Final Order 1

Order Details: Copy of Judgment
Pdf Text: : 1 : JUDGMENT IN MISC.APPEAL NO.141/2019
MHCC010046222019 Received on :: 25.04.2019
Registered on :: 27.06.2019
Decided on :: 05.12.2022
Duration :: Y03:M07:D10:
Exhibit ::
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.141 OF 2019
1. Shri Sharadchandra Rungta, (Deleted)
Age: 81 Years, Occ.: Retired,
1(a) Shri Ashutosh Rungta,
R/at: First Floor, Building No.123B,
Rungta Estate, Vitthalbhai Patel Road,
Mumbai – 400 004.
2. Smt.Vimladevi Rungta, (Deleted)
Age: 71 years, Occ.:Housewife,
3. Smt.Kumudlata Rungta
Age: 78 years, Occ.:Housewife,
4. Shri Sudhanshu Rungta,
Age: 52 years, Occ.: Business,
Appellant Nos.1,2,3&4 are
R/at: Second Floor, Building No.123B,
Rungta Estate, Vitthalbhai Patel Road,
Mumbai – 400 004. ... Appellants
Versus
1. The Government of India,
through the Assistant Post Master
General, Mumbai Region,
Office of the Post Master General,
Mumbai Region, Mumbai400 001.
2. The Estate Officer,
Office of Post Master General,
Mumbai Region, Mumbai400 001. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 5th DECEMBER, 2022
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Ld.Adv.Ashwin Shete i/b M/s.Jayakar & Partners for appellants
Ld.Adv.R.P.Ojha for Respondents.
ORAL JUDGMENT
1. By the present appeal, the appellants are challenging the order of
eviction and damages caused by the Ld. Estate Officer before the
proceedings relating to 2nd floor of building No.123–B by the
impugned order dated 01/04/2019.
2. It is contended that appellant Nos.1, 1(a) to 4 are members of
one family and late appellant No.1 and appellant no.3 are
husband and wife and appellant no.4 is thier son. The late
appellant no.2 is wife late Subhashchandra Rungta, the son of
original tenants. The building was constructed in the year 1906
and the present landlords acquired title only on 31/03/1967. The
entire 1st and 2nd floors in exclusive possession of the said family.
The appellant’s predecessor in title were in exclusive use of both
1st and 2nd floor premises. The rent was always paid by
Shivprasad and thereafter by his children and grandchildren. On
28/12/1967, notice for termination of pendency of the said 2nd
floor was issued against Jaidevi Rungta. It was challenged and
eviction order was passed on 29/11/1969. It was carried in
appeal and appeal was dismissed and further carried before the
Hon’ble High Court and the order of eviction was set aside by
order dated 02/02/1979. By letter dated 15th May 1982, the
termination notice dated 28/12/1967 was revoked and cancelled.
Shivprasad expired in the year 2001 and appellants have
succeeded to the tenancy and they have been paying the rent. On
06/04/1987 fresh show cause notice was issued. The proceedings
went on before the Learned Estate Officer and order of eviction
was passed on 29/06/1987 and it was challenged before the
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learned Predecessor of this Court and the order of eviction was
set aside by order dated 31/08/1988. The proceedings were
challenged. Fresh notices were issued on 10th of October 1990
Appellant attended the hearing and filed their detail say on 21st
September 2017 and contended that the appellant and the
predecessor in title were in occupation of 1st and 2nd floor
premises and before acquisition by the Department of Post. The
electricity bills from 1997 to 2019 are paid by the Shivprasad etc.
The Ration Card, correspondence assessment of Income Tax Act
notices, Passports are of the same address. The proceedings were
conducted in summary manner and no documents are permitted
to be produced. Second hearing was conducted on 30/01/2019
wherein it was contended that the premises were required for
expanding the services of Indian Post. The appellant No.1 filed
his written submissions on 30/01/2019 and the matter was
adjourned on 27/02/2019. On 27/02/2019 additional written
submissions of the appellants were accepted. On 11th of March
2019 there was fresh hearing and no further material advance
arguments were made. Various judgments were cited by the
appellants by way of additional written submissions dated 11th of
March 2019 and thereafter the impugned order was passed on
01/04/2019. Hence, the present appeal.
