Case: The Board of Trustee of The Port of Mumbai Vs. New India Assurance Company Limited

4. The facts of the Writ Petition, therefore, which lie in a narrow compass, are to the effect that, the Petitioner is the owner of the premises bearing Old R.R. No.647, admeasuring 428.66 sq. meters, with building standing thereon, situated at Apollo Reclamation, Mumbai. From 1st May, 1898 to 30th April, 1997, the petitioner has demised the said premises to Ardeshir B. Patel and another, for a term of 99 years. Sometime in the year 1956, by virtue of diverse assignments, the said premises came to be vested in Chandrakant Mulraj Khatau and Lalitkumar Mulraj Khatau. On 22nd March, 1960, by the Resolution bearing No.272, the predecessor of the Petitioner permitted Chandrakant, Lalitkumar and others to assign lease of the said premises to the Respondent. Since then, the Respondent is in possession of the said premises.5. On 12th October 2001, the Petitioner has, by its Advocates notice, terminated the tenancy of the Respondent in respect of the said premises and called upon the Respondent to hand over vacant and peaceful possession thereof to the Petitioner, along with arrears of compensation. Respondent failed to comply with the requisition in the said notice. Hence, the Petitioner filed an application before the Estate Officer on 28th February 2003 for necessary orders to be passed under Sections 4 and 7 of the Public Premises Act. On 25th September 2003, the Respondent filed reply/written statement to the said application before the Estate Officer. After holding due enquiry, by the order dated 10th October 2007, the Estate Officer allowed the application and directed the Respondent to hand over possession of the said premises and also to pay the arrears of compensation to the Petitioner. Against the said order, the Respondent filed statutory appeal, under Section 9 of the Public Premises Act, before the Principal Judge, City Civil and Sessions Court, Mumbai. It was allowed by the Judgment and Order dated 12th September 2014, setting aside the order passed by the Estate Officer. Being aggrieved thereby, this Writ Petition is preferred.

Reasoning:
8. In my considered opinion, as the entire controversy in this case revolves around the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd (Supra), it would be useful to consider the facts of that case and the legal position discussed therein, in detail, in order to ascertain whether the dictum of the law laid down by the Honble Apex Court in the said Judgment can be made applicable to the facts of the preset case.This question has arisen in the context of the eviction order dated 28th May 1993, passed by the Estate Officer of the first Respondent therein – the Oriental Insurance Company, invoking the provisions of the Public Premises Act with respect to the premises occupied by the Appellant since 20th December 1972. The eviction order passed by the Estate Officer therein has been upheld by this Court in its impugned Judgment dated 7th June 2010, rejecting Writ Petition No.2473 of 1996 filed by the Appellant.11. The facts leading to the said Appeal were that, one Mr.Eric Voller was the tenant of the Indian Mercantile Insurance Co. Ltd.e of the first Respondent – Oriental Insurance Company. Mr. Voller has executed a Leave and License Agreement in respect of the subject premises on 12th December 1972, in favour of the Appellant – Suhash H. Pophale, initially, for a period of two years and put him in the exclusive possession thereof. The erstwhile Insurance Company had not taken objection to the Appellant coming into the exclusive possession of the said premises. Conversely, his tenancy was accepted, initially, for residential purpose and, thereafter, even for the change of user, for practicing as Physician. The erstwhile Insurance Company subsequently merged on 1st January 1974 with the first RespondentOriental Insurance Company, which is a Government Company. A Suit for eviction and arrears of rent was filed against the Appellant by the said Company, which was pending. During that time, the Appellant therein had sent a letter dated 22nd November 1984 to the first Respondent, requesting them to regularize his tenancy as a statutory tenant. In response thereto, a show cause notice, under Sections 4 and 7 of the Public Premises Act, came to be issued to the Appellant by the first Respondent; thereafter, in the case preferred before the Estate Officer, an order of eviction came to be passed as such. The said order of eviction was subsequently confirmed by the City Civil Court, Mumbai, and thereafter by this Court also. It was theof the Second Appeal by Special Leave Petition before the Honble Apex Court.12. As can be seen from paragraph No.8 of the said Judgment, the principal contention raised by the Appellant in the said case, right from the stage of proceeding before the Estate Officer and even before this Court, was that, his occupation in the premises concerned was protected under the newly added Sectionof the Bombay Rent Act with effect from 1st February 1973, i.e. prior to the first Respondent acquiring title over the property from 1st January 1974. Therefore, he could not be evicted by invoking the provisions of the Public Premises Act and by treating him as an unauthorized occupant under that Act. The said contention was rejected by this Court holding that, the provisions of the Bombay Rent Act were not applicable to the premises concerned, as the premises were covered under the Public Premises Act. While arriving at this conclusion, this Court had relied upon the Judgment of the Constitution Bench of the Honble Apex Court in the case of Ashoka Mktg Ltd. Vs. Punjab National Bank, (1990) 4 SCC 406.   In this judgment, the contention that the provisions of the Public Premises Act cannot be applied to the premises, which fall within the ambit of the State Rent Control Act, was rejected. It was, therefore, held by this Court that, the Public Premises Act became applicable to the premises concerned from 13th May 1971 itself i.e. after the date from when the management of the erstwhile Insurance Company was taken over by the Central Government and not from the date of merger i.e. from 1st Januaryquestion was raised because the premises in that case were previously owned by the Private Insurance Company and, therefore, thetherein was enjoying the protection of beneficial legislation, like Bombay Rent Act. However, those premises acquired the status of public premises, on account of the merger with Oriental Insurance Company. Hence, the tenants, like the Appellant therein, were loosing protection of the Rent Control Act, which they were enjoying earlier. Therefore, it was held that, the said protection enjoyed by the tenant under the Rent Control Act, cannot be taken away by the Public Premises Act.28. The necessary corollary of this