:1: :1: :1: 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. 368 OF 2008 Akbar A.Premji and anr. ...Petitioners Versus Life Insurance Corporation of India and anr. ....Respondents ====== Mr.N.H.Seervai, Sr.Advocate with Mr.S.H. Merchant, Mr.Sherali Karinji, Ms.Chaitra Rao i/by. M & M Legal Ventures, Adv. for the petitioners. Mr.V.Y.Sanglikar, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 19TH MARCH, 2008. P.C. P.C. P.C. : : : 1. This Writ petition under Article 227 of the Constitution of India, is directed against the order passed by the Appellate Authority (Principal judge of the City Civil Court, Bombay), in an Appeal which was directed against the order passed by the Estate officer dated 22.11.2002 in Case No.740 and 740A of 1998. 2. Admittedly, the premises under reference are :2: :2: :2: residential premises. They are Queens Court, 136, Maharshi Karve Raod, Mumbai-400 020. The Estate officer ordered eviction, so also, directed the present petitioners to pay a sum of Rs.1,59,49,913/- with interest from 1.12.2002 being a sum which is payable as compensation/damages for alleged unauthorised occupation. 3. The Appellate Authority has set aside that part of the order of the Estate officer whereunder damages/compensation have been directed to be paid by the present petitioners but has maintained the order and direction, insofar as, the eviction from the residential premises. 4. Mr.Seervai, learned Counsel appearing for the petitioners has raised several contentions. The principal contention raised by him is that the Public Premises Eviction Act is not an Enactment meant to oust and evict tenants from residential premises. Mr. Seervai emphasizes the fact that the premises have been acquired by L.I.C. after the insurance business was nationalised in 1956. However, the tenancy dates back :3: :3: :3: to 1946. The case of Mr.Seervai, is that the tenancy has not in any manner changed hands. The L.I.C. has treated occupants alongwith tenants as those having no independent right in the premises. The occupants are none other than the family members of the Original tenant. The tenant had acquired additional premises at Versova, Mumbai where they have shifted. However, the son and other family members continued to reside in the premises. There is correspondence on record and repair permissions have been granted to these very Occupants by the L.I.C. He submits that the tenancy of 1946 has been purpotedly terminated in 1997 and the present petitioners have been termed as unauthorised Occupants. The petitioners case is that the concept of unauthorised occupancy as understood by the very Enactment and Guide-lines is something different. The Occupants are not Rank trespassers or outright outsiders. The very family has resided and continues to reside in the premises. The L.I.C. does not transfer the rent receipts for its own reasons does not mean that the persons in occupation are unauthorised occupants. He submits that these are very members who have been statutorily recognised and the PPE Act by no :4: :4: :4: stretch of imagination can be resorted to for eviction of the present petitioners. That apart, it is his case that the petitioners have partly succeeded before the Appellate Authority and the direction to pay the amount of a crore and Sixty Lacs is set aside. For the very reasoning, even the eviction should have been quashed and set aside. He has invited my attention to the reasoning in para 20 and 21 of the impugned order. He has also contended that the satisfaction of the Estate Officer is not just with regard to the alleged unauthorised occupation but he must be satisfied that it is necessary to evict the persons in occupation. He also invites my attention to the fact that although Declaratory Suit No.260 of 2003 has been dismissed on 29.4.2006/2.5.2006 an Appeal therefrom is pending. The impact of these proceedings does not in any manner mean that the petitioners have accepted the case of unauthorised occupancy. 5. Mr.Sanglikar, on the other hand has supported the impugned order. He has contended that the evidence before the Estate Officer would reveal that the persons who are presently challenging the eviction order have :5: :5: :5: no right to occupy the premises. Their tenancy has been terminated. The case that Alibhai Premji Tyrewalla was Head of the Joint Family and the rent receipts stood in the name of the Original Opposite Party No.1 for convenience has been disbelieved and rightly because the family has separated. The Estate officer has relied upon the oral and documentary evidence. Once the Corporation has never accepted the case of Alibhai as their tenant, then, probate of the will also will not have any impact. He has contended that the Notice dated 24.8.1997 terminates the rights. The premises are necessary for occupation of the Officers and Directors of the L.I.C. The premises are near the zonal and Head of L.I.C. In such circumstances, the order of eviction should not be interfered with but sustained. 