Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.79.18
Received on : 20/02/2018
Registered on : 15/03/2018
Decided on : 09/08/2019
Duration : Y M D
01 04 25
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.79 of 2018
1) M/s.B.V. Jewels
having its office at plot
no.55, SEEPZSEZ,
Andheri(W), Mumbai96
2) Suken Mehta
M/s.B.V. Jewels, having
his address at A28,
Sterling Apartments, 38,
Pedder Road, Mumbai26 ..Appellants
V/s.
1) SEEPZ Special Economic Zone
having its head office at
Andheri(W), Mumbai96
2) The Estate Manager,
SEEPZSEZ Authority
having its head office at
Ministry of Commerce and
Industry, Andheri(E),
Mumbai96 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 9th August,2019
(C.R.No.19)
Advocate Mr.Cyrus Bharucha i/b. H.K. Law Associates for appellants.
Advocate Mr.S.R. Rajguru a/w. advocate Mr.M.S. Bharadwaj for
respondents.
-- 1 of 12 --
2 Misc.app.79.18
O R A L J U D G M E N T
Being aggrieved by the order of eviction passed by the Estate
Manager, SEEPZSEZ Authority under subSection (1) of Section 5 of The
Public Premises (Eviction of Unauthorized Occupants)Act, 1971 (“the P.P.
Act” for short) on 6th February,2018 in respect of M/s.B.V. Jewels, 3rd and
4th floor, Plot No.55, SEEPZSEZ, Andheri(E), Mumbai96 (“schedule
premises” for short), the appellants have preferred the present appeal.
2 Brief Facts: Appellant no.1 is a registered partnership firm
and is engaged in manufacturing of gem and gold jewellery. The
respondent no.2 is a partner of appellant. Respondent no.1 is the Santa
Cruz Electronics Export Processing Zone as defined under Section 2(za) of
the Special Economic Zone Act,2005 (“SEZ Act” for short).
3 A letter of approval (LOA) (Exh.K) bearing reference
no.NUS:APL:GJ:11:95 dated 3rd July,1995 was issued in favour of
appellant no.1 for five years i.e. 19951996 to 19992000. According to
appellants, another partnership firm owned by the same partners as those
of appellant no.1 (except one partner) called B.V. Stars was constituted on
1st January,1993 and sublease in respect of the premises was executed
with the applicant no.1's sister concern, B.V. Stars. Under the sublease,
B.V. Stars was granted a lease of premises for a period of 30 years.
4 The appellants next contend that LOA expired on 31st
-- 2 of 12 --
3 Misc.app.79.18
March,2000. However, it continued its business as usual and met its
export obligations. Appellant no.1 also applied in the format prescribed by
the respondent for renewal of LOA by its letters dated 8th July,2004
(Exh.U) and 23rd June,2006 (Exh.AA). The follow up letters viz. 12th
June,2013 (Exh.FF), 22nd May,2017 (Exh.KK) and 20th July,2017 (Exh.LL)
seeking renewal of its LOA were also issued. However, the respondents did
not grant applications/letters for renewal nor rejected the same by written
order.
5 The appellants allege that on 15th April,2015, the respondents
issued a show cause notice (Exh.GG) to appellant no.1 calling upon it to
show cause as to why it should not be evicted from the schedule premises.
Then on 6th February,2018 the respondents passed the impugned order
(Exh.A). Hence, the appeal.
6 Mr. Cyrus Bharucha, learned counsel for appellants, submitted
that the Letter of Approval (LOA) expired on 31st March,2002 and despite
various correspondences for renewal of LOA, the respondents did not pass
any order on the letters/applications made by appellant no.1 and this was
purposely done so that the appellant no.1 did not have written order
rejecting its applications from which it could file an appeal under the
provisions of SEZ Act.
7 The learned counsel then took me through the relevant
documents in order to buttress his submissions. Similarly, according to
-- 3 of 12 --
4 Misc.app.79.18
learned counsel, the appellant no.1 was never heard in respect of the
alleged nonpayment of custom duty before the cancellation of LOA. Thus,
the whole approach adopted by respondents is completely unjustified
resulting into illegal cancellation of sublease. The learned counsel placed
reliance in Union of India V/s. J.V. Gokal & Co. Pvt. Ltd., 2017 SCC
OnLine Ker 28334 and Syndicate Bank V/s. Ramachandran Pillai and
others (2011) 15 Supreme Court Cases 398.
8 Mr.S.R. Rajguru, learned counsel for respondents, on the other
hand, supported the impugned order passed by Estate Manager. The
learned counsel also took me through the original proceedings and pointed
out how the impugned order passed by the Estate Manager is legal and
correct. According to learned counsel, there being no merit in the appeal,
the same is liable to be dismissed. The learned counsel also placed
reliance in Ashoka Marketing Ltd. and another V/s. Punjab National
Bank and others, AIR 1991 Supreme Court 855 and Syndicate Bank
V/s. Ramachandran Pillai and others (2011) 15 Supreme Court Cases
398.
