Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc. Appeal 188.18
Received on : 04/06/2018
Registered on : 27/07/2018
Decided on : 04/01/2020
Duration : Y M D
01 05 09
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Misc.Appeal No.188 of 2018
M/s.Reliable Stationary @
Reliable Stationary Mart
A partnership firm, having its
office at ground floor, Union
Cooperative Insurance Building,
23, Sir P.M. Road, Fort,
Mumbai1,
through its partner
Mr.Firoz Dalal ..Appellant
V/s.
1) United India Insurance Company Ltd.,
a Government Company, having
its office at office no.1, Stadium House,
5th floor, Veer Nariman Road,
Churchgate, Mumbai20
2) Estate Officer
having its office at
United India Insurance Company
Ltd., Mumbai Regional Office
no.1, Stadium House, 5th floor,
Veer Nariman Road,
Churchgate, Mumbai20 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 4th January,2020
(C.R.No.19)
-- 1 of 18 --
2 Misc. Appeal 188.18
Advocate Mr. Jayesh Jain for appellant.
Advocate Mr. K.N. Kandekar for respondents.
O R A L J U D G M E N T
Dissatisfied with the order dated 16th April,2018 of eviction
and damages passed by the Estate Officer, under Section 5 and 7 of The
Public Premises (Eviction of Unauthorised Occupants) Act,1971
(hereinafter referred as 'the Act' for short), in Case No.U08 and U08A of
2017, the appellant has preferred this appeal.
2 In short, the case of respondent no.1 before the Estate Officer
was that respondent no.1 a company of Government of India owns a
building known as Union CoOperative Insurance Building, 23, Sir P.M.
Road, Fort, Mumbai. The appellant alongwith one M/s. Bugo Sago
Restaurant occupied the scheduled premises area 340.13 sq.ft. with
mezzanine floor of 177.18 sq.ft. unauthorisedly. The appellant and
M/s.Bugo Sago Restaurant have no privity of contract with the respondent
No.1. Appellant without the permission of the respondent No.1 carried out
additional and alteration in premises. The respondent No.1 is not protected
tenant under the Maharashtra Rent Control Act and had to vacate various
tenanted premises which it had taken on rent. Therefore, the respondent
No.1 is in need of premises.
3 The appellant and M/s.Bugo Sago Restaurant are not tenant
nor they were allowed to use and occupy the premises. M/s. Bugo Sago
-- 2 of 18 --
3 Misc. Appeal 188.18
Restaurant is paying rent of the said premises to the appellant without
permission and consent of the respondent no.1. The respondent No.1, by
notice dated 30th January,2017 terminated the right and authority of the
appellant. The respondent no.1 filed an application before Estate Officer.
The show cause notices dated 31.03.2017 under Sections 4 and 7 of the
Act were issued to the appellant as to why order of eviction and damages
should not be passed.
4 The appellant filed reply dated 19th May, 2017 inter alia
contending that the appellant is a partnership firm and is a tenant of
respondent no.1 since 1928. It is protected tenant under Maharashtra Rent
Control Act. The appellant has not carried out any addition or alteration.
It has not parted with possession of the suit premises with anybody. The
notice dated 31st January,2017 is illegal. The appellant is authorised
occupant of the premises.
5 The Estate Officer after hearing both the parties, passed the
impugned order dated 16th April,2017 directing the appellant to vacate the
premises and pay the damages @ Rs.75,480/ per month from 1 st
March,2017 till recovery of possession. It is a matter of record that
respondent no.1 took the possession of the suit premises on 19th July,
2018.
6 It is submitted on behalf of appellant that the appellant is a
protected tenant under the provisions of Maharashtra Rent Control Act,
-- 3 of 18 --
4 Misc. Appeal 188.18
2003. According to him, the material available on record as well as there
is clear finding which goes to show that the appellant is the tenant of
respondent. M/s.Reliable Stationary Mart established by forefather of the
present partners of the appellant and it is continued till date. The
appellant is in possession of the premises since 1928, i.e. prior to purchase
of the building by the respondent no.1. The appellant was in occupation of
the premises prior to nationalization of respondent no.1 in the year 1971.
According to him, if the premises are being occupied by a tenant prior to
1958 or prior to nationalization of four insurance companies including the
respondent, the occupant is protected under the Rent Act and thus, the
appellant is protected under the Rent Act. To buttress his case, he placed
reliance on Suhas H. Pophale V/s. Oriental Insurance Co. Ltd. and its
Estate Officer, reported in (2014) 4 SCC 657 and case of Dr.Preeti Bhatt
V/s. Central Bank of India reported in (2017)6 MhLJ 330.
