IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL & CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.5672 OF 2004 Shri Abdul Aziz Khudabux Pathan age 54 years, Occupation : Service Residing at All India Glass Works Compound, 326, M.V.Road, Bail Bazar, Kurla, Bombay-400 072. (Since Deceased) 1] Abdul Rehman alias Munna S/o.Abdul Aziz Aged 52 years, Occ.:Service 2] Fazlur Rehman S/o.Abdul Aziz age 48 years, Occ.:Service 3] Abdul Qayum S/o.Abdul Aziz age 42 years, Occ.Service the heirs and legal representatives of the deceased Original Plaintiff Abdul Aziz Khudabux Pathan. And all are residing at All India Glass Works Compond, 326, M.V.Road, Bail Bazar, Kurla, Bombay - 400 072. ...Petitioners (Ori.Plaintiffs) Versus 1] The All India Glass Works Pvt.Ltd. a Company registered under the provisions of Companies Act, having its registered office at 111, Bhandari Street, Mumbai - 400 003. 2] M/s.Shakir Handling Agency a partnership firm, having registered office at 111, Bhandari Street, Mumbai-400 003. ...Respondents (Orgi.Defendants) ...... Mr.Vipin Kamdi with Ms.Bhandari i/b Ms.J.P.Thakkar for Petitioners. : 2 : Mr.Rajiv Patil with Mr.Sachin S.Punde for Respondent No.1. ALONG WITH CRIMINAL REVISION APPLICATION NO.167 OF 2004 1.Abdul Rehman @ Munna, Aged about 43 years, Occ.: Service, 2.Abdul Kayum @ Pattu, Aged 38 years, Occ.: Service Both residing at/in the Compound of All India Glass Works Pvt.Ltd., 326, Mathuradas Vasanji Marg, Bail Bazar, Andheri-Kurla Road, Mumbai - 400 072. ...Applicants Versus 1.All India Glass Works Pvt.Ltd., Having its Registered Office at 326, Mathuradas Vasanji Marg, Bail Bazar, Andheri-Kurla Road, Mumbai - 400 072. 2.The State of Maharashtra ...Respondents ...... Mr.Rajendra Sorankar for Applicants. Mr.Rajiv Patil with Mr.Subodh Desai for Respondent No.1. Mr.K.V.Saste, A.P.P. for Respondent No.2/State. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JUNE 6, 2005. JUNE 6, 2005. JUNE 6, 2005. JUDGMENT : JUDGMENT : JUDGMENT : 1. This common Judgment will dispose of both : 3 : the above numbered Writ Petition as well as Revision Application between the parties in relation to premises being tenement on the ground floor at All India Glass Works Compound, 326, M.V.Road, Bail Bazar, Kurla, Bombay - 400 072. 2. The Petitioners claim to be the successors of Shri Abdul Aziz Khudabux Pathan. The predecessor of the Petitioners had filed suit in the Court of Small Causes at Bombay being R.A.D. Suit No.3739 of 1990 against the Respondents asserting therein that he was in lawful occupation, enjoyment and possession of the suit premises from much prior to 21st May 1959 and continued to remain in occupation, enjoyment and possession thereof till the institution of the said suit by him. It was his case that the suit premises were sublet to him by Defendant No.1/Respondent No.1 (All India Glass Works Pvt.Ltd.) initially at monthly rent of Rs.15/-, which was later on increased and, at the relevant time, when the suit was instituted, he paid Rs.45/- per month towards rent. In the Plaint as filed, it is categorically stated that the amount towards rent in respect of the suit premises : 4 : was deducted by the Respondent No.1/Defendant No.1 directly from his salary, which included all permitted increases, electricity and water charges. In short, the case of the predecessor of the Petitioners was that he was occupying the suit premises as tenant thereof and no separate rent receipt was issued as the amount towards rent was deducted directly from his salary by the Respondent No.1/Defendant No.1, who is the owner of the suit property. It was the case of the predecessor of the Petitioners that he was in employment of Defendant No.1/Respondent No.1. On the above assertions, declaration was sought by the predecessor of the Petitioners that he was the lawful subtenant in the suit premises and consequential relief of injunction was also sought against the Respondents not to disturb his occupation, possession and enjoyment of the suit premises without due process of law. 3. On the other hand, the Respondent No.1 filed Ejectment Application No.35 of 2000 before the competent Authority which, however, was rejected on the finding that the Company did not : 5 : produce Leave and License Agreement executed between the parties in respect of the suit premises. Be that as it may, the Respondent No.1 had also taken out proceedings under Section 630 of the Companies Act before the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai being case No.30/S/91. The said proceeding was initiated in March 1991 asserting that the predecessor of the Petitioners was wrongfully withholding the suit premises even after he had ceased to be in the employment of the Respondent No.1 with effect from 30th November 1990, in that, failed and neglected