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

The subject matter of these petitions is the property known as Ewart House situated at 22, Homi Mody Street, Fort, Mumbai 400 032 (for short the said building). The said building comprises of ground plus four upper floors. The respondent in the Writ Petition No.1290 of 2015 and the petitioner in Writ Petition No.5315 of 2012 is Central Bank of India, which a body corporate established under the provisions of the Bank Companies (Acquisition and Approval of Undertakings) Act, 1970 having its central office at Chandramukhi, Nariman Point, Mumbai 400 021. By a deed of conveyance dated 22nd May 1972, the Life Insurance Corporation of India sold the said building to Central Bank of India (for short the said Bank).2. The said Bank filed an application before the Estate Officer appointed under the provisions of the Public Premises (Eviction of unauthorized Occupants) Act, 1971 (for short the said Act of 1971). The eviction application was filed against the petitioner in Writ Petition No.1290 of 2012 and the first respondent in Writ Petition No.5315 of 2012 Dr.Preeti Bhatt (for the sake of convenience referred as the tenant). It was stated in the said application by the said Bank that the tenant was in occupation of a premises on the fourth floor of the said building. It was stated that the area of the said premises on the fourth floor was 1800 sq ft of carpet area (for short the said premises). Monthly rent was Rs.683.85. In the application, it was stated that by Advocates notice dated 13th June 2007, the tenancy of the tenant was terminated by the said Bank and the tenant was called upon to vacate the said premises. The tenant replied to the said notice raising various contentions. The first prayer in the said application made before the Estate Officer was for directing the tenant to hand over the vacant possession of the said premises to the said Bank. The second prayer was for directing the tenant to pay mesne profit at the rate of Rs.2,17,000/per month with effect from 1st July 2007 till the date of handing over vacant possession of the said premises to the said Bank with interest thereon at the rate of 12% per annum.3. The said application was contested by the tenant by filing a written statement. It was contended in the written statement that her deceased father Mr.R.S.Bhatt was the original tenant in respect of the said premises. She stated that she was residing in the said premises right from the year 1950 with her father. It was contended that she was suffering from Cancer and that she has been considered to be legally blind. She relied upon a medical certificate issued to that effect. She contended that the notice of termination of tenancy was illegal. She contended that the said Bank was not a Statutory Authority within the meaning of sub clause (iii) of clause (fa) of section 2 of the said Act of 1971. The tenant denied the claim for compensation made by the Bank.4. Evidence was adduced before the Estate Officer by both the parties. The Estate Officer by his Judgment and Order dated 24th October 2011 directed the tenant to vacate the said premises within a period of 15 days. He directed the tenant to pay damages at the rate of Rs.1,83,600/from 1st July 2007 till the date of handing over peaceful possession of the said premises to the said Bank. Interest was made payable on the said amount with effect from 1st July 2007 at the rate of 6% per annum. Being aggrieved by the said Judgment and Order of the Estate Officer, the tenant preferred an Appeal before the City Civil and Sessions Court. By the Judgment and Order dated 12th January 2012, the learned Judge of the City Civil Court partly allowed the appeal. But the order of eviction was confirmed. However, the amount of damages was reduced by quantifying the same at Rs.90,000/per month. Being aggrieved by the order of eviction and the order of payment of damages, the tenant has preferred Writ Petition No.1290 of 2012. Being aggrieved by that part of the Judgment and Order dated 12th January 2012 of the Appellate Court by which the quantum of damages was reduced, the said Bank has filed a Writ Petition No.5215 of 2012.

Reasoning:
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.