6. I have perused the impugned orders with the able assistance of the learned counsel appearing for parties. The Estate Officer framed as many as seven Issues/Points as is clear from para-8 of the order of the Estate Officer. Each of these points are germane and relevant, inasmuch as, the eviction is from :6: :6: :6: residential premiss. The questions as to whether the termination is valid, whether the petitioners are in unauthorised occupation and liable to be evicted and whether they are liable to pay damages or not, have been answered in Affirmative. It is pertinent to note that on the point of termination being valid, the Estate officer does not dispute that the contention of the petitioners is that their late Father Allibhai Tyrewala took the tenancy in or about 1946 in the name of Opponent Akbar A. Premji. It is a fact that the monthly tenancy was in the name of Akbar Premji. The termination is of 24.10.1997. The Notice is sent to Versova address and copies are sent to Opposite Party no.2 Karim Premji. The finding is that Karim Premji has no authority to occupy the scheduled premiss as he has stated in his letter dated 4.10.1996 that Akbarali A. Premji has separated from the Family and started residing at Versova, Opposite party no.2 was residing in the Scheduled premises and request of Akbarali A. Premji for transfer of tenancy in the name of his mother by the Corporation was declined in 1973. That request to transfer the tenancy in the name of mother being declined on the ground that it was made during :7: :7: :7: the lifetime of the Tenant and further that each of these petitioners have been residing in the said premises for 20 years and their tenancy rights or their right to occupy the premises allegedly being terminated, to term the petitioners as unauthorised occupants and order their eviction is grossly unjust, unfair and violative of the Mandate of 14 of the Constitution of India. Reliance was placed in the decision of M/s. Dwarkadas Marfatia & Sons V/s. Board M/s. Dwarkadas Marfatia & Sons V/s. Board M/s. Dwarkadas Marfatia & Sons V/s. Board of of of Trustees of the Port of Bombay reported in AIR 1989 Trustees of the Port of Bombay reported in AIR 1989 Trustees of the Port of Bombay reported in AIR 1989 S.C.1642 S.C.1642 S.C.1642 and other authorities of the Supreme Court. In this behalf, a reference can usefully be made to the Statements in the Written Statement filed before the Estate Officer. The Original Opponents-Petitioner Nos.1 and 2 stated thus :- "13. With reference to the allegations, contentions and submissions made by the Applicants in the Show Cause Notice and the Application, the Opponents state that the true and correct facts are as under : A) One Mafatlal Gagalbhai & Co.Ltd then having their office at 29, Churchgate Street, Fort, P.B.No.1038, Bombay were the owners of the building known as Queen’s Court situated at 136, Queen’s Road (now known as Maharshi Karve Road), Mumbai. Sometime in December, 1946 Shri Allibhai Premji Tyrewalla, the father of the Opponents herein, acquired monthly tenancy rights in respect of the :8: :8: :8: Application premises from the said landlords on behalf of and in the name of the Opponent No.1 for the benefit of all the family members of Shri Allibhai Tyrewalla which included the Opponents, on the monthly rent of Rs.235.14 annas. The negotiations for acquiring the aforesaid tenancy rights were carried on with Shri Dalal of Mafatlal Gagalbhai & Co.Ltd. Shri Dalal resided at the time at Tara Baug Estate, Opp. Albless Baug, on the road now known as Raja Rammohan Roy Marg, Mumbai-400 004. B) The Opponent No.1 thus acquired tenancy rights of the application premises for the benefit of his parents, himself and his family members, his brothers and sisters including Opponent no.2 and all the members of the family of his father. No specific terms of tenancy as such were arrived at between the Original Landlord, on the one hand and the father of the Opponents representing Opponent No.1 or the Opponent No.1 on the other hand, except the stipulated amount of rent and the purpose of acquiring the said tenancy as aforesaid. It was an expressed or implied term of the said tenancy, as obvious from the conduct of the landlords, the Opponent No.1 and all the members of the Family for over 5 (five) decades that all the members of the Family of Shri Allibhai Tyrewalla will be entitled to reside in the suit premises at all times. At the time when the said tenancy was acquired by Opponent No.1 as a result of negotiations between his father, Shri Allibhai Premji Tyrewalla and the landlords, the following persons occupied the said Flat viz. 1)Alibhai Premji Tyrewalla - 48 years. 