3. It was vehemently contended that the appellants are in
occupation of the premises as tenants is much prior to the
purchase of the premises by the Department of Post and
considering the same the provisions of the Public Premises
(Eviction of Unauthorized Occupation) Act is not applicable and
the authority has no jurisdiction to conduct the proceedings. It is
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further contended that there is no evidence led by the
Department of Post and the Ld. estate officer has considered the
submissions without any evidence on record and no opportunity
was given. Notices were already revoked. In view of the
circumstances in the facts of the case and considering the
grounds raised, the order of the learned Estate officer is required
to be set aside.
4. Heard Ld. counsel for the Department of Post/ Respondents and
he vehemently submitted that the appellants are unauthorised
occupants. Their is no pleadings in support of the contentions
raised before the concerned authority. He further pointed out that
Shivprasad had contested the proceedings all along and the
present appellants cannot now contended that they were tenants
in occupants of the premises. In such circumstances there was no
evidence to show occupancy and hence the learned Estate Officer
has rightly passed the eviction order. Considering the same he
submitted that the appeal be dismissed.
5. Perused the record and proceedings, the impugned order, the
appeal memo and considered the submissions. From the above
record, following points arise for my consideration and I answer
the same as under for the reasons stated hereinafter;
Sr.
Nos POINTS FINDINGS
1 Whether the appellants are
unauthorised occupants?
:: In the
Negative
2 Whether the impugned order requires
an interference?
:: In the
Affirmative
3 What order? :: As per final order
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REASONS
As to point No.1:
6. At the outset, it is required to be clarified that there are set of
appeals before me. The present appeal deals with the 2nd floor
premises and the other appeal deals with the 1st floor premises.
As regards the contentions of tenancy and the rights of the
parties, they are the same in both the matters. There is a small
but relevant difference in both the matters. In the other matter, it
is contended that D.M.Seksaria was the tenant. In this matter
Jayidevi is said to be the tenant.
7. If one considers the entire evidence on record, it is seen that
Jayidevi is admittedly the tenant and was admittedly the tenant
of the premises prior to purchase by the Postal department. In
such circumstances, one is to consider the aspect of applicability
of judgement of Suhas Pophale .
8. The issue of applicability of the judgment of Suhas Pophale V/s.
Oriental Insurance Company Ltd. and its Estate Officer,
(2014)4 SCC 657 or Ashoka Marketing Ltd. and Anr. V/s.
Punjab National Bank and Ors., AIR 1991 SC 855 has been
considered by the Hon'ble Supreme Court of India, in the
judgment of Suhas Pophale itself and also by Division bench of
the Hon'ble High Court of Bombay in the case of Dr.Preeti Bhatt
V/s. Central Bank of India, Writ Petition No.290 of 2012. It
was pointed out that there are judgments of M/s. Crawford
Bayley and Co. & Ors. V/s. Union of India & Ors, 2003(3) ALL
MR 857, M/s. Jain Ink Manufacturing Company V/s. Life
Insurance Corporation of India and Another, (1980)4
Supreme Court Cases 435, Sudha Hari Pophale and Others
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V/s. The Oriental Insurance Company Ltd. And Others,
Review Petition NO.149 of 2014 in Writ Petition No.5522 of
2013 decided on 15.01.2015, KAISERIHIND Pvt.Ltd. And
Another V/s. National Textile Corporation (Maharashtra
North) Ltd. And others 2002)8 Supreme Court Cases 182 and
applying the principles in Civil Appeal Nos.1094110942 of
2013 of the New India Assurance Company Ltd. V/s. Hilli
Multipurpose Cold Storage Pvt.Ltd. dated 4th of December
2015, the constitutional bench should be considered and
provisions of Rent Act should not be made applicable. It was
contended that the Hon'ble Supreme Court in the case of Life
Insurance Corporation of India V/s. VITA Private Limited &
Anr. Petition for Special Leave to Appeal(C) No.35859/2014
has referred the matter of Suhas Pophale to larger bench.
