1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3275 OF 2010 M/s.Gaekwar Agriculture and Chemical Company Limited and Anr. : Petitioners. Versus The Estate Officer, The Oriental Insurance Co. Ltd. and ors. : Respondents. Mr. A Y Sakhare i/by M/s.Shelke & Co. for the Petitioners. Mr. V Y Sanglikar for Respondent Nos.1 and 2. CORAM : A. M. KHANWILKAR, R. M. SAVANT, JJ. DATED : 28th April 2010 P.C. : 1 Heard counsel for the parties. 2 This Petition under Article 226 of the Constitution of India takes exception to the decision of the City Civil Court, Mumbai dated 9th March 2010 in Miscellaneous Appeal No.68 of 2006. It is indisputable that the Respondents are the owners of the structure in which the Petitioners are occupying Room No.18, 2nd Floor, Oriental Insurance Building, 31, Dr.V B Gandhi Marg, Fort, Mumbai-400 023. In other words, the premises occupied by the Petitioners are 2 admittedly a public premises. The said premises were allotted to the Petitioner No.1-Company for carrying on business of agricultural and chemical. During the course of evidence, the Petitioners have admitted that the Petitioner No.1-Company practically had no business since 1986. The Petitioner No.2 purchased the majority stock in the Petitioner No.1-Company in the year 1985-86. The Petitioner No.2, who is the sole proprietor of Petitioner No.-2, purchased the stock in the Petitioner No.1 Company, at that time the Company had no other assets lying in the premises except the tenancy right therein. After procuring majority stock in the Petitioner No.1- company, the Petitioner No.2 started office of advocate therein. No other activity of the Petitioner No.1 Company was carried on in the premises in question after 1986. 3 In the light of these facts, the Respondent No.1 issued notice to the Petitioners under Section 4(1) of the Public Premises Act, on 3rd October 1997. After giving opportunity to the Petitioners, the Estate Officer has recorded finding of fact that at the relevant time admittedly, the Petitioner No.2 was running an office of advocate from the premises in question and no business activity of the Petitioner No.1-Company was carried on therein since 1985. In that 3 view of the matter, the Estate Officer took a view that occupation of the Petitioner No.2 was unauthorised and resultantly the Petitioner No.1 had lost its right to remain in occupation of the premises in question having permitted unauthorised occupation of the premises by others and for the purpose other than the business of Petitioner No.1. The relevant finding of the Estate Officer is found below Point No.2, which reads thus :- “Point No.2 – Are O.P.s in unauthorised occupation of the schedule premises and if so, from what date? As discussed above, I have held that notice dated 03.10.1997 is valid and proper and has the effect of terminating the monthly tenancy of O.P.1 Sec.2(g) of the PPE Act reads as under : “unauthorised occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.” The definition of unauthorised occupation is in 2 parts. The 1st part covers the occupation of persons without authority whereas the 2nd part covers the continuance in occupation by any person of public premises after the authority has expired or has been determined for any reason for whatsoever. Admittedly, the O.P. 1 had the authority to use and occupy the schedule premises prior to its 4 termination of tenancy. Its tenancy has been terminated by the notice dated 03.10.1997. Once the notice is held to be valid the O.P. 1 becomes an unauthorised occupant in respect of the schedule premises on expiry of the notice period of one clear month as mentioned in the notice. The notice is served in October, 1997 as is evidenced by the reply dated 07.11.1997. Hence, by virtue of notice dated 03.10.1997 O.P. 1 became unauthorised occupant in respect of the schedule premises w.e.f. 01.12.1997. M/s.Shelke & Co. whatever be its legal status, never had any authority from the applicants to use or occupy the schedule premises. The occupation of O.P. 2 is therefore unauthorised i.e. without authority of the applicants, ab-initio. Hence, w.e.f 01.12.1997 all the opponents were unauthorised occupants in respect of schedule premises. This is clear from a bare reading of Sec.2(g) of PPE Act.” On the basis of the above said finding the Estate Officer proceeded to hold that the notice issued against the Petitioners for eviction by virtue of Section 4(1) of the Act was valid and, therefore, directed the Petitioners to vacate the premises forthwith and to pay compensation for unauthorised occupation thereon. 4 This decision was carried in Appeal before the City Civil Court, Mumbai which has reiterated the finding of fact recorded by the Estate Officer and for which reason dismissed the Appeal preferred by the Petitioners. 