2)Rahematbai Allibhai Premji (Wife)-36 years. 3)Akbarali Allibhai Premji (Son) (Oppnt.No.1)-24 years. :9: :9: :9: 4)Maleksultan Allibhai Premji(Daughter)-18 yrs 5)Sultana Allibhai Premji(Daughter)-16 yrs 6)Kamruddin Allibhai Premji(Son)-14 yrs. 7)Goolsakkar Allibhai Premji(Daughter)-11 yrs 8)Karim Allibhai Premji (Son)(Oppnt.No.2)-9yrs 9)Amina Allibhai Premji (Daughter)-6 yrs. 10)Hamideh Allibhai Premji (Daughter)-3 yrs. 11)Roshanbanu Akbarali Premji(Daughter-in-law) 23 years. 12)Nazlin Akbarali Premji(Grand-daughter)-3yrs 13)Karim Akbarali Premji(Grand-son)-10 months 14)Sadruddin Allibhai Premji (Son)-6 months The Opponents state that the following members of the family were born in the Application premises, namely : 1)Allauddin Allibahi Premji (Son) - 20/01/49 2)Amyn Allibhai Premji(Son)- 22/10/51 3)Mehmood Akbarali Premji(Grand-son) 25/11/52 4)Hassan Allibhai Premji(Son) 08/02/54 5)Selina Akbarali Premji (Grand-daughter) 15/06/59 6)Nisha Karim Premji (Grand-daughter) 6/12/65 7)Aly Karim Premji (Grand-son) 30/05/68 8)Rahim Karim Premji (Grand-son) 21/10/72 The Opponent No.2 married on 12th January, :10: :10: :10: 1964 and continues to live in the Application premises with his wife and children. The brother of the Opponents, Amyn Allibhai Premji, also lives on the Application premises since his birth. The elder son of the Opponent no.2, Aly Karim Premji married on 16th November, 1997 and continues to live in the Application premises with his wife. The second son of Opponent no.2, Rahim Karim Premji also lives on the Application premises since his birth. The Opponent No.1 admits that the Opponent No.1 is the Monthly Tenant of the Applicants in respect of the said premises, although the said tenancy was taken by his father on behalf of himself and all the members of the family as aforesaid, the said tenancy is subsisting. The Opponent no.1 denies the said tenancy was validly terminated by the Applicants by its notice to quit dated 24th October, 1997, the Opponents dispute the validity of the said purported notice to quit. C) The Opponents state that the father of the Opponents was carrying on business as the sole proprietor in the name and style of M/s.Allibhai Premji Tyrewalla. The family was joint in food, worship and estate. The Opponents state that at the time when the tenancy of the Application premises was taken, the Opponent No.1 had no independent source of income and was assisting his father in the business belonging to the father. The Opponent No.1 was dependent on his father. The family as stated above was joint in food, worship and estate and the father was the head of the family. D) The Opponents state that the Landlords Mafatlal Gagalbhai and Co.,Ltd at all times treated the father of the Opponents as the head of the family and it was the father who interacted with the said landlords. This will be clear from a letter dated 4th November, 1954 sent by the Solicitors of the Landlords, :11: :11: :11: M/s.Manilal Kher Ambalal & Doshi Co., Solicitors, having their office at 51, M.G.Road, Fort, Bombay addressed to the father of the Opponents in respect of the Application premises. The Opponents crave leave to refer to and rely on the said letter dated 4th November, 1954 when produced. E) The Opponents state that the Applicants by their letter dated 18th January, 1957 informed that they had purchased the property from the said landlords Mafatlal Gagalbhai & Co.Ltd on 31st December, 1956 and requested for payment of rent to them from 1st January, 1957. There was no mention of any terms and conditions of tenancy. The Opponents crave leave to refer to and rely on the said letter dated 18th January, 1957 from the Applicants to the Opponent No.1 when produced. F) the Opponents state that the Applicants purchased the said property subject to the tenants of the said property and also the terms and conditions applicable to them. So far as the Application premises is concerned, the Applicants accepted the terms of tenancy as stated above. The Applicants are subject to and bound by the said terms of tenancy accepted by the pervious landlords. The