to vacate the same and hand over vacant and peaceful possession thereof to the Respondent No.1 Company inspite of legal notice given in that behalf. The said complaint was filed by one Mohammed Rajabali Ibrahim, the Chairman and the Managing Director of the complainant/Respondent No.1. It is asserted that the company premises have been purchased by the Respondent No.1 Company, which was initially of All India Glass Works, a partnership firm as a running and going concern in 1951. At the relevant time, the employees employed by the said partnership firm including the : 6 : predecessor of the Petitioners Abdul Aziz Khudabux Pathan were absorbed in the employment of the complainant/Respondent No.1 Company along with other workers who were so continued, and as such, the predecessor of the Petitioners continued to work with the Respondent No.1 Company. It is the case of the Respondent No.1 Company that the predecessor of the Petitioners was provided accommodation in workers’ quarters on gratuitous basis. It is further asserted by the Respondent No.1 Company that in June 1972, the complainant Company was required to be closed down and workers were retrenched including the predecessor of the Petitioners with the permission of the Labour Commissioner. It is also the case of the Respondent No.1 Company that the premises which were occupied by the erstwhile workers of the Company were got vacated and thereafter demolished. It is the case of the Respondent No.1 Company that insofar as the predecessor of the Petitioners is concerned, he was re-employed by the Respondent No.1 Company in July 1972, as their Estate Manager to look after and manage the properties of the Company premises at Kurla. In about 1974, the : 7 : Respondent No.1 Company permitted the predecessor of the Petitioners to occupy and reside in a portion of the Company’s shed on gratuitous basis bearing Municipal Assessment Ward No.L-3402(9), 326-H in the Company premises as described in the Plan appended to the complaint along with stated furnitures, fixtures and other articles. The specific case of the Respondent No.1 Company is that the predecessor of the Petitioners was re-employed in July 1972 on terms and conditions stated in the appointment letter dated 15th July 1972, so issued, which provided for free quarters to be given in the compound of the Respondent No.1 Company, free from rent and all charges to be vacated within 48 hours, as and when demanded by the Respondent No.1 Company. During the pendency of the aforesaid proceedings, the predecessor of the Petitioners expired. As a consequence, the Petitioners were brought on record as heirs and legal representatives of Abdul Aziz Khudabux Pathan in both the proceedings. 4. The abovesaid suit was continued by the Petitioners as heirs and legal representatives of : 8 : the Plaintiff. Evidence was adduced by both sides in support of their respective claim in the said suit. The Small Causes Court at Bombay, by Judgment and Order dated February 10, 2000 was pleased to dismiss the said Suit being R.A.D. Suit No.3739 of 1990. On the evidence as adduced, the Trial Judge has found that the Plaintiffs failed to establish that they were lawful tenants in respect of the suit premises. On the other hand, it has found, the evidence would indicate that the predecessor of the Petitioners came in possession of the suit premises as the employee of the Respondent No.1 Company, being free quarters provided to him as condition of service. In substance, the Trial Court has taken the view that as the Plaintiffs failed to establish the relationship of the landlord and tenant; and instead, it is found that the original Plaintiff was a gratuitous licensee. As a consequence, the Court had no jurisdiction to try and decide the suit as filed, as the Plaintiff was not protected by the provisions of Rent Act. The decision of the Small Causes Court was taken in appeal by the Petitioners by way of Appeal No.233 of 2000. Even : 9 : the said appeal has been dismissed by the Appellate Court by oral Judgment dated February 12, 2004 upholding the findings reached by the Trial Court on re-appreciating the evidence on record. Against this decision, Petitioners have filed Writ Petition No.5672 of 2004. 5. Insofar as the action initiated by the Respondent No.1 Company under Section 630 of the Companies Act, the same culminated with Judgment and Order passed by the concerned Metropolitan Magistrate on September 30, 2003. The Magistrate following the findings of the Civil Court, ruled against the Petitioners. Even the objection regarding maintainability of the complaint about the absence of authorisation has been considered and negatived by the concerned Magistrate. The Magistrate consistent with the findings recorded by it, convicted the Petitioners for offence punishable under Section 630 of the Companies Act and sentenced to pay fine of Rs.1,000/- (Rupees One Thousand) each, in default, to suffer simple imprisonment for three months. The Petitioners were further directed to vacate the Company’s flat : 10 : within one month after the appeal period was over. This decision of the Magistrate was taken in appeal by the Petitioners being Criminal Appeal No.243 of 2003 before the Court of Sessions for Greater Bombay. Even the said Appeal has been dismissed by the Appellate Court by Judgment and Order dated March 23, 2004. Against this decision, Petitioners have preferred present Criminal Revision Application No.167 of 2004. 6. Although, the two proceedings are independent, but, pertain to same parties in respect of the subject premises of the Respondent No.1 Company, both the Writ Petition as well as Revision Application have been heard together and I think it appropriate to dispose of the same by this common Judgment. 7. I shall first deal with the issues raised in the Writ Petition questioning the correctness of the concurrent view taken by the two Courts below in dismissing the suit preferred by the Plaintiff for declaration that he was lawful subtenant in the suit premises. According to the Petitioners, the : 11 : Court has committed manifest error in not deciding the matter on merits, but non-suiting the Plaintiffs on the reasoning that the Court had no jurisdiction. It was argued that the finding reached by the Courts below that the original Plaintiff was the gratuitous licensee in the suit premises cannot be sustained as that case was not even pleaded by the Respondent No.1 Company in the written statement as filed. It was contended that the Respondent No.1 Company, in fact, has taken inconsistent pleas with regard to the status of the Plaintiff. In the ejectment application as was filed by the Respondent No.1 Company, the same proceeded on the assertion that the Plaintiff was occupying the suit premises as its licensee. Whereas, in the proceedings under Section 630 of the Companies Act instituted by the Respondent No.1 Company, it is asserted that the Plaintiff was put in possession of the suit premises and was occupying the same as service quarters. However, in the suit filed by the Plaintiff, the stand of the Respondent No.1 was that the Plaintiff was occupying the premises as gratuitous licensee. If the former stand was to be accepted that the : 12 : Plaintiff was licensee, then action under Section 630 of the Companies Act was unavailable to the Respondent No.1 Company. It was also vehemently argued that the Courts below have committed manifest error in finding that the Plaintiff failed to establish that he was occupying the suit premises on monthly rent basis. It was contended that the Courts below have misappreciated the documentary and oral evidence on record to hold that the Plaintiff was occupying the Suit premises as gratuitous licensee, so as to conclude that it had no jurisdiction to entertain the Suit. It was contended that to record that finding, the Court has relied on the document (Exhibit 2A) which was inadmissible. The Court has wrongly assumed that the said document is proved in evidence. This is the substance of the argument, which was canvassed before me across the bar. The Respondents, on the other hand, adopted the reasons recorded by the two Courts below as their submission to contend that no interference is warranted in exercise of writ jurisdiction in the fact situation of the present case. : 13 : 8. Having considered the rival submissions and going through the records with the assistance of the Counsel appearing for the parties, I have no hesitation in taking the view that no interference is warranted in exercise of writ jurisdiction in the fact situation of the present case. This is so because it is the suit filed by the Plaintiff for declaration that he was lawful sub-tenant in respect of the suit premises. In support of that claim, he has not produced any documentary evidence, but has only relied on the oral evidence of himself and P.W.2 Mr.Shaikh. The evidence as adduced by the Plaintiff has been considered by two Courts below. The same has been discarded for the reasons recorded by the Trial Court in Paragraphs 7 and 8 of its decision, which view is a possible view. The evidence of P.W.1 has been discarded inter alia, as he had no personal knowledge. Insofar as P.W. No.2 Mr.Shaikh is concerned, he was in service of Defendant No.1/Respondent No.1 Company, initially as clerk and later on as Labour Officer. He claims that he has personal knowledge about the record of the Defendant No.1 Company which may indicate that amount towards rent was : 14 : deducted from the salary of the Plaintiff. His evidence has been discarded by the Courts below on the reasoning