Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc. Appeal.99.19
Received on : 28/02/2019
Registered on : 04/03/2019
Decided on : 20/10/2020
Duration : Y M D
01 07 16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Miscellaneous Appeal No.99 of 2019
Shapoorji Pallonji & Co. Ltd.,
having its office address at
New India Centre, 10th Floor
(South Wing), 17, Cooperage
Road, Mumbai – 39. ..Appellant
V/s.
1. The New India Assurance Co. Ltd.,
a Govt. Company having its registered
address New India Assurance Building,
87, M.G. Road, Fort,
Mumbai – 1.
2. The Estate Officer,
The New India Assurance Co. Ltd.,
having address at The New India
Assurance Building, 4th Floor,
87, M.G. Road, Fort,
Mumbai – 400 001. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL
Dated : 20th October,2020
(C.R.No.19)
Advocate Mr.N.B. Bhadang i/b. Cyril Amarchand Mangaldas for
Appellant.
Advocate Mr.V.Y. Sangalikar for Respondents.
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O R A L J U D G M E N T
This appeal has been preferred against the order passed by
the Estate Officer on 15th February,2019 under Section 5 and 7 of the
Public Premises (Eviction of Unauthorized Occupants) Act,1971 (for
short “The Public Premises Act) whereby the Appellant was directed to
vacate the premises admeasuring 2400 sq.ft. at 10th floor, New India
Centre, 17, Cooperage Road, Mumbai-39 (hereinafter referred to as the
‘subject premises’) within 15 days and to pay a sum of Rs.3,21,43,440/-
towards damages alongwith 6% p.a. simple interest.
2 The facts material for disposal of this appeal are as under:
The Appellant and Respondent No.1 entered into a Lease
Agreement dated 11th January,1974 whereby tenancy for a period of ten
years was created with effect from 17th September,1973 in respect of 3rd
floor premises of the subject building. Subsequently, by consent of the
Appellant, Respondent No.1 and another occupant M/s.Precision
Fastners Ltd., of 3rd floor premises exchanged with the premises on 10th
floor i.e. subject premises on 28th March,1974.
3 After expiry of the lease in the year 1984, the Appellant
continued occupation of the premises by paying rent and the Appellant
was also allowed to use the subject premises with its associate company
M/s.South India Viscose Ltd. Thereafter, the Respondent No.1 issued
termination notices on 9th February,2001, 18th February,2002 and 4th
February,2009. However, they were not acted upon in the sense that
subsequent thereto, no proceedings under the Public Premises Act were
initiated. Finally, on 30th May,2013 a termination notice was issued
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seeking possession of the premises and on 16th March,2015 a composite
application for eviction and damages came to be filed on the basis of
final notice. The Estate Officer after going through the material on
record and after hearing both the parties passed the aforesaid order.
4 Heard learned counsel for the parties.
5 The principle contention of Mr.Bhadang, learned counsel
for the Appellant, is that the Estate Officer ought not to have
entertained the proceeding since the same is barred by law of limitation
inasmuch as the first notice was issued in the year 2001 whereas the
proceedings were initiated in the year 2015 and that Respondent No.1
has failed to make out any ground for eviction of Appellant and as such
the invocation of the Public Premises Act against the Appellant was
wholly arbitrary and not bona-fide.
6 Per contra, it is contended by the learned counsel for
Respondent No.1 Mr.Sangalikar that the first three termination notices
have not at all been acted upon and the same tantamounts to waiver.
The cause of action as is borne out from the application as well as the
evidence is the final notice dated 30th May,2013 and thus, the question
of limitation does not at all arise. He also submits that in any case, the
provisions of Limitation Act are not applicable to the proceedings under
the Public Premises Act.
7 As regards the other contentions, it is submitted that there
is more than sufficient material that has been brought on record to
substantiate the bona-fide need of the Respondent No.1 in respect of
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the subject premises. There has been sufficient material on record to
show that the business of Respondent No.1 is growing and the official
of Respondent No.1 could not be provided with accommodation. There
has been material on record to show that after losing the protection
under the Rent Act, Respondent No.1 was required to vacate several
premises and thus, it is frivolous to contend that action of Respondent
No.1 is arbitrary.
8 In the aforesaid circumstances, following points arise for
my consideration and my findings thereon for the reasons therefor are
as under:
POINTS FINDINGS
1) Whether the proceedings before
the Estate Officer were barred ..In the negative
by limitation?
2) Whether the action of Respondent
No.1 is arbitrary and not bona-fide? ..In the negative
3) Whether the Appellant is in
unauthorized occupation of the ..In the affirmative
subject premises?
4) Whether the quantification
of damages is just, proper and ..In the affirmative
legal?
5) What order? ..As per final order
R E A S O N S
9
Point No.1: In order to appreciate the aspect of limitation, it is
necessary to consider the relevant provisions of the Limitation Act.
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Section 27 of the Limitation Act reads thus;
“Extinguishment of right to property- At the determination of
the period hereby limited to any person for instituting a suit
for possession of any property, his right to such property shall
be extinguished.”