9. In my view, the aspect of judgments being contrary, of Suhas
Pophale and Asoka Marketing does not arise at all . Both in the
case of Suhas Pophale as well as Dr.Preeti Bhatt, the Hon'ble
Supreme Court of India and the Hon'ble High Court of Bombay
have held that no contrary views taken. Thus, this Court cannot
state so. In Case of VITA in my humble opinion, the contention of
contrary views was taken and for its consideration, matter was
proposed to be taken for such aspect and thus the aspect as to it
is not contrary still is binding n this Court. Law of precedents as
applicable to the trial courts relating to judgments of the superior
courts is that, larger bench's judgment, would be followed only if
the earlier larger bench judgment has not been considered in the
latter Judgment. If after consideration of Larger bench Judgment,
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a view is taken, said view shall be binding , if the distinguishable
characteristics are made out.
10. The judgment of Suhas Pophale considers the judgment of
Ashoka Marketing and in fact affirms the law laid down in the
judgment of Ashoka Marketing. Considering the same, there is
no diversion. In the judgment of Sudha Hari Pophale And Ors
vs The Oriental Insurance Co. Ltd in Review Petition No.149
Of 2014 In Writ Petition No.5552 Of 2013 dated on 15th
January 2015, the Hon'ble High Court of Bombay has held
that....
"however mere nonapplication of the doctrine of
merger would not entitle the courts lower in
hierarchy to ignore any opinion expressed by the
Apex Court, either on the point of fact of law in the
order rejecting the SLP….yet to express any opinion
in conflict with or in departure from the view taken
by the Apex Court in relation to any fact of law
would be subversive of judicial discipline and an
affront to the order of the Apex Court".
This principle is squarely applicable to this court. The Hon'ble
Supreme Court of India and the Hon'ble High Court of Bombay
have held that the judgment of Ashoka Marketing and Suhas
Pophale are not contradictory and it is binding on this court.
11. In such circumstances and judicial proprietary as well as
judicial discipline, only the applicability of Law laid down in
Ashoka Marketing and Suhas Pophale to the facts of present
case are required to be considered. Ashoka lays down general
principle that the provisions of Public Premises Act will supersede
the provisions of the Rent Control Act. Suhas Pophale's
judgment also upholds the same principle. But it interprets
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further with regard to the persons who were protected under the
Rent Act prior to premises becoming “public premises”. Thus
Asoka deals with qua “premises” and Suhas Deals with qua
“tenant”. Moreover, the Division Bench Judgement of the High
Court if Bombay in the Case of Preeti Bhatt considers both these
judgements and hence it also is a binding precedent on this court.
12. The Public Premises Act is prospective in nature and
considering this aspect it has held that if the tenant is protected
under rent legislation earlier, the protection continues. Thus, one
has to consider if this principle is applicable to the facts of the
present case.
13. Admittedly Jaidevi was the tenant of the said premises
prior to the enforcement of the Act. The alleged termination of
1967 is seen to be revoked by the Department of Posts. Thus, this
reliance by the learned Estate officer alleging then determination
of tenancy of Jaidevi is devoid of merit.
14. In the case of Dr.Preeti Bhatt, the division bench of the
Hon'ble High Court of Bombay has considered the facts therein
that , the tenant's father was admittedly a tenant of the said
premises prior to September 1958 and petitioner's father died in
1997 and petitioner was staying with him in the said premises
and became tenant on her father's death. Thus, these facts are
squarely applicable to the facts of the present case. The law of
succession of tenancy is controlled by the rent control legislation
and it contemplates succession to the family members and not as
per the Hindu Succession Act or the rules of succession. The vast
documents on record filed before the learned Estate Officer
shows that Appellants are staying together as one family and thus
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succession to tenancy rights is established. It is not the case of the
respondents that subsequently they have entered in the said
premises. Much was harped upon the aspect absence of evidence.