that his claim is not supported by any documentary evidence. Besides, it has been found that this witness had personal grudge against the Company in respect of non-payment of his gratuity dues by the Respondent No.1 Company. In other words, the fact that the Plaintiff was occupying the suit premises on payment of rent, muchless as subtenant, has not been established by the Plaintiff. Finding so recorded by the Courts below, which is concurrent view taken by both the Courts, is unexceptional one. The Courts below have also analysed the documentary as well as oral evidence adduced by the Defendant No.1 Company, as can be discerned from the discussion in Paras 9 to 12 of the Trial Court’s decision. The Courts below have appreciated the said evidence and then recorded finding of fact that the Plaintiff was re-employed by the Defendant No.1 Company in the year 1972 and was provided suit premises as quarters in the compound of the property of the Defendant No.1 Company, free from rent and all charges. In other words, the Plaintiff was : 15 : occupying the suit premises on gratuitous basis while in employment of the Defendant No.1 Company. The fact that no charges were recovered from the Plaintiff or deducted from the salary of the Plaintiff, is not only deposed to by the Defendants’ witnesses but also supported by the documentary evidence which was produced before the Court as is referred to, by the Trial Court from paragraphs 9 to 12. Finding of fact so reached by the Trial Court has been affirmed by the Appellate Court. In this view of the matter, no interference is warranted in exercise of writ jurisdiction. 9. To get over this position, Counsel for the Petitioners would contend that the fact that the Plaintiff was occupying the suit premises on gratuitous basis was not even the case of the Defendant in the written statement as filed. This submission is completely ill-advised. In paragraph 5 of the written statement, it is clearly averred on behalf of the Defendant No.1 Company that the suit premises was given by the Defendant No.1 to the Plaintiff on gratuitous basis without charges, as he was employee of the Defendant No.1, with a : 16 : view to facilitate him to do his duty as an Estate Manager of the Defendant No.1. 10. It was then contended on behalf of the Petitioners that the Defendant No.1 Company had taken inconsistent stand with regard to the status of the Plaintiff in the suit premises. It was argued that in the ejectment application filed by the Defendant No.1 Company, it was averred that the Plaintiff was occupying the premises as licensee. That Application was, however, rejected by the competent Authority on the finding that the Leave and License Agreement was not produced by the Company. Whereas, in the proceedings under Section 630 of the Companies Act taken out by the Defendant No.1 Company, it is asserted that the Plaintiff was wrongfully withholding the suit premises even after having ceased to be in the employment of the Respondent No.1 Company. Indeed, the fact asserted in the ejectment application is that the Plaintiff was occupying the suit premises as licensee, that, however, does not mean that the case of the Respondent No.1 Company was that the Plaintiff was occupying the suit premises in some other capacity, : 17 : namely, other than being its employee. It is nobody’s case that in those proceedings, it is found that the Plaintiff was occupying the premises as "Licensee" as such on payment basis. On the other hand, the stand of the Respondent Company is that the Plaintiff occupied the premises as quarters while in employment, free from rent. The stand taken by the Respondent No.1 Company that the Plaintiff was occupying the premises on gratuitous basis does not militate against the Respondent No.1 Company in the proceedings taken out under Section 630 of the Companies Act. In that sense, for deciding the point in issue in the Suit as filed by the Plaintiff for declaration that he is lawful subtenant, the stand taken by the Respondent no.1 Company in different proceedings, will make no difference to the point in issue to be decided in the Suit as filed by the Plaintiff. That issue will have to be answered against the Plaintiff for want of cogent evidence to support his claim. On the other hand, the evidence adduced on behalf of the Defendant No.1 Company clearly establishes the fact that no charges were either recovered from the Plaintiff or deducted from his salary in respect of : 18 : the suit premises, which were occupied by the Plaintiff as staff quarters while in employment of the Company. The evidence, therefore, clearly establishes, as has been concurrently found by the two courts below and which finding of fact binds this Court is, that the Plaintiff was occupying the suit premises on gratuitous basis, while in service. If it is so, the Suit as filed by the Plaintiff ought to fail. 11. Attempt was made on behalf of the Petitioners to persuade this Court to take the view that the Courts below have misappreciated the evidence on record. However, I see no substance in this grievance. The basis on which the Courts below have concurrently found against the Plaintiff can neither be said to be manifest error or a perverse view. On the other hand, the finding so reached is founded on material on record and which is a possible view. Counsel for the Petitioners, however, argued that the Courts below have relied on the documentary evidence Exhibit 2A which was inadmissible. This argument clearly overlooks the fact that the document Exhibit 2A is an appointment : 19 : letter, copy whereof was produced during the evidence of Defendant to show that the original copy thereof was duly served on the Plaintiff, as he has acknowledged the same. The argument that the original appointment letter has not been produced, clearly overlooks that the copy of the original appointment letter will be in the custody of the Plaintiff and not the Defendant. The Defendant was only expected to produce the acknowledgement of having delivered the said appointment letter to the Plaintiff, which fact has been established from the evidence of the Defendant. On this reasoning, the argument that it was not open to the Court below to treat the document Exhibit 2A as proved, as original thereof was not produced, is, to say the least, ill-advised. 12. In other words, this Court has no hesitation in upholding the finding reached by two Courts below that the Plaintiff has failed to establish that he was lawful subtenant in the suit premises; whereas, the evidence on record amply proves that the Plaintiff was occupying the suit : 20 : premises on gratuitous basis, while in employment of the Respondent No.1 Company, as its Estate Manager. With this finding, it necessarily follows that the Small Causes Court had no jurisdiction to try and decide the suit as filed. In any case, the finding so reached by the Civil Court that the Plaintiff was occupying the suit premises on gratuitous basis, will bind the parties and would be relevant to decide the proceedings taken out by the Company under Section 630 of the Companies Act. Accordingly, the Writ Petition ought to fail and the same deserves to be dismissed. 13. That takes me to the questions raised in the Criminal Revision Application filed by the Petitioners challenging the order of conviction and sentence imposed by the Magistrate on the finding that the Petitioners were wrongfully withholding the suit premises of the Respondent No.1 Company. The first contention raised on behalf of the Petitioners is that the complaint as has been filed deserved to be rejected because of material irregularity, as there is no averment in the complaint that Shri Mohammed Rajabali Ibrahim, the : 21 : Chairman and Managing Director of the Complainant Company was authorised to file the said complaint under Section 630 of the Companies Act. Besides, the valid authorisation has not been proved even during the trial. It is then argued that Section 630 of the Companies Act was not available in the fact situation of the present case. According to the Petitioners, the status of the Petitioners has been described as licensee in respect of the suit premises and if it is so, Section 630 of the Companies Act cannot be invoked, which is available only against the employee, present or former or persons claiming through them put in possession of the premises of the Company. It was then argued that the fact that the Respondent No.1 Company has purchased the property from the erstwhile partnership firm has not been proved. Besides, the predecessor of the Petitioners was in the employment of the partnership firm and the Complainant instead, is a Private Limited Company. It was argued that the fact that the predecessor of the Petitioners was re-employed in July 1972 with the Respondent No.1 Company has not been proved. It was further argued that the Magistrate has : 22 : essentially decided the issue against the Petitioners mainly relying on the decision of the Small Causes Court clearly overlooking the fact that the said decision was pending in appeal. On the above arguments, it was contended that the proceedings under Section 630 of the Companies Act instituted against the Petitioners ought to fail. 14. On the other hand, Counsel for the Respondent No.1 Company has supported the conclusion reached by the two Courts below and contended that none of the arguments canvassed before this Court are of any substance. 15. Having considered the rival submissions, I shall deal with the first contention raised on behalf of the Petitioners that there is no assertion in the