1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7539 OF 2011 Dalco Engineering Pvt.Ltd. .. Petitioner V/s Hindustan Antibiotics Ltd. & Ors. .. Respondents Mr.Ketan Arvind Chothani with Mr.Mayuresh Kulkarni for the petitioner. Ms.Sheeja John with Ms.Jay Savla i/by M/s.M.P.Savla & Co.for Respondent No.1. CORAM: D.D.SINHA & R.G.KETKAR, JJ. Date of Reserving Order : 4th October, 2011. Date of Pronouncing Order: 20th October, 2011 ORDER: (Per R.G.Ketkar, J.) 1. Heard Mr.Ketan Chothani and Mr.Mayuresh Kulkarni, learned counsel appearing for the petitioner and Ms.Sheeja John, learned counsel appearing for Respondent No.1 Rule. Rule is made returnable forthwith and is heard finally. 2. By this petition, the petitioner is challenging the judgment and order dated 05.04.2011 passed by the Estate Officer under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short the “Act”) as also the judgment and order dated 09.08.2011 passed by the learned District Judge-IV Pune in 2 Civil Appeal No.258 of 2011. By these orders, the petitioner is held unauthorised occupant in respect of one acre of land being Plot No.1 out of Revenue Survey No.169A-2 situate at Pimpri- Waghire (for short “the suit premises”) and is ordered to vacate the suit premises alongwith the structures, fixtures, plant & machinery etc., within a period of 30 days from the date of publication of the order. In the event of failure of the petitioner to comply the order within a period specified, the petitioner and all other persons concerned are liable to be evicted from the suit premises alongwith the movable and immovable equipments, installations, if need be by the use of such force as may be necessary. 3. The petitioner is a private limited company incorporated under the Companies Act, 1956. The suit premises is admittedly owned by Respondent No.1 herein. Respondent No.1 is also a public limited company and is fully owned by the Central Government. The suit premises was leased out to the petitioner initially for a period of 10 years commencing from 17.10.1960 to 16.10.1970 under the registered agreement dated 30.03.1965. This lease period was extended by another registered agreement dated 3 30.07.1968 and the lease period was extended upto 16.10.1985. By supplementary un-registered agreement dated 30.07.1988 the lease period was extended upto 16.10.2010. The petitioner has erected structure on the suit premises as per its requirements and according to the permission granted by the 1st Respondent. 4. Since the lease period was to expire on 16.10.2010, by a letter dated 16.08.2010 the petitioner requested the 1st Respondent for extension of lease on the same terms and conditions of the original lease agreement. The 1st Respondent by a letter dated 30.09.2010 informed the petitioner that it did not want to renew the lease and as the lease is expiring on 16.10.2010 called upon the petitioner to remove the structure and deliver the possession. The petitioner gave reply on 11.10.2010 and claimed to be a monthly tenant. The petitioner also refused to vacate the suit premises. The Estate Officer appointed under the Act issued show cause notice to the petitioner on 05.01.2011. The petitioner filed reply. 5. Upon hearing both sides and on the basis of material on record, the Estate Officer held that the petitioner is in unauthorised possession and ordered to hand over possession by passing an 4 order on 05.04.2011. Aggrieved by this decision, the petitioner preferred an appeal under section 9 of the Act before the learned District Judge, which was also dismissed by the impugned judgment and order dated 09.08.2011. It is against these decisions, the petitioner has instituted the present petition. 6. In support of this petition, the learned counsel for the petitioner raised following contentions:- (1) In the letter dated 30.09.2010 the 1st Respondent acknowledged and accepted the petitioner as monthly tenant of the suit premises and therefore, possession of the petitioner from and on 16.10.2010 cannot be termed as unauthorised occupation. (2) The 1st Respondent will have to resort to the provisions of Maharashtra Rent Control Act, 1999 (for short ‘Rent Act’) for evicting the petitioner. In other words his submission is that the 1st Respondent cannot invoke the provisions of the Act. 7. In support of his submissions, he relied upon the Division Bench Judgment of this Court in the case of Arjun Baboo Tukaral V/s.G.V.Javalkar & Ors., 1980 Bom.C.R.863, and the judgment in the case of Shalan Narayan Dappal & Ors.V/s.Board of Trustees of Port of Bombay, 2009(3) Bom.C.R.289. 5 8. On the other hand, learned counsel for the 1st Respondent supported the impugned order. She submitted that what was leased out to the petitioner was the open plot of land. Having regard to the definition of the expression “premises” under section 7(9) of the Rent Act, the open plot of land does not come within the definition of “premises”. She therefore submitted that the 1st Respondent cannot have resort to the provisions of the Rent Act. Since the 1st Respondent is admittedly fully owned by the Central Government, initiation of the proceedings under the provisions of the Act are legal and valid and no fault can be found with the impugned orders. 