Case: Dr. Preeti Bhatt &amp; Another Vs. Central Bank of India &amp; Another

the judgment of Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] this Court has examined them in Suhas H. Pophale [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . This Court has specifically observed in para 66 thereof that for a moment this Court was not taking any different position from the propositions laid down in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] In fact, what was done was to clarify that the Public Premises Act will apply only in certain circumstances. That being so, this submission of Mr Vikas Singh cannot be accepted.9. Mr Vikas Singh then referred us to a judgment of another Constitution Bench in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.[Kaiser-IHind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ], and particularly paras 40, 42 and 65 thereof. Para 40 of this judgment reads as follows: (SCC pp. 207-08)40. Once the PP Eviction Act is enacted then the Bombay Rent Act would not prevail qua the repugnancy between it and the PP Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31-3-1973 by Maharashtra Act 12 of 1970. The result would be from the date of the coming into force of the PP Eviction Act, the Bombay Rent Act qua the properties of the Government and government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the legislature of the State is repugnant to the provision of law made by Parliament, then the law made by Parliament whether passed before or after the law made by the legislature of the State, would prevail. It also makes it clear that the law made by the legislature of the State, to the extent of repugnancy, would be void.10. As seen from para 40 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] quoted above, the judgment clearly says that the Bombay Rent Act would not prevail qua the repugnancy between it and the Public Premises Eviction Act. That aspect has not been contradicted in Suhas H. Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . It also relies upon the judgment in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] which says that the Public Premises Act as well as the State rent control laws are both referable to entries in the Concurrent List and they operate in their own field. It is only in the area of its own that the State Rent Control Act applies and in its own time-frame. The judgment in Suhas Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16-9- 1958 when the Public Premises Act became applicable. Paras 42 and 65 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. That being so, it is not possible to accept this submission of Mr Vikas Singh.(emphasis added)Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. We have carefully perused the decision of the Apex Court in the case of Suhas Pophale (supra). In the facts of the said case, the proceedings under the said Act of 1971 were initiated in respect of a flat at Woodhouse Road, Opposite Regal Cinema, Colaba,One Mr.Eric Voller was a tenant of an erstwhile Insurance Company which was the owner of the said premises. On 20th December 1972, the said Voller inducted the appellant before the Apex Court in the said premises on Leave and Licence basis. Subsequently, the appellant was accepted as a tenant by the erstwhile Insurance Company. The management of the erstwhile Insurance company was taken over by the Central Government on 13th May 1971. The said Insurance Company merged with the Oriental Insurance Company Limited. The Competent Authority under the said Act of 1971 passed an order of eviction against Mr.Voller and the appellant before the Apex Court. The said order was confirmed in Appeal by the City Civil Court and in a Writ Petition by this Court. The order of eviction was challenged by the Appellant before the Apex Court.10. In the present case, the tenants father was admittedly a tenant of the said premises before the predecessor of the said Bank, Life Insurance Corporation of India, came into existence. Moreover, the petitioners father was admittedly a tenant of the said premises prior to 16th September 1958. The petitioners father died on 9th September 1997. At that time, the petitioner was staying with him in the said premises. The petitioner became the tenant on her fathers death. In view of what is held in paragraph 64 above, the proceedings under the said Act of 1971 against the tenant are not competent. In view of what is held by the Apex Court in the case of Suhas Pophale (supra) in especially in paragraph 64, the order of eviction under the said Act of 1971 could not have been passed against the tenant who along with her father occupied the premises from the year 1950. When the said Bank became the owner of the said premises, the tenants father was already a tenant of the said premises. The proceedings against the tenant under the said Act of 1971 are not competent in the present case.11. An argument was canvassed by the learned counsel for the petitioner that the said decision in the case of Suhas Pophale (supra) is per incuriam as it lays down the law which is contrary to the law laid down in the case of Ashoka Marketing (supra) by the Constitution Bench. We must note here that the Apex Court in the case of Suhas Pophale (supra) has extensively considered the decision in the case of Ashoka Marketing and has specifically recorded a finding that the view taken in the case of Suhas Pophale (supra) is not in conflict with the decision in the case of Ashoka Marketing. Thus, in terms, the Apex Court in the case of Suhas Pophale (supra) has held that what is decided by the said decision is not in conflict with the decision of the Constitution Bench in the case of Ashoka Marketing (supra). Hence, it is not open for us to hold that the decision in the case of Suhas Pophale (supra) is per incuriam.12. We may make a useful reference to the decision of the Apex Court in the case of Band Box Private Limited (supra). The Apex Court dealt with a specific argument that the decision in the case of Suhas Pophale is erroneous in the light of the earlier decisions of the Apex Court in the cases of Ashoka Marketing and KaiserIHind Private Limited.Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings.