit is governed by the provisions of the Old Rent Act which does not expressly exempt the application of the Bombay Rent Act to premises belonging to Banks-for which reason protection available under the provisions of the Bombay Rent Act would continue to apply in relation to 15 the suit premises. It was argued that the Bombay Rent Act, on the other hand, exempts only premises belonging to "Government" or "Local Authority". The Punjab National Bank was neither Government nor Local authority as such. That means the State Legislation had never intended to exempt the application of provisions of the Bombay Rent Act in relation to premises belonging to the Banks. It was then argued that acceptance of argument of Respondent-Defendant that provisions of the P.P. Act will prevail-for which reason the Bombay Rent Act has no application-would result in rewriting of Section 4 of the Bombay Rent Act. For, Section 4 of the Bombay Rent Act will have to be read as the Act shall not apply to "any public premises" covered by the provisions of the P.P. Act and not limited to premises belonging to Government or a Local Authority. It was then contended that the sweep of bar of provisions of Public Premises Act is limited to matters referred to in Section 15 of the P.P. Act. That would not cover a suit for declaration by a sub-tenant against the tenant of the Bank. Whereas, the dispute between the sub-tenant and the tenant was a matter regulated by the provisions of Rent Control Legislation and adjudication of that dispute is not expressly barred by Section 15 of the P.P. Act. It was contended that it is well established position that exclusion of jurisdiction of Court may not be readily accepted. In absence of express provision of 16 exclusion of jurisdiction of Rent Court by the Central Enactment (P.P. Act), coupled with the fact that the dispute between the tenant and the sub-tenant was in respect of the "relationship of landlord and tenant" between them interse, the same was completely outside the scope of provisions of the P.P. Act. Therefore, it ought to proceed as per the regime of the Rent Act before the Rent Court to effectuate the rights and liabilities arising from and under the provisions of the Bombay Rent Act. 13. The above arguments canvassed on behalf of the Petitioners will have to be stated to be rejected. For, by now it is authoritatively held by the Apex Court that after coming into force of the P.P. Act, the provisions of the Bombay Rent Act qua the properties of the Government and Government Companies would be inoperative. Indeed, the objective and purpose of the P.P. Act, is in relation to the "public premises". Whereas,