Final Order 1

Order Details: Copy of Judgment
Pdf Text: M/s. Ethison Metal Industries thro.its Prop. & Anr. Vs. LIC
Misc. Appeal No. 11 of 2020
Received on : 13.01.2020
Registered on : 28.02.2020
Decided on : 01.10.2021
Duration : Y01 M08 D14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No. 11 of 2020
(CNR No.MHCC010006062020)
1. M/s. Ethison Metal Industries
Through its Prop.Ms. Sylvia Pais
Aged _______ years, Indian Inhabitant,
T.C. No.2391, at JBNT,
Vallabhnagar, LIC Colony,
Mandpeshwar Road,
Boriwali(W), Mumbai 400 103.
2. Rajendra Reddy
Aged 39 years, Indian Inhabitant
Occ: Service,
A: B/301, Suja Sani CHS Ltd.,
D.P.Road, Near Corporation Bank,
I.C. Colony, Borivali(W), ..Appellants/
Mumbai – 400 103 Org.Opponents Nos.1 and 2
Versus
Life Insurance Corporation Of India
A Statutory Corporation established Under the
Life Insurance Corporation(Act No.XXXI of 1956)
Having its office at Yogakshema, West Wing,
Jeevan Bima Marg,Mumbai 400 021 Respondent/Org.Applicant
APPEARANCES
For the appellant :
− Mr.Amrendra Mishra, Advocate
with Mr. Asif Shaikh
For the respondent:
− Mr. Akshay Shah, Advocate
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M/s. Ethison Metal Industries thro.its Prop. & Anr. Vs. LIC
Misc. Appeal No. 11 of 2020
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL (C.R.No.19)
Dated : 1st October, 2021
ORAL JUDGMENT :
Order passed by the Estate Officer on 20.12.2019 in Case Nos.103
& 103A of 2016 u/s. 5 and 7 of The Public Premises (Eviction of
Unauthorized Occupants)Act , 1971 directing eviction of the appellants
from the subject premises namely T.C. No. 2391, JBNT, Vallabhnagar,
LIC Colony, Mandapeshwar Road, Borivali(W), Mumbai – 400 103, as
also payment of damages, is assailed in the present appeal.
2. Facts material for disposal of this appeal are as under:
Respondent/LIC filed an application before the Estate Officer on
26.10.2016 u/s. 5 and 7 of The Public Premises (Eviction of
Unauthorized Occupants)Act, 1971 contending interalia that the
appellants unlawfully and in breach of terms and conditions of tenancy
had subdivided the subject premises in two unequal portions by putting
a brick wall and the bigger part therein was being used for “Sales and
Service” shop for electric equipments and the smaller portion came to be
occupied by the carpenter for furniture business. This was done by
subletting the subject premises to appellant No.2 who was Opponent
No.2 before the Estate Officer and also Opponent No.3 who has not
been impleaded in the present appeal. All this is done without any
authority, consent and permission from the respondent/LIC.
3. On 5.3.1992 a letter was received by respondent/LIC from one
Smt. Mariette Rose Lobo claiming to be daughter of Smt. Ethel B.Pais
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Misc. Appeal No. 11 of 2020
who was the wife of the original tenant informing respondent/LIC that
the subject premises which was let out for godown was converted into
an electric shop and was sublet by her mother by entering into
partnership agreement. Thereafter on 13.4.2013 the respondent/LIC
called upon the appellants to remove the partition and other
encroachments to which an explanation was given by the appellants but
was not accepted, and since there was no compliance, the lease was
terminated vide letter dt.17.9.2013 calling upon appellant No.1 to
handover vacant and peaceful possession and it is thus, contended that
w.e.f. 1.11.2013 the appellants were in unauthorized occupation of the
subject premises and were also liable to pay damages from that date.
Accordingly, an application was preferred before the Estate Officer by
placing reliance on the following documents:
(i) Building Inspector's Reports dt. 28.3.2013 and 28.5.2013
alongwith photographs.
(ii) Letter dt. 5.3.1992 from Mrs. Mariette Rose Lobo to LIC.