5 5 Before this Court, it is contended that some of the reasons recorded by the City Civil Court are in favour of the Petitioners and the Petitioners were essentially challenging the adverse finding recorded by the City Civil Court. In so far as finding of fact recorded by the Estate Officer, as referred to above, it is not in dispute that the City Civil Court has reiterated the same finding of fact. In other words, with regard to the matter on finding of fact is concerned, we are faced with the concurrent findings of the Estate Officer as well as the City Civil Court in that regard. That finding would bind this Court and it is not open to this Court to re-appreciate the evidence on record to take a different view even if another view was possible. As aforesaid, in so far as the said findings recorded by the Estate Officer and reiterated by the City Civil Court are concerned, no attempt was made before us to question the correctness of the same either being manifestly wrong or perverse or otherwise. 6 The argument on behalf of the Petitioners before us is two fold. First argument is that issuance of termination notice dated 3rd October 1997 does not result in unauthorised occupation of the premises by the Petitioners. To buttress this submission, reliance is 6 placed on the dictum of the learned Single Judge of our High Court in the case of Akbarali A Premji and anr. V/s. Life Insurance Corporation of India and anr. decided on 9th September 2008 in Writ Petition No.4992 of 2008. In the said decision it is held that considering the guidelines issued by the Central Government mere issuance of notice of termination does not mean that the person in occupation should be treated as unauthorised occupant. 7 We have no difficulty in accepting this statement of law. However, we are of the opinion that in the event the appropriate authority or the Court were to hold that the termination notice issued by the Estate Officer against the occupant was valid in law, it would then necessarily follow that the occupation of the premises on and from the date of termination notice by the occupants would be unauthorised in law. 8 The scheme which is relevant to the provisions of Rent Act and protection available to the tenant that even after termination notice he does not cease to be a tenant but continues to be a statutory tenant cannot be invoked in relation to the action under the provisions of Public Premises Act. No such provision is found in the 7 provisions of Public Premises Act. In absence of such provision, it would necessarily follow that upon issuance of termination notice and in the event the said notice was to be held as valid and legal, the occupation by the person would be unauthorised for the purposes of the scheme of Public Premises Act. 9 The counsel for the Petitioners then relied upon the decision of Delhi High Court in the case of Mrs.Prem Lata Bhatia v/s. Union of India in LPA No.756 of 2003 decided on 30.01.2006. In the said case, the premises, which were public premises, were let out to the Appellant who later on incorporated the Private Limited Company wherein she along with her husband held 97.93% shares in the company and started doing business of the said Company. In the fact situation of that case, the Delhi High Court opined that merely because the business of the Private Limited Company was conducted from the premises, that would not result in occupation by the Appellant before it as unauthorised within the meaning of provisions of Public Premises Act. The fact situation in the present case, however, is entirely different. In the present case, the original allottee is the Petitioner No.1-Company. It was expected to remain in possession and carry on its business. But the said Company had stopped doing its 8 business admittedly since 1985 onwards. Around the same time the Petitioner No.2 purchased the majority stock of the Petitioner No.1 Company and thereafter started office of advocate, which was primarily the profession of the Petitioner No.2. No other business of the Petitioner No.1-Company in the said premises was carried on since then. It is in this background the termination notice was issued in October 1997. Suffice it to observe that the allotment was not in favour of the proprietor i.e the Petitioner No.2, but it was in the name of the Petitioner No.1 Company. The fact that the proprietor of Petitioner No.2 incidentally has majority of shares in the Petitioner No.1-Company and is the Director thereof does not mean that the Petitioner No.1-Company itself was carrying on its business from the Public Premises. It is also not the case of the Petitioners that the activity carried on from the Public Premises was predominantly that of the Petitioner No.1-Company. 10 On the other hand, we find that both the authorities below have consistently held that it is only the proprietor of Petitioner No.2 who was carrying on his office as an advocate from the said premises since 1986. In this factual background, the conclusion reached by the Estate Officer that the termination notice issued 9 against the Petitioners is legal and valid and is squarely covered within the mischief of Section 4(1) of the Act, is inevitable. We have no reason to depart from the said conclusion reached by the two authorities below. 