1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 361 OF 2010 Karim A. Premji, of Mumbai Indian Inhabitant, residing at Flat No. 5, Queens Court, 136, Maharshi Karve Road, Mumbai 400 020 ... Petitioner Versus Life Insurance Corporation of India, through its General Manager, Western Zonal Office, Yogakshema, West Wing, Jeevan Bima Marg, Mumbai 400 020 ... Respondents Mr. N.H. Seervai,Sr. Adovcate with Mr. Naresh Chheda and Mr. Siby Urmise i/by M/s. N.M. Legal Venture for Petitioner. Mr. Firoz Bharucha i/by Raymond V. Samuel for R. No. 1. CORAM : FERDINO I. REBELLO & A.A. SAYED, JJ. DATED : MAY 04, 2010 ORAL JUDGMENT (Per Ferdino I. Rebello,J.): Petitioner was earlier residing in premises owned by the Respondent. Proceedings were initiated under the Public Premises Eviction Act. An order was passed for eviction of the Petitioner. That order was challenged by the Petitioner and ultimately before the Supreme Court by S.L.P. That S.L.P. was dismissed with certain directions. Petitioner in terms of that order has vacated the premises. 2 2. The present petition was presented on 11.2.2010. In this petition, it is the contention of the Petitioners that Respondents have acted arbitrarily and in violation of Article 14 of the Constitution of India. It is the contention of the Petitioners that in the very same building, where the petitioner was earlier residing, there was another tenement being Tenement No. 9. The inmates of the said premises were unauthorized occupants whose unauthorized occupation was regularized in January, 2003 on certain terms and conditions set out therein. Petitioner came to know of the same some time in November, 2009. 3. According to the Petitioner, Petitioner thereafter applied by his application on December, 07, 2009 to also regularize his occupation of Flat No. 5 on the second floor. The Respondent Corporation by communication of December, 11, 2009 informed the Petitioner that it was not possible to accede to his request and that the Petitioner should hand over vacant possession as per order dated 16.2.2009 of the Supreme Court at the earliest and in any case before 15.2.2010 as stipulated. The Petitioner aggrieved by the said communication has filed the present petition invoking Article 14 of the Constitution of India. 4. It is the case of the petitioners that respondents herein are a Public Authority and could not have acted arbitrarily in dealing with the same 3 class of persons who were occupying the premises unauthorizedly. The action of the Respondent Corporation therefore, on the one hand in regularizing unauthorized occupation in the same building and denying the benefit to another, clearly demonstrates arbitrariness on their part. A reply has been filed on behalf of Respondent Corporation. It is the case of the Respondent that the order of Estate Officer holding that the Petitioner was unauthorized occupant has become final. The Petitioner in fact pursuant to the undertaking as given to the Supreme Court has vacated and handed over the premises. Dealing with the issue of regularizing the occupancy of Mr. Shetty, it is set out that the Respondents had never initiated settlement talks with any occupants, but would consider the application for regularization if the same is received by it. The tenement would be regularized only, if the application is received at the very initial stage of the dispute or before the eviction notice was served upon the unauthorized tenement. This was also done keeping in mind the cost of litigation and the lengthy judicial process to which respondent would have to participate until finally unauthorized occupant could be evicted. It is next pointed out that this was the position in respect of the applications for regularization of tenements received prior to year 2004. From the year 2003, apart from standard life policy, the respondent Corporation has introduced a wide spectrum of services. On account of this, 4 many of its officers or Section Managers/Managers as also Divisional Managers and others shifted base to Mumbai. In terms of the policy those who do not have their own house have to be provided housing. In view of that in the year 2004 on account of severe shortage of accommodation, respondents stopped regularizing tenements in all the buildings where the flats are required to house its officials, even if application had been received by it at initial stage. This was done to accommodate its own employees. The employees of the rank of Zonal Managers are entitled to accommodation of the area of 1201 to 1500 sq. ft. The records as of 23.6.2006 reflected that more than 30 Zonal Managers are awaiting allotment of premises. According to Respondent, it is not the Petitioner’s case that the application for regularization of tenancy had been made at the relevant period of time. The Petitioner had contested the petition right upto the Supreme Court and the said point had not been raised. In fact the Petitioner moved I.A. No. 2 Of 2010 in Special Leave to Appeal which has been dismissed. That application was withdrawn on 4.2.2010. The same was consequently dismissed as withdrawn. It is pointed out that this fact had not been disclosed in the petition filed. The record however, would show that in Para 17 the Petitioner had averred that he had filed application before the Supreme Court which was withdrawn. 