Whereas, Article 67 of Limitation Act reads thus;
Description of suit Period of limitation Time from which period
begins to run
By a landlord to
recover possession
from a tenant
Twelve years When the tenancy is
determined.
10 Although, from the aforesaid provisions it is apparent that a
suit for ejectment by landlord against the tenant has to be filed within a
period of 12 years from the date of termination of tenancy, it is
necessary to consider as to whether the provisions of Limitation Act
would apply to the proceedings before the Estate Officer under the
Public Premises Act and if the said answer is in the affirmative, the
impact of the provisions to the present proceedings.
11 It is contended by the learned counsel for Respondent No.1
that considering the scheme of Limitation Act, the said legislation would
apply only to the ‘Court’ and the Estate Officer by no stretch of
imagination, dealing with proceedings under the P.P. Act can be termed
as ‘court’.
12 He placed reliance on the judgment of the Hon’ble
Supreme Court in the case of
Nityanand M. Joshi and another V/s.
The Life Insurance Corporation of India and others reported in AIR
1970 Supreme Court 209. It was held that the Labour Court was not a
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court for the purposes of the Limitation Act.
13 Even as regards damages is concerned, reliance is placed on
the judgment of the Hon’ble Supreme Court in the case of
M/s.
Hindustan Times Ltd. V/s. Union of India and others reported in AIR
1998 Supreme Court 688, wherein it has been held that when the
amounts in question is as and by way of recovery, the recovery is not
way of suit Limitation Act would not curtail initiation of proceedings.
14 The Hon'ble Supreme Court in the case of
Sakuru V/s.
Tanaji reported in (1985)3 Supreme Court Cases 590 has also held that
the Limitation Act applies only to the court and not to the quasi judicial
tribunals or executive authorities.
15 The Hon’ble Bombay High Court in the case of
M/s.CAPCO
Private Ltd. V/s. Life Insurance Corporation of India & anr. in Writ
Petition no.1362 of 2001 decided on 25th September,2002 has held that
in the absence of any provision under the Public Premises Act, disabling
the LIC from executing the order of eviction after 12 years solely on the
basis of Article 136. It could not be thwarted.
16 Thereafter, he also placed reliance on the judgment of the
Hon’ble Bombay High Court in the case of
Saurashtra Cement Limited
V/s. National Aviation Co. of India Ltd. & anr. in Writ Petition No.8312
of 2010 decided on 23rd July,2012. It has observed that Limitation Act
would not be applicable to the proceedings under the Public Premises
Act.
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17 On the contrary, learned counsel for the Appellant by
placing reliance on the judgment of the Hon’ble Supreme Court in the
case of
Virinder Kumar Satyawadi V/s. State of Punjab reported in
(1955) 2 SCR 1013 has contended that what distinguishes a court from
quasi judicial tribunal is that it is charged with a duty to decide disputes
in a judicial manner and declare the rights of the parties in a definitive
judgment. It has such authority and all the trappings of the ‘court’ and
thus, the Estate Officer is a ‘court’ for the purposes of the Limitation Act.
18 The learned counsel for the Appellant has also placed
reliance on the judgment of the Hon’ble Supreme Court in the case of
New India Assurance Ltd. V/s. Nulsi Wadia reported in (2008) 3 SCC
279 wherein the Hon’ble Supreme Court has enumerated modalities of
the proceedings before the Estate Officer under the Act and it has been
contended that the same tantamount to the court.
19 Reliance has also been placed in the case of Hon’ble
Bombay High Court in
Edward V/s. J.R. Aryan reported in (2016)3
AIR Bom.309 wherein it has been observed that the Competent
Authority under the Airports Authority of India Act is entitled to decide
issues of title and adverse possession and thus, it is contended that even
the Estate Officer is vested with similar jurisdiction. It is further more
contended that the Civil Court Jurisdiction is also barred in the cases
where the Estate Officer acting under the Act and the Estate Officer is
competent to execute and give his effective orders.
20 Without prejudice to the aforesaid judgments, the learned
counsel for the Appellant has relied upon following judgments:
Kalu Ram V/s. NCT of Delhi (1976) 3 SCC 407 wherein it has been
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held that the Limitation Act, 1963 is applicable to proceedings before the
Estate Officer under the said Act. The Delhi High Court in
G.R. Gupta V/s.
Lok Sabha Secretarial in LPA 370 of 2013 order dated 29th November 2013;
Calcutta High Court in
Automobile Association of Eastern India V/s. Board of
Trustees of Port of Kolkata in W.P. No. 16552 of 2006 order dated 11th June
2008; and, the High Court of Madhya Pradesh in
Lakhanlal V/s. Union of
India 2010 (2) MPLJ426 have also followed the judgment in
Kalu Ram
(Supra) and held Limitation Act, 1963 to be applicable to proceedings before
the Estate Officer to contend that Limitation Act is applicable to the
proceedings under the Act.