7 The learned advocate, for appellant vehemently submitted
that after filing the appeal, the appellant got the documents under Right to
Information Act from Sales Tax Department and Electricity Department
which shows that the appellant is in possession of the premises prior to
1971 and accordingly, he has filed the application Exh.4 under Order 41 of
Rule 27 the Code of Civil Procedure(hereinafter referred to as “CPC”) for
allowing document to be read in evidence. He submitted that the
appellant has not parted with possession of the premises nor made any
additions or alterations. The business of M/s. Bugo Sago Restaurant is
being run by the appellant itself. He further submits that damages have
also not properly calculated by the Estate Officer and lastly, he prayed for
-- 4 of 18 --
5 Misc. Appeal 188.18
setting aside the impugned order.
8 Per contra, learned advocate for the respondent no.1,
vehemently submitted that the appellant has made additions and
alterations in the premises pursuant to which MMC issued notice under
Section 351 of the MMC Act. The appellant has also sublet premises to one
M/s.Bugo Sago Restaurant. He has breached the terms and conditions.
According to him, the respondent no.1 has rightly terminated the tenancy.
He submits that inspite of having ample opportunities no document has
been produced by the appellant before the Estate Officer to show that the
appellant is occupant of the suit premises prior to 1971 or 1958. He
further submits that no reason has been mentioned in the application
(Exh.4) for making out a case for production of additional evidence at
appellate stage.
9 It is also contended on behalf of learned advocate for the
respondent no.1that the fair opportunity was given to the appellant by the
Estate Officer. He submits that Estate Officer after following principles of
natural justice, passed well reasoned order. He further went on submitting
that the ratio laid down in Suhas H. Pophale case and Dr.Preeti Bhatt
case are not applicable to the present case. Hence, sought rejection of the
appeal.
10 Having considered the submissions made by the respective
advocates for the appellant as well as respondent, following points arise for
-- 5 of 18 --
6 Misc. Appeal 188.18
consideration in this appeal and I have given my findings against each of
them for the reasons mentioned hereinafter.
POINTS FINDINGS
1 Whether the appellant is protected
tenant under the provisions of
Maharashtra Rent Control Act, 2003?
..In the Negative
2 Whether the impugned order dtd.
16.04.2018 of eviction is just, proper
and legal?
..In the Affirmative
3 Whether the impugned order dtd.
16.04.2018 of Estate Officer awarding
damages @ Rs.75,480/ p.m. towards
unauthorised occupation is correct?
..In the Negative.
The respondent No.1 is
entitled for damages @
Rs.66,320/ per month.
4 Whether the impugned order dated
16.04.2018 of Estate Officer is just
legal & proper?
..Partly yes
5 What order? ..As per final order
R E A S O N S
Point no.1:
11 Law with regard to applicability of State Rent Act to the public
premises has been criticized by the Hon'ble Apex Court in the case of
Suhas Pophale (supra). In para 64, the Hon'ble Apex Court has held, as
under:
“64...As far as the eviction of unauthorised occupants from public
premises is concerned, undoubtedly it is covered under the Public
Premises Act, but it is so covered from 16.9.1958, or from the
later date when the concerned premises become public premises by
virtue of the concerned premises vesting into a Government
company or a corporation like LIC or the Nationalised Banks or
the General Insurance Companies like the respondent no.1. Thus
-- 6 of 18 --
7 Misc. Appeal 188.18
there are two categories of occupants of these public corporations
who get excluded from the coverage of the Act itself. Firstly, those
who are in occupation since prior to 16.9.1958, i.e. prior to the
Act becoming applicable, are clearly outside the coverage of the
Act. Secondly, those who come in occupation, thereafter, but prior
to the date of the concerned premises belonging to a Government
Corporation or a Company, and are covered under a protective
provision of the State Rent Act, like the appellant herein, also get
excluded. Until such date, the Bombay Rent Act and its successor
Maharashtra Rent Control Act will continue to govern the
relationship between the occupants of such premises on the one
hand, and such government companies and corporations on the
other. Hence, with respect to such occupants it will not be open to
such companies or corporations to issue notices, and to proceed
against such occupants under the Public Premises Act, and such
proceedings will be void and illegal. Similarly, it will be open for
such occupants of these premises to seek declaration of their
status, and other rights such as transmission of the tenancy to the
legal heirs etc. under the Bombay Rent Act or its successor
Maharashtra Rent Control Act, and also to seek protective reliefs
in the nature of injunctions against unjustified actions or orders of
eviction if so passed, by approaching the forum provided under the
State Act which alone will have the jurisdiction to entertain such
proceedings."