9 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
1) Whether the impugned order
dated 6th February,2018
passed by the Estate Manager ..In the affirmative
is legal, just and proper?
-- 4 of 12 --
5 Misc.app.79.18
2) What order? ..As per final order.
R E A S O N S
Point No.1:
10 The learned counsel for appellants has squarely put the blame
at the door of respondents and while doing so, he vociferously tried to
bring home twofold submissions. Firstly, inspite of several
communications and fervent plea raised by the appellant to renew the
letter of approval, respondents deliberately sat dispassionately on those
correspondences, did not take any meaningful action and rather
engineered a situation whereby the appellants could be branded as an
“unauthorised occupant”. Secondly, while doing so, the respondents
committed not only flagrant breach of the guidelines to prevent arbitrary
use of powers to evict genuine tenants from public premises but threw all
the norms incorporated in the guidelines to the winds. The quintessence
is, therefore, that the termination of sublease was unjustified and illegal
and, therefore, the impugned order needs to be set aside at once.
11 Countering the above submissions, the stand taken by the
respondents is that the grounds of eviction were not holding a valid LOA
after 31st March,2002 and a valid sublease agreement since 18 th
March,2013. These two aspects read together thus violated the provisions
prescribed under Rule 11(5) and Rule 19 of SEZ Rules,2006 (“SEZ Rules”
for short). In addition, there were various statutory dues under the
Customs Act and Government dues.
-- 5 of 12 --
6 Misc.app.79.18
12 In the whole scenario, what should engage attention is
whether infact the correspondences entreating the respondent to renew
LOA was meaningful and justified. Having regard to the rules prescribed
by SEZ Rules, so also the nature and significant of said guidelines which
the appellants are banking upon the stand taken by the appellants needs to
be appreciated visavis the facts and circumstances on record.
13 There is no dispute to the fact that a letter of approval bearing
reference No. NUS:APL:GJ:11:95 dated 3rd July,1995 was issued in favour
of appellant no.1 for a period of five years in accordance with Rule 19 of
SEZ Rules. It is also not disputed that a sublease also came to be executed
between B.V. Stars, sister concern of appellant no.1 and respondents on
14th September,1993. In the words of appellants, the LOA issued in their
favour elapsed on 31st March,2000.
14 It is pertinent to note here that the appellants for the first time
by their letter dated 8th July,2004 requested respondent no.1 to grant them
LOA and thereafter repeated their requests by series of correspondences
(Exhs.AA, FF, KK and LL). Apparently, the request came to be made after
more than four years of expiration of letter of approval dated 3rd July,1995.
15 Section 2(g) of the P.P. Act defines “unauthorised Occupation”
as under:
“unathorised occupation”, in relation to any
public premises, means the occupation by any person of
the public premises without authority for such occupation,
-- 6 of 12 --
7 Misc.app.79.18
and includes the continuance in occupation by any person
of the public premises after the authority (whether by way
of grant or any other mode of transfer) under which he
was allowed to occupy the premises, has expired or has
been determined for any reason whatsoever.”
16 From the above definition it is clear that a person becomes
unauthorised occupant if the authority under which he was allowed to
occupy the premises has expired or has been determined for any reason
whatsoever. In the case in hand, admittedly, the validity of letter of
approval dated 3rd July,1995, expired on 31st March,2000. That is to say,
there was no valid LOA after 31st March,2000. Neither appellant got the
said LOA extended before its expiration nor immediately moved the
respondents within reasonable time to get the same extended in
accordance with SEZ Rules.
17 The learned counsel for appellants have heavily placed
reliance in the judgment given in Union of India V/s. J.V. Gokal & Co.
Pvt. Ltd. (Supra). In this case, the letter of approval (LOA) was valid for a
period of five years and was then liable to be renewed upon an application
for renewal. There was no dispute that during the validity of the letter of
approval, application for renewal was filed. In this factual backdrop, the
Hon'ble High Court (Kerala) held that before the Development
Commissioner considers the question of refusal to renew the letter of
approval, she was required to issue notice to the parties giving out grounds
and seeking a response. Thus, striking future in respect of renewal of letter
of approval in the said case was that the application for LOA was moved
-- 7 of 12 --
8 Misc.app.79.18
during the validity of the letter of approval. Whereas it is not so in the case
in hand.
18 Reverting backs to the case in hand, at the cost of repetition,
let me place it on record straightway that the appellants were not at all
alive to expirational aspect of LOA inasmuch as it took them for more than
two years to beseech respondents to renew the LOA. This apathy is not
justifiable by any means. In this regard, SubRules (6A)(1)(2) of Rule 19
of SEZ Rules are worth quoting.