9. We have considered the rival submissions made by learned counsel appearing for the parties. We have also perused the written submission. It is not in dispute that the 1st Respondent is a public limited company and is fully owned by the Central Government. It is also not in dispute that what was leased out to the petitioner was the open plot of land. Having regard to the definition of the expression “premises” as contained in Section 7(9) of the Rent Act, the open plot does not come within the said definition. If that be so, the Rent Act is not applicable to the suit 6 premises. Having regard to the fact that the 1st Respondent is fully owned by the Central Government, the parties are governed by the provisions of the Act. It therefore cannot be said that the proceedings initiated under the provisions of the Act are not maintainable and the 1st Respondent can evict the petitioner only by invoking the provisions of the Rent Act. We therefore do not find any substance in the contention advanced on behalf of the petitioner that the proceedings under the Act are not maintainable and the 1st Respondent has to invoke the provisions of the Rent Act. 10.Learned counsel for the petitioner invited our attention to the letter dated 30.09.2010 and in particular, clause 4 thereof to contend that the 1st Respondent had accepted the petitioner as a monthly tenant. Clause 4 thereof reads as under:- “(4) Lease granted to you under registered document being 2nd lease document has already expired. Without admitting the validity of lease granted to you for 25 years under the unregistered supplemental Agreement, the same will expire on 16.10.2010. Utmost your occupation is as a monthly Tenant of open plot.” 11.This aspect was considered by the learned District Judge in Paragraphs 13 & 14 of the impugned order. The learned District Judge came to the conclusion that since the supplementary 7 agreement was unregistered, in the absence of registered agreement, the status of the petitioner was of a monthly tenant. The 1st Respondent conveyed to the petitioner that for want of registration of the agreement, its status was of a monthly tenant and the reference to the monthly tenancy in clause 4 was pertaining to the period prior to 16.10.2010. It does not mean that the 1st Respondent accepted the petitioner as a monthly tenant on and from 16.10.2010. We do not find that the learned District Judge has committed any error in reaching the conclusion. We therefore do not find any merit in the submission advanced by the learned counsel for the petitioner. 12.The learned counsel for the petitioner relied upon the Division Bench judgment of this Court in the case of Arjun Tukaral (supra). In that case the petitioner was employee as a gangman in the western railway and was allotted railway quarter. After his retirement from service in December, 1977 he did not vacate the quarter inspite of notice. Respondent No.1, Personal Inspector (Settlement) filed eviction application on behalf of the railway administration in the Court of Metropolitan Magistrate, Bombay Central. The learned Magistrate issued show cause notice to the 8 petitioner for warrant of eviction. The petitioner filed his written statement contending interalia that the said premises are governed by the provisions of the Act and consequently the railway administration has to follow the procedure as laid down therein. Respondent No.1 filed further written reply and contended that the application preferred by the railway administration was under section 138 of the Railways Act which provided for specific procedure for a summary delivery of the railway property. The petitioner cannot choose and insist which remedy the railway administration should avail. The Division Bench held that both the remedies under the Act as well as under the Railways Act are summary remedies. Against the order of Estate Officer the appeal is provided to the District or the Principal Judge, City Civil Court, Greater Bombay and that cannot be the reason to hold that the procedure under section 138 of the Railways Act is violative of Article 14 of the Constitution of India. In our opinion, this judgment does not advance the case of the petitioner. 13.The learned counsel for the petitioner also relied upon the judgment of this Court in the case of Shalan Dappal (supra) to contend that the 1st Respondent cannot invoke the provisions of 9 the Act and has necessarily to institute the suit against the petitioner on one of the available grounds under the Rent Act. In that case, the suit was instituted under section 41 of the Presidency Small Causes Court Act. During the pendency of the suit, the Act was amended from 20.12.1980 and the suit premises therein were included in the definition of public premises under section 2(e)(v) of the Act. It is in that context the petitioner therein contended that the Court of Presidency Small Causes, lost jurisdiction to try the suit and the Act prevails over the Rent Act. The learned Single Judge of this Court held that Section 15 of the Act is not retrospective and the Court of Small Causes had jurisdiction when the suit was instituted and continued to retain the jurisdiction till the decree. 14.We have already indicated that the provisions of the Rent Act are not applicable and the 1st Respondent rightly initiated the proceedings under the provisions of the Act. The judgment in the case of Shalan (supra) does not advance the case of the petitioner. Learned counsel for the petitioner made a feeble attempt to contend that the provisions of the Rent Act shall prevail over the provisions of the Act, as the Rent Act is of 1999 whereas the Act 10 is of 1971. We do not find any merit in this submission. Learned counsel for the petitioner was not in a position to substantiate this contention. 15.Learned counsel for the petitioner finally prayed for two years time to vacate the premises. Having regard to the facts and circumstances of the case, subject to the petitioner filing an usual undertaking in this Court within a period of four weeks from today, we direct that the 1st Respondent shall not evict the petitioner from the premises on or before 31.12.2012. In case the petitioner fails to file usual undertaking within four weeks from today, the 1st Respondent shall be at liberty to execute the orders passed by the Courts below. 16.Subject to the aforesaid direction, petition fails and the same is dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs. (R.G.KETKAR, J.) (D.D.SINHA, J.)