The same is inconsequential as there is a statutory transfer of
tenancy under the provisions of the Rent Control Act.
15. Further law is laid down in Dr.Preeti Bhatt is "in view of
what is held in paragraph 64 of the proceedings under the said
Act of 1971 against the tenant are not competent". Same is
squarely applicable to the present case. Late Sitabai was in
occupation and holding the property much prior to 1958 and
same is an admitted fact. There are acknowledgements of
payment of rent for the year 195859 and prior to the
enforcement date of the Public Premises Act. In such
circumstances, it is apparent that the Provisions of Act of 1971
are not applicable and thus the learned Estate Officer has no
jurisdiction to try the present litigation. On this count alone the
entire proceedings are required to be set aside.
16. In order to give finality to the findings to the proceedings, I
shall also consider the other grounds for eviction raised in these
proceedings.
17. In above circumstances the appellants cannot be said to be
under the plain category of “unauthorised occupants” as
categorised in the case of New India Assurance Company Ltd.
V/s. Nusli Neville Wadia & Another (2008)3 Supreme Court
Cases 279. Thus considering these contentions and averments,
one has to consider the category of cases as differentiated in the
case of the Nusli Wadia. It is pointed out that in cases of stark
unauthorised occupants are to be dealt with accordingly and the
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burden lies upon the said person to establish the said fact. In this
case ,it is not the case that no opportunity was given. The record
indicates that the appellants were granted opportunity to show
cause and also presented their arguments. It is seen that the
appellants furnished arguments but they never asked to lead
evidence. But the notices and documents of the Postal authority
overwhelmingly establish the existence of tenancy of Appellants
predecessor and no evidence is required to be led in this regard.
18. There is ground relied by the authority of “ bona fide
requirement.” In this regard nothing has been filed on record or
evidence led or permission granted to the appellants to counter
the said evidence. Thus, there is gross discrepancy in the
procedure adopted by the learned Estate Officer on this count.
On this ground alone, the proceedings would be required to be
set aside and be remanded. Needless to say in view of above
finding of applicability of Suhas Pophale's case, the said
situation will not arise and appeal will have to be dismissed. Even
otherwise, the Department has not led any evidence to establish
the requirement. Considering the judgment of Nusli Wadia the
burden is on the Department to support termination and hence in
absence of pleadings and evidence, findings of bona fide
requirement cannot be sustained. Thus, on this count also the
order is required to be set aside. Thus, I answer point No.1 in
negative.
As to point No.2:
19. The learned Estate Officer has no jurisdiction to proceed
with the matter as the appellants are protected under the
provisions of the Rent Act. The learned Estate Officer has not
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considered the right of occupancy and unauthorised occupancy of
the appellants in proper perspective and the same requires
interference. Consequently, the findings of arrears of rent and
compensation are required to be set aside. Considering the above
aspects, there is no question of further considering the ground of
requirement and hence the additional documents filed are not
required for adjudication of this appeal. Hence, application at
Exhibit 5 is liable to be rejected. Hence, I pass following order.
O R D E R
1. Misc. Appeal No.141 of 2019 is allowed.
2. The impugned order passed by the learned Estate Officer dated
1st April 2019 is herewith set aside.
3. Application at Exhibit 6 is rejected.
4. It is contended that the amount has been deposited in this Court.
Considering the amount of FD and interest be adjusted towards
the arrears of rent and further rent, if any.
5. Record and Proceedings be sent back to Respondent.
05/12/2022 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 05/12/2022
Transcribed on : 06/12/2022
Signed by HHJ on : 21/12/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/12/2022 5.00p.m.. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 05/12/2022
Judgment/order signed by P.O on 21/12/2022
Judgment/order uploaded on 21/12/2022
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