5. At the hearing of this Petition, on behalf of the Petitioner the learned counsel submits that the pleadings by the respondents that after 2004 they 5 have stopped regularizing unauthorized occupants is not borne out from the records or facts. Reliance is placed on the order passed in Misc. Application No. 197 of 2008 on 2.1.2009. In that case, the City Civil Court was considering the issue whether subsequents events would give rise to the cause of action. In that case, the issue was requirement of suit premises. The court observed that what can be considered was present need and not anticipated need and whether the alleged need of the Corporation as on the date of issuance of notice to terminate and as on the date of initiation of eviction proceedings. That really would be of no assistance in dealing with the controversy before us. However, what emerges from the said affidavit and there is no other material on record produced by the Petitioner to show that the plea raised by the respondent that after 2004 they had not been regularizing illegal/unauthorized occupation is contrary to the record. 6. The other aspect of the matter is that after SLP was dismissed, Petitioner was allowed to reside in the premises based on an undertaking. As already pointed out, the judgment in Misc. Application No. 137 of 2008 is clearly not applicable and the Petitioners cannot derive any assistance from that judgment. As it was delivered in an entirely different context. Once we hold that the respondents have demonstrated that the policy has changed after 2004 and as the Petitioner’s application is only of the year 2009, it 6 cannot be said that the action of refusing Petitioner’s application for regularization is arbitrary and or in violation of Article 14 of the Constitution of India. 7. The learned counsel relied on large number of judgments including Jamshed Hormusji Wadia Versus Board of Trustees, Port of Mumbai AIR 2004 Supreme Court 1815, Nusli Nevile Wadia Vs. New India Assurance Co. ltd. And Anr. 2006(3) Mh. L.J. 713, New India Assurance Co. Ltd. Vs. Nusli Neville Wadia (2008) 3 Supreme Court Cases 279, M/s. Dwarkadas Marfatia and Sons V.s Board of Trustees, Bombay Port AIR 1989 Supreme Court 1642, M/s. Philips & Co. Vs. The Oriental Insurance Co. Ltd. And Ors. 1996(1)ALL MR 185, Ashoka Marketing Ltd. Vs. Punjab National Bank, AIR 1991 Supreme Court 855, Persis Vs. Kothawaila Vs. LIC 2004 (4) Bom.C.R. 610, Minoo Framroze Balsara Vs. UOI AIR 1992 Bombay 375, Niranjankumar Vs. Dhyan Sigh AIR 1976 Supreme Court 2400. In our opinion, basically the ratio of most of the judgmens is that the State or its instrumentalities in their dealings with citizens their action must be on the touchstone of the provisions of the Constitution which is fairness and non-arbitrariness. In the instant case the order of eviction was upheld by the Supreme Court. The respondents have clearly demonstrated, their need for the premises. Merely because at some point of time, some Premises may remain unoccupied, would not mean that respondents are not 7 entitled to the premises or have no need for them. 8. The other aspect of the matter is that the Petitioners had taken out I.A., before the Supreme Court in respect of the same relief which has now been claimed in the present petition. While withdrawing the I.A. No. 2 of 2010 no liberty was obtained nor was the liberty sought from the court to maintain the present proceedings. In these proceedings as now produced on directions from the court, the Petitioner for the same reasons as in this petition, had prayed that they be released from the undertaking and sought leave to fie an appropriate writ under Article 226/227 challenging the rejection dated 11th December, 2009 for regularization of occupation. That I.A. was dismissed as withdrawn. It was moved on 20.1.2010. 9. In our opinion, for all the aforesaid reasons, we find no merit in this petition which is accordingly dismissed but without costs. (A.A. SAYED ,J.) (F.I. REBELLO,J.)