Applicants are estopped from disputing this agreement. The Opponents submit that the Applicants are aware and/or are deemed to be aware of the aforesaid facts and cannot now take a contrary position. G) the Opponents state that after the Applicants became the Landlords of the Application premises, the Applicants were aware that the father of the Opponents was the head of the family and interacted with him in respect of the Application premises. This will be clear from the letter dated 5th March, 1965 from the Applicants to the father of the Opponents. The Opponents crave leave to refer to and rely on the said letter dated 5th :12: :12: :12: March, 1965 when produced. H) The Opponent No.1 denies that the Opponent No.1 has transferred his interest in the said premises in favour of the Opponent No.2. It is travesty of truth to make such imaginary allegations. In a case where members of the large family are residing in a Flat, it is but natural that at one time or other, some of the members of the family, may shift partially or wholly to some other place for the sake of convenience. The Opponent No.1 took other alternate accommodation for the sake of convenience sometime in the year 1958 on tenancy basis in the south of Mumbai but the Opponent No.1 has always also been residing in the premises on some occasion, with the other members of the family though not frequently. No consideration has been paid by the Opponent No.2 or anyone else to the Opponent No.1. Thus the question of transfer of interest or sub-tenancy by the Opponent No.1 to the Opponent No.2 does not arise. (I) The Opponents state that the father of the Opponents expired on 21st July, 1966 and the mother on 26th July, 1992. At all times, till their respective deaths, the parents of the Opponents were residing in the Application premises. Several members of the family left the Application premises on account of marriage or went abroad for studies or better prospects. The family members who have continued to reside in the Application premises were the Opponent No.2 alongwith his wife and children and the brother of the Opponents Amyn Allibhai Premji, who was born, as stated, in the Application premises. (J) The Opponents state that the Applicants are aware of the facts stated above and have after the death of their father interacted with the Opponent No.2. This would be clear from the letters dated 13th/15th :13: :13: :13: January, 1977, 13th June, 1994 and 21st October, 1994. The Opponents crave leave to refer and rely on the said letters when produced. (K) The Opponent state that the tenants of the said building Queen’s Court have jointly made several representations to the Applicants and all such representations have been signed by the Opponent No.2 in respect of the Application premises. 14. The Opponents state that in view of the facts and circumstances sated above, which are also to the knowledge of the Applicants, it would be impossible to accept that the Opponents are in unauthorised occupation of the Application premises. It is evident that the termination of tenancy and the Show Cause Notices have been issued malafide and without application of mind. The Opponents submit that it is clear that the Applicants have acted contrary to the principles laid down by the Supreme Court and the Mumbai High Court and the Guidelines issued by the Government of India under the Public Premises Act, inter-alia to the Applicants as to when the provisions of the Public Premises Act ought to be resorted to. " 7. The case before the Estate Officer in the backdrop of the materials produced and the Issues framed has not been considered by the Appellate Authority at all. The Appellate Authority has in an order which is about 20 pages upheld the order of Estate Officer. From a reading of the order of the Appellate authority I do not find any application of :14: :14: :14: mind to the points framed and the grounds in the Memo of Appeal. Infact, before me the petitioners have referred to para-19 of the petition. The submissions have been made on each of the points including the Notice to Quit. The Argument is that the petitioners are not in unauthorised occupation is undisputed and unchallenged and evidence on record would show that the LIC treated the father of the petitioners as Head of the Family and the father interacted with the landlord in that capacity. The Flat at Versova stands in the name of the Wife of petitioner no.1, that Flat is an additional accommodation and that the petitioners have been allowed to occupy the premises despite treating the Family as separated allegedly for