21 In the proceedings at hand, considering the factual matrix
of the matter, it is necessary to ascertain as to whether the same are
barred by limitation. Assuming for the sake of arguments that
Limitation Act is applicable, it would be apposite to refer Section 113 of
the Transfer of Property Act alongwith its illustration. The same reads
thus;
“Waiver of notice to quit. - A notice given under section
111, clause (h), is waived, with the express or implied
consent of the person to whom it is given, by any act on
the part of the person giving it showing an intention to
treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the
property leased. The notice expires. B tenders and A
accepts, rent which has become due in respect of the
property since the expiration of the notice. The notice
is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the
property leased. The notice expires, and B remains in
possession. A gives to B as lessee a second notice to
quit. The first notice is waived.”
22 It we consider both the illustrations whereby the purport of
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Section 113 is sought to be clarified, it could be amply clear that the
notice to quit can be considered to be waived in the eventualities
specified therein and the consent in this regard could be expressed or
implied.
23 In the present case, it is not in dispute that although the
four notices were issued, no action was taken pursuant to the first three
notices and the Respondent No.1 continued accepting the rent that was
paid by the Appellant during the said period. Moreover, if we read the
application and affidavit of evidence filed by the Respondent No.1
before the Estate Officer, the cause of action shown is merely the final
notice and not the earlier notices.
24 The learned counsel for the Appellant placed reliance on
the judgment of the Hon’ble Supreme Court in the case of
Sardari Lal
Vihwar Nath V/s. Preetham Singh reported in AIR 1978 SC 1518
wherein it was held that mere payment of acceptance of rent would not
amount to waiver of notice. Similar view is expressed by the Hon’ble
Delhi High Court in the case of
Ram Pistons & Rings Ltd. V/s.
Dr.Banwari Lal reported in 1998 SCC OnLine Del.267.
25 However, if we closely consider both the judgments i.e. in
the case of
Sardari Lal Vihwar Nath and in the case of
Ram Pistons &
Rings Ltd., it would be clear that the observations made therein are
totally in a different context wherein the landlord are asserting the
claim to justify ejectment on the basis of a prior notice subsequent to
which rents were continued to be paid, albeit without issuing a fresh
notice, ejectment proceedings were initiated. However, the same is not
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at all the case in the present matter and as such reliance on these
observations are wholly misplaced. Furthermore, if this interpretation
is accepted in the present proceedings, it would eventually mean that
having issued the earlier notices, the Respondent No.1 would never be
able to claim back the possession of subject premises at any point of
time and this would frustrate the very purpose of the act.
26 Considering all the aforesaid aspects, even assuming for the
sake of arguments that Limitation Act may be applicable to the present
situation, it is more than amply clear that the same could not accrue
any benefit to the Appellant and the said objection is wholly frivolous.
27
Point nos.2 and 3: First of all, it needs to be clarified that
the present proceedings are not under any Rent Control legislation that
any grounds specified therein are to be proved before the Estate Officer.
What is required to be shown is that the occupant of the public premises
is in unauthorized occupation of the premises.
28 The tenancy of the Appellant is based on a Lease Deed.
The period of lease has expired by efflux of time. Quit notice has been
duly served on the Appellant and only thereafter upon valid termination
of the tenancy, the proceedings were initiated. If that be so, all these
statutory requirements that are precursor for initiation of such
proceeding have been followed and then if it is contended by the
Appellant that the same are arbitrary or not bona-fide, heavy burden in
that regard would be cast upon on the Appellant. However, there is
nothing on record to show that such a burden has been discharged by
the Appellant.
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29 The learned counsel for the Appellant has placed reliance
in the case of
Nusli Neville Wadia (cited supra) wherein the Hon’ble
Supreme Court has held that public authorities are required to act bona-
fide in good faith and cannot evict the tenants at whim. In the present
case, it has been brought on record by Respondent No.1 by placing
material on record that as their business has been substantially
increased over last few years and they are facing serious problem of
shortage of space. It is also brought on record that even for housing the
senior officers of the Respondent No.1, the premises were bona-fide
required. Material is also produced to show that the Respondent No.1
was required to vacate many premises wherein they were tenants after
losing the protection of Rent Control Act. All these aspects have been
brought on record, although as I stated earlier it was for the Appellant
to prove that the action was arbitrary and not bona-fide. Thus,
considering the said aspect, it cannot be at all said that the action is
arbitrary and not bona-fide especially vis-a-vis the Appellant in the
present case. Thus, it is apparent that the Appellant continues in
unauthorized occupation of the premises.
30
Point no.4: The claim for damages is based by the
Respondent No.1 on the basis of valuation of an expert Mr.Kejriwal. He
was examined by the Appellant. However, during the cross-
examination, nothing was brought on record so as to discredit this
witness. The damages of Rs.4,56,000/- p.m. is awarded on the basis of
report and evidence of the valuer. Infact even, as per the valuer of the
Appellant, damages come to Rs.3,97,584/- p.m. Thus, on this aspect as
well, I do not find any infirmity in the impugned orders warranting any
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interference.
31 Hence, I answer the points accordingly and pass the
following order:
O R D E R
Misc.Appeal No.99/2019 stands dismissed.
20/10/2020 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 20/10/2020
Transcribed on : 20/10/2020
Signed by HHJ on : 20/10/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 21/10/2020 (At )
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 20th October,2020
Order signed by P.O. on 20th October,2020
Order uploaded on 21st October,2020
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