“(6A)(1) The Units which intend to renew the validity
of Letter of Approval shall submit, before two months from
the date of expiry of the Letter of Approval, the completed
application in Form F1 along with requisite document, to
the Development Commissioner, duly signed by the
proprietor or managing partner or if it is a company, by the
Managing Director or the Director(s) or any person who has
or have been duly authorised for this purpose by a
resolution of the Board of Approval of Directors of the
Company:
Provided that in case an application is not submitted
before the said period of two months, such application shall
be placed before the Approval Committee and the said
Committee, if it is satisfied that there was sufficient cause
for not filling the same before the said period, may direct
for entertainment of such application.
(2) in case of noncompliance of the procedures
specified in clause (1), the Letter of Approval shall not be
considered for renewal.”
19 By virtue of above Rules, a right is conferred on the units to
get their LOA renewed before two months of the date of expiry of LOA.
-- 8 of 12 --
9 Misc.app.79.18
That period of two months is further extended by another two months in
case units are prevented from doing so because of sufficient and reasonable
cause. The record nowhere shows appellants having availed the benefit of
above Rules. Therefore, the blame, if at all, is to be placed, must be
squarely placed at the door of appellants.
20 During the course of argument, learned counsel submitted that
the respondents have also failed to follow the procedure for renewal of
LOA as stipulated in Rule 19 (6B) of the SEZ Rules.
21 The said Rule provides number of criteria to be taken into
consideration by the concerned authority before renewal of letter of
approval is granted. It must be reminded at once that the said Rule must
be read in conjunction with Rule (6A)(1)(2) of Rule 19 of SEZ Rules and
not in isolation. Therefore, it is wrong on the part of learned counsel to
canvass before me that there was failure on the part of respondents to
follow Rule 19(6B) of SEZ Rules.
22 This takes me to equally important facet viz. guidelines issued
by Central Government. The Central Government has issued guidelines to
prevent arbitrary use of powers to evict genuine tenants from public
premises under the control of public sector undertaking/financial
institutions vide Resolution no.21013/1/2000Pol.1 dated 30 th May,2002
(Gazetted on 8th June,2000). The Hon'ble Apex Court had an occasion to
interpret these guidelines in Syndicate Bank V/s. Ramachandran Pillai
-- 9 of 12 --
10 Misc.app.79.18
and others (Supra). The observations of the Hon'ble Apex Court at
paragraph nos.6 and 7 are quite relevant for our purpose which are as
under:
“6. If any executive instructions are to have the force
of statutory rules, it must be shown that they were issued
either under the authority concerned on the Central
Government or a State Government or other authority by
some statute or the Constitution. Guidelines or executive
instructions which are not statutory in character, are not
“laws”, and compliance therewith cannot be enforced
through courts. Even if there has been any violation or
breach of such nonstatutory guidelines, it will not confer
any right on any member of the public, to seek a direction
in a court of law, for compliance with such guidelines. An
order validly made in accordance with a statute (as in this
case the Public Premises Act), cannot be interfered with,
even if there has been any transgression of any guidelines,
except where it is arbitrary or mala fide or in violation of
any statutory provision. These are wellsettled principles.
7. As the guidelines relied upon in this case were
snot issued in exercise of any statutory power under the
Public Premises Act or any other statute, even if there was
violation or noncompliance with the aforesaid guidelines
by the appellant, relief to the appellant could not be
denied by relying upon the guidelines. To do so would
amount to reading the guidelines into the statute, which is
impermissible. The only “remedy” of any person
complaining of noncompliance with such guidelines, is to
bring such violation to the notice of a higher authority.
We therefore hold that the enforcement of any right or
exercise of any power by the appellant, under the Public
Premises Act cannot be set at naught by relying upon or
referring to the guidelines issued by the Central
Government.”
-- 10 of 12 --
11 Misc.app.79.18
23 Keeping in mind the above interpretation of Hon'ble Apex
Court, what is immediately obvious from the record is that the procedure
followed by respondents in no way can be termed as arbitrary or malafide.
There was abysmal failure on the part of appellants to follow SEZ Rules in
letter and spirit. In the circumstances, the utility and applicability of the
guidelines could not have gone into. Therefore, the guidelines in the facts
and circumstances of the present case do not further in any manner the
cause of appellants.
24 In view of above discussion, I hold that as there was no
renewal of LOA, the learned Estate Manager rightly concluded that the
appellants were unauthorised occupants.
25 In view of above, I pass the following order:
O R D E R
Misc.Appeal No.79/18 stands dismissed.
R & P be sent back.
09/08/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 09/08/2019
Transcribed on : 09/08/2019
Signed by HHJ on : 09/08/2019
-- 11 of 12 --
12 Misc.app.79.18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 09/08/2019 (5.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 9th August,2019
Order signed by P.O. on 9th August,2019
Order uploaded on 9th August,,2019
-- 12 of 12 --