(iii) Copy of letter dt. 13.4.2013 from LIC to opponent No.1 i.e.
appellant No.1 and reply thereto.
(iv) Copy of letter dt. 22.5.2013 from LIC to Opponent
No.1/appellant No.1.
(v) Copy of Notice of termination dt.17.9.2013 with Regd.
Acknowledgment due.
(vi) Building Inspector's Report dt.3.1.2014 with photographs
(vii) Building Inspector's Report dt.22.1.2014 with copies of
Shops and Establishment Act and Electricity Bill for August,
2013
(viii) Valuation Report dt. 28.10.2014 alongwith Damages
Calculation Sheet.
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4. Show cause notice was issued by the Estate Officer to the
appellants and Written Statement was filed by opponent No.1 i.e.
appellant No.1 wherein it was contended that the Estate Officer had no
jurisdiction since appellant No.1 was prenationalisation tenant and
covered by the judgment in the case of Suhas Pophale Vs. Oriental
Insurance Co. [(2014)4 Supreme Court Cases 657]. It was contended
that there was no breach of tenancy committed by the appellants either
by putting the brick wall or by subletting the premises and that
appellant No.2 was the employee of appellant No.1 and original
Opponent No.3 was also long back employee of appellant No.1 and that
inspection reports were false and the termination of tenancy was not
valid. The appellants relied upon the following documents:
(i) Rent receipts for the month of September,1975 and September
1989.
(ii) Bombay Shops and Establishment Registration Certificates
(iii) Letter dt. 5.3.1992 from Mrs. Mariette Lobo to LIC.
(iv) Letter dt. 2.10.2013 from Mrs. Mariette Lobo to LIC.
(v) Letter dt.7.6.2013 from Opponent No.1/appellant No.1 to LIC.
5. Consequent upon the aforesaid pleadings, respondent/LIC filed
evidence of Shri Dattaraj Prabhukhanolkar and relied upon following
documents:
(i) Copy of Terms and Conditions of Tenancy dt. 13.12.1962
(ii) Copy of decree in Suit No. 61/54761 filed in Small Causes Court
between LIC and one Shri V.N.Soni
6. Respondent/LIC has also examined one Mr. Sanjay Sawant, Mr.
Samuel C.Sawant and Valuer Shri R.C. Malhotra in support of its' case
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whereas appellants filed evidence of appellant No.2 and upon
consideration of the material that was placed on record, the Estate
Officer after framing the issues and considering the evidence on record
passed the order as aforesaid.
7. Heard Learned Counsel for the parties.
8. In such circumstances, following points arise for my consideration
and my findings thereon for the reasons therefor, are as under:
POINTS FINDINGS
1. Whether the Estate Officer had jurisdiction to
entertain the application filed by the
respondent/LIC?
..In the affirmative
2. Whether there was an illegal subdivision of
the subject premises?
..In the affirmative
3. Whether the subject premises were sublet in
contravention with the terms of Lease?
..In the affirmative
4. Whether the termination was valid and
proper?
..In the affirmative
5. Whether the appellants are in unauthorized
occupation of the subject premises?
..In the affirmative
6. Whether the quantification of damages is just
and proper?
..In the affirmative
7. What order? ..As per final
order.
R E A S O N S
Point No.1:
9. Although it has been contended by Learned Counsel for the
appellant that since the original tenant of the subject premises was
inducted by 1956, he would be covered by judgment of the Hon'ble
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Supreme Court in the case of Suhas Pophale Vs. Oriental Insurance
Co. [(2014)4 Supreme Court Cases 657], wherein it has been observed
that the prenationalisation tenants would not be covered by The Public
Premises (Eviction of Unauthorized Occupants)Act, in this regard, it
would be apposite to mention that although such a contention has been
raised by the appellants, there is no document to show that the
predecessor of appellant No.1 was tenant since 1956 as has been
claimed. On the contrary, documents have been placed on record to
show that initially subject premises were let out to one Shri V.N.Soni
and decree passed in Small Causes Court in Suit No.71/54761 has been
placed on record and it is dated 27.7.1961. Admittedly, this decree
pertains to the subject premises and if said Mr.V.N.Soni was tenant and
he was directed to be evicted in 1961, it cannot be said that appellant
No.1 or predecessor of appellant No.1 was tenant prior to 1961 and
thus, the factual foundation that is required to be made out even for
taking the benefit of judgment in question, has not been made out and
thus, the contention in this regard appears to be wholly frivolous and
was rightly negated by the Estate Officer. As such, I answer Point No.1
accordingly.