11 The second argument of the petitioners is that as the building was in dilapidated condition, the tenants of the building collectively decided to repair the existing structure and construct a new building. This argument canvassed across the Bar is not substantiated from the record. In the reply filed before the Estate Officer, the stand taken was that the Tenants Association undertook structural repairs of the building. It would have been a different matter, if the original building was to be demolished and new building was to be erected by the Tenants Association. In that case, perhaps, the question of dual ownership may have become relevant, in which case the tenants could have contended that the Tenants Association is the owner of the structure. That question does not arise in the present case considering the stand taken in the written reply by the Petitioners filed before the Estate Officer as also the finding of fact recorded by the two authorities below. 10 12 Even the documents such as IOD pressed into service on behalf of the Petitioners does not take the matter any further. The said documents indicate that only “structural repairs” were carried out in the said building as per the approved plan. That does not mean that the original building has been completely demolished and new structure has been erected by the Tenants Association. Be that as it may, the argument of the Petitioners is that the tenants contributed substantial amount for repairs of the said building and further that the tenants made a representation to the State Authority that the building should be acquired by invoking provisions of Chapter VIII-A of the Maharashtra Housing And Area Development Act, 1976. Consequent to the said proposal, the Authority considered the same and has approved the said proposal. That approval however has been given only on 17th April 2009 by the Board. Even if we were to accept the extreme argument made by the counsel for the Petitioners that once the proposal to acquire has been taken by the Board, the property ceased to be public premises, that would at best relate to the date of approving the proposal on 17th April 2009. 11 13 The fact remains that the action under the provisions of Public Premises Act has been initiated against the Petitioners on the basis of the termination notice dated 3rd October 1997. The said proceedings would be terminated only upon divesting of title of the Respondent No.2 in relation to the building in question. So long as the Respondent No.2 is the owner of the said building, the premises occupied by the Petitioners will continue to be public premises in fact and in law. The approval given by the Board is referable to the power exercised by the appropriate Authority under the provisions of Section 103-B(4) of the Act of 1976. In our opinion, the title of the building of the Respondent No.2 would be divested only on taking the acquisition action to its logical end and more so upon taking possession of the property in question by the acquiring authority. The fact that there is a proposal to acquire the entire building in which the Petitioners are occupying one of the unit does not mean that the action initiated against the petitioners by the Estate Officer is without authority of law. The action as aforesaid was initiated in October 1997 by issuing termination notice and same has culminated with the order passed by the Estate Officer on 22nd August 2006, much before the proposal to acquire the building has been approved by the Board. 12 14 Realising this position, the counsel for the Petitioners lastly contended that the acquisition proceedings have been interdicted on account of the Writ Petition filed by the Respondent No.2 before this Court being Writ Petition No.2006 of 2009 in which interim order has been passed by this Court. According to the counsel for the Petitioners, so long the said proceedings are pending in this Court, the appropriate course would be to defer the action under the provisions of the Public Premises Act. 15 We find no merit in this submission. As aforesaid, the action under the provisions of Public Premises Act would abate only if the Respondent No.2 was divested of its title in respect of the building in question. That has not happend as of now. The fact that the City Civil Court has considered the matter in the different context that the process of acquisition is a long drawn process, in our opinion, would not make any difference. For the reasons which we have already recorded hitherto, the Petitioners will have to suffer the consequences of unauthorised occupation of the public premises and for the activity conducted in the premises which was without the permission and consent of the appropriate authority of the Respondent No.2. 13 16 Accordingly, we find no merit in this Petition and the same must fail. Hence the petition is dismissed. 17 At this stage, the counsel for the Petitioners submits that the Petitioners be given some time to approach the Apex Court against this decision. We have no difficulty in acceding to this request being reasonable one. In the circumstances, it is ordered that the decision of the Estate Officer which is impugned in this Petition shall not be given effect to for a period of twelve weeks from today subject however to Petitioners filing usual undertaking in this Court within one week from today, failing which it will be open to the Respondents to proceed against the Petitioners and in respect of the public premises in accordance with law. (R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)