Judgment is that, in order to exclude any tenant from the clutches or coverage of the Public Premises Act, it must be shown that earlier the said tenant was enjoying the protection of the Bombay Rent Act or its successor Maharashtra Rent Control Act. As a result, if such tenant was earlier also excluded from the coverage or protection of the Bombay Rent Act or its successor, then, the question of depriving such tenant from the benefit of protection of the Rent Act, on account of the Public Premises Act coming into effect, does not arise. The provisions of the Public Premises Act will, therefore, become applicable automatically to such tenants, excluded from protection of the Rent Control Act, the moment, the said Act came into effect, as earlier also, those tenants were neither the tenants of private landlords, so as to enjoy the protection of the Rent Control Act, nor the status of being tenant of the public premises was thrust upon them on enactment of the Public Premises Act. Therefore, such tenants, who were excluded from the operation of the Bombay Rent Act, are required to be considered differently from the tenants, who were earlier enjoying that protection, being tenants of the private landlords. The judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (supra) is, thus, applicable to those tenants, who were earlier enjoying the protection of the Bombay Rent Act, being tenants of the private landlords. Hence, the said Judgment cannot be made applicable to the tenants, who were not enjoying the protection under the Bombay Rent Act.In view of the Judgment of this Court, it follows that the subject premises in the present case also, which belongs, since beginning, to the Port Trust, which is a local authority, are clearly excluded and exempted from the application of the provisions of the Bombay Rent Act and it‘s successor Maharashtra Rent Control Act. Even the definition of public premises, as given in Section 2(e)(v) of the Public Premises Act, categorically includes the premises belonging to the Board of Trustees, constituted under the Major Port Trusts Act, 1963.37. Once, therefore, it is held that, the premises in question were, since beginning, excluded from the protection of the Rent Control Act, being the premises belonging to the local authority, it follows that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd (Supra) cannot be applicable to the facts of the present case. The said Judgment, at the cost of repetition, can be made applicable only to those tenants, who were enjoying protection under the Rent Control Act. As regards the premises belonging to the Government or the local authority, these premises never enjoyed such protection. As, since beginning, these are the public premises, exempted from the application of Rent Control Act, the order passed by the Appellate Court, setting aside the eviction order, only relying upon the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (supra), cannot be sustainable in law.38. In the view, which I am taking, for distinguishing the Judgment of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), in the facts of the present case, I am also supported from the Judgment of the Calcutta High Court in the case of M/s B.C. Shaw and Sons Vs. The Union of India and Ors., 2014 SCC OnLine Calcutta 17606. In the said case also, the premises were belonging to the Indian Railways and hence it was held that, the premises were continued to be governed by the provisions of the Transfer of Property Act, 1882; hence, they were excluded from the purview of the Rent Control Act. After careful analysis of the Judgment of the Honble Apex Court in the case of Suhash H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), it was held that, the law laid down therein applies only to those tenants, who were already enjoying the protection of the Rent Control Act and not to those tenants, who were not enjoying such protection.Thus, the legal position, which emerges from this decision of Calcutta High Court, makes it clear that, the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), cannot be made applicable as straight jacket formula to all the premises, where tenancy was created prior to Public Premises Act came into effect. It can be applicable only to those premises, to which the provisions of the Rent Control Act were applicable and not to those premises, like the present one, which were specifically excluded from its operation. The learned Appellate Court has, in this case, not taken into consideration this distinguishing factor, while allowing the Appeal, by applying the law laid down in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). Hence, it needs to be said aside.41. Though learned counsel for the Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Dr. Preeti Bhatt Vs. Central Bank of India, 2017 (6) Mh.L.J. 33, in my considered opinion, the same cannot be applicable, as, in that case, the property was purchased by the Central Bank of India on 22nd May 1972; whereas, the tenant was in possession of the said premises from the year 1950 and in view thereof, it was held that, as the tenant enjoyed the protection of the Bombay Rent Act, since prior to the Public Premises Act came into effect, therefore, in view of the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd., the eviction order cannot be sustained.42. As stated above, in the present case, since beginning, the subject premises are owned by the local authority and, therefore, excluded from the application of the Rent Control Act, that is the distinguishing factor in the present case from this Judgment of Dr. Preeti Bhatt Vs. Central Bank of India (Supra).43. Thus, the position, which emerges from the above discussion, is that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Issuance Co. Ltd. (Supra), was in the particular facts and circumstances of the case, namely, the Appellant being tenant of the private landlord and, therefore, enjoying protection under the Rent Control Act. The status of being a tenant of the Public Company was thrust upon him. Hence, it was held that, such protection, which the Appellant was enjoying under the Rent Control Act, cannot be taken by the Public Premises Eviction Act, after it came into effect.44. As against it, in the facts of the present case, the Respondent was, since beginning, the tenant of the public premises belonging to the local authority, like Port Trusts, which were excluded from the coverage of the Rent Control Act and hence, not enjoyed protection under the Rent Act. Therefore, Respondent cannot get benefit of the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). As this is the only issue involved and only on this point alone, the Appellate Court has reversed the eviction order passed by the Estate Officer, it has to be held that, the impugned order has to be quashed by allowing this Writ Petition.