more than three decades. In my view, the orders of eviction at the instance of public bodies being expected to be examined by an High Ranking Independent Judicial Officer in Appeal, the same requires more careful and proper consideration. Ultimately, it is a matter of eviction of a Family from residential premises. The proceedings are serious and affecting the family. It is not as if the LIC terming the unauthorised occupation is enough. The law laid down by the Supreme court provides that an :15: :15: :15: Appellate Authority must apply its independent mind to all the matters which have been put in issue before the Estate Officer. The learned Appellate Authority seems to have completely lost sight of this vital aspect. The order under challenge therefore suffers from a grave and apparent error. Referring to the law and the principles laid thereunder, was not enough. The applicability thereof to the facts of each case is something which should have received due consideration. 8. The Learned Principal Judge should have appreciated that the word "Appeal" is defined as the Judicial Examination of the Decision by a Higher Court of the Decision of an Inferior Court. It is an Judicial Examination. A Right of Appeal is created to fulfil the demand of natural justice. This is to ensure that soundness of the Decision of the Inferior Court is tested by a Superior Court. Section 9 of the PPE Act confers a right of Appeal. It has been regarded always as continuation of the original proceedings. This court in a decision reported in 1981 1981 1981 Mh.L.J. Mh.L.J. Mh.L.J. page 936 Patesinghrao Anandrao Naik and Ors. page 936 Patesinghrao Anandrao Naik and Ors. page 936 Patesinghrao Anandrao Naik and Ors. V/s. V/s. V/s. R.V.Deshmukh, Joint Director and Joint Registrar R.V.Deshmukh, Joint Director and Joint Registrar R.V.Deshmukh, Joint Director and Joint Registrar :16: :16: :16: Co-operative Co-operative Co-operative Societies and Ors. Societies and Ors. Societies and Ors. has observed that the remedy of an Appeal is something which is guarantee to a litigant against an improper and unfair trial. It is also a guarantee that the Appellate Authority will not give finality to the judgment of the Trial Court as a rubber stamp or as an authority who is constituted merely to uphold such orders. The independent application of mind contemplated in an Appeal, which is a right created by the statute has been emphasized and relying upon several decisions in the field, this is what is observed :- "25. As observed in Pandit Bhullan’s case an appeal is a creature of statute. Further there is a vast difference between the revisional powers and the appellate powers. An appeal, as stated by Lord Davery in Pannamma v. Arumoosa is a proceeding in which a question is whether the order of the court from which the appeal is brought was right on the materials which the court had before it. In Legal Parlance appeal means judicial examination of the decision by the Higher Court of an inferior court. It amounts to, in essence and pith, a complaint to higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set aside. From this it would follow that an appellate court has power to go not only into the question of law, but also into questions of fact. Such a power would further enable the appellate court to review or reassess the entire evidence and come to its own conclusion. Litigant is entitled to a full, fair and independent consideration of :17: :17: :17: evidence and the material at the appellate stage. Under section 152 of the Act, right of appeal is provided in very wide and general terms. The appellate authority has to decide the Appeal as a quasi-judicial authority. To say the least the appellate authority cannot act mechanically as a mere rubber stamp. " . Further, in a recent Decision reported in 2008 2008 2008 AIR AIR AIR SCW 208 New India Assurance Company Ltd V/s. Nusli SCW 208 New India Assurance Company Ltd V/s. Nusli SCW 208 New India Assurance Company Ltd V/s. Nusli Neville Neville Neville Wadia & Anr. Wadia & Anr. Wadia & Anr., the Hon’ble Supreme Court observes thus :- (Concept of Fairness Paras 35 to 40). "48. Section 5 of the Act, on a plain reading, would place the entire onus upon a Noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead to a conclusion that the landlord is not required to adduce any evidence at all nor it is required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it wold be permitted to advance any argument. Is this contemplated in law ? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/or in :18: :18: :18: rebuttal to