Point Nos.2 to 5:
10. At the outset, it would be appropriate to mention that neither The
Public Premises (Eviction of Unauthorized Occupants) Act nor The
Transfer of Property Act mandates making out of ground for terminating
tenancy of the tenants as in the case of tenants that have protective
umbrella of Rent Legislation. The owner of the Premises under The
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Public Premises (Eviction of Unauthorized Occupants) Act, even without
making out any ground for eviction, can merely terminate the tenancy
and upon such termination of tenancy, the occupation of the occupant
would naturally become without any authority and he can be said to be
in unauthorized occupation of the premises. The only rider that is
imposed by way of interpretation of the provisions of the Act is that the
action of the owner at the time of invoking of the powers under the Act
ought to be fair, reasonable and bonafide. It is in that view, the
evidence led by before the Estate Officer is required to be taken into
consideration.
11. As far as subdivision of the premises is concerned, not just the
concerned Inspectors were examined before the Estate Officer but even
the photographs of the subject premises have been placed on record to
show that there was clear subdivision by erecting the brick wall. It has
been contended by Learned Counsel for the appellant that there is no
material to show that there was no brick wall in existence earlier. Again,
it would be worthwhile to point out that there was one tenancy Code in
respect of the subject premises while the proceedings before the Small
Causes Court were initiated by respondent/LIC against the erstwhile
tenant and thus the natural corollary is that the subject premises were
subsequently subdivided.
12. It is further contended by Learned Counsel for the appellant that
brick wall is only 6ft. In height and for effective subdivision of the
premises, the same ought to have been upto ceiling. In any case, said
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subdivision without consent of the respondent/LIC, was clearly in
breach of the terms of tenancy. All along it is appellant No.2 who was
seen in the subject premises and above all, the most important aspect
which cannot be lost sight of is that appellant No.1 has not led evidence
before the Estate Officer and evidence is led by appellant No.2 who
appears to be running the shop in the subject premises and prosecuting
the present litigation as well. It was incumbent on the part of appellant
No.1 to lead evidence in order to rebut the material that has been
produced on record by the respondent/LIC. Thus, I have no hesitation
to hold that it cannot at all be said that respondent/LIC was not justified
in terminating the tenancy based on the material available with it at
that point of time. It is to be noted that during the pendency of this
appeal, the subject premises have been sealed but the respondent/LIC
was directed not to create any third party interest therein. In such
circumstances, I answer Point Nos.2 to 5 accordingly.
Point Nos.6:
13. In order to make out a case for payment of damages,
respondent/LIC has examined Valuer Mr. R.C. Malhotra and by
adhering to Rule 8 of The Public Premises Rules, 1971, damages at
Rs.40,089/ per month has been assessed for the period of unauthorized
occupation. There is no contrary evidence that has been led by the
appellants. The rate of interest that was claimed by respondent/LIC was
12% p.a. but the Estate Officer has granted interest at the rate 9% p.a.
Thus, this aspect of the order considering the material on record and the
premises cannot be faulted with and as such, I answer Point No.6
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Misc. Appeal No. 11 of 2020
accordingly and pass the following order:
ORDER
1. Misc. Appeal No. 11 of 2020 stands dismissed.
2. Interim orders/directions if any, stand vacated.
1.10.2021 (S.B.AGRAWAL)
Principal Judge,
City Civil Court,
Gr.Bombay.
Dictated on : 1.10.2021
Transcribed on : 1.10.2021
Signed on : 1.10.2021
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Misc. Appeal No. 11 of 2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 1.10.2021 (At 3.35 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 1.10.2021
Order signed by P.O. on 1.10.2021
Order uploaded on 1.10.2021
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