12 In the case of Dr.Preeti Bhatt (supra), the Bombay High Court
relying on case of Suhas Pophale (supra). In para 10, the Hon'ble Bombay
High Court has held as under:
“10...In the present case, the tenant's 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 petitioner's father was admittedly a tenant of the
said premises prior to 16th September 1958. The petitioner's 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 father's 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
-- 7 of 18 --
8 Misc. Appeal 188.18
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 tenant's 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.”
13 Thus, if the premises is occupied by the tenant/lessee prior to
6th September, 1958 i.e. prior to the Public Premises Act, 1958 (Repealed)
becoming applicable or prior to the date of the premises concerned
belonging to a government corporation or company, the tenant is
protected under the state Rent Act. Till today, it is good law and has not
been disturbed by any of the judgment. In view of this legal preposition,
let us appreciate the fact of the present case.
14 Indisputably, the premises in question became public premises
on the day of nationalization of the respondent no.1 i.e. in the year 1971.
Although the appellant claims tenancy from 1928, it is a matter of record
that the appellant could only produce the rent receipt from September
1985 onward. Rather, during cross examination, the witness of the
respondent no.1 fairly produced the copy of rent receipt for the month of
April 1979. Thus on record of the estate officer, there is nothing to show
that the appellant is in occupation of the premises prior to 1971 i.e. before
nationalization of the respondent no.1. Thus, there was no material with
the Estate Officer whereby, it can be gathered that the appellant was
tenant of the respondent no.1 prior to 16th September, 1958, much less,
prior to the nationalization of the respondent no.1in the year 1971.
-- 8 of 18 --
9 Misc. Appeal 188.18
15 During the pendency of the appeal, appellant has filed
application (exh.4) under Order 41 Rule 27 Code of Civil Procedure, 1908
(hereinafter referred as ‘Code’ for short) for permission to the appellant to
produce additional evidence in the form of documents i.e. one screen shot
of computer screen of electric department and declaration form 'C' under
the Central Sales Tax. Application (exh.4) was left to be decided with the
appeal.
16 It is contended by the learned advocate for the appellant that
the appellant got these documents under the Right to Information Act,
2005 from the concerned department. He submits that the document of
Central Sales Tax Department shows the existence of Reliable Stationary
Mart on 31st January,1960 (prior to 1971) by which the declaration under
Sales Tax Act on 21st January,1960 was made by the Reliable Stationary
Mart. He also submits that the screen shot of computer of BEST, an
electricity company, shows the payment of installation of meter by the
appellant on 17th June,1968, in Meherwan Building which is now called as
Union Cooperative Insurance Building i.e. premises in question. Taking
help of these documents, learned advocate for the appellant submits that
the occupation of the appellant was prior to the premises became the
public premises in the year 1971 and thus the appellant is protected tenant
under the provision of Maharshtra Rent Control Act, 2003.
17 Per contra, learned advocate for respondent, submitted that
the application is not maintainable. Inspite of having opportunity, no
attempt was made before the Estate Officer. According to him, no case is
-- 9 of 18 --
10 Misc. Appeal 188.18
made out under Order 41 Rule 27 of Code and despite of the opportunity,
the appellant did not produce the material before Estate Officer to show
that the appellant occupied the premises prior to 1971. Hence, it is not
protected under the rent act.
18 No doubt, the provisions of Code is not strictly applicable to
the proceedings under the Act, but certainly in absence of the provisions
under the Act, the Code will be guiding factor for deciding any question
under the Act. Order 41 Rule 27 of the Code gives discretion to the court
in certain circumstances to allow the production of additional evidence at
the appellate stage. The circumstances which are available to the parties
are: the document was refused to be admitted during the trial of inquiry;
The party was not having knowledge after the exercise of due diligence.
Perusal of application (Exh.4) does not reveal any of the ground mentioned
above.
19 Scrutiny of record shows that Estate Officer gave ample
opportunity to the appellant to show that the premises were occupied by it,
prior to 1958 much less prior to 1971. The opportunities to produce the
documentary evidence and adducing oral evidence as well, in support of
the documents, were given to the appellant, but nothing was place on
record in this regard, except bare words, of the partner of the appellant.
Even, the appellant crossexamined to the witness of the respondent no.1,
but could not elicited anything to show that he was tenant of the building,
prior to the dates referred above. It is evident from the reply to the notice
of the respondent no.1 that the appellant, since inception of the
-- 10 of 18 --
11 Misc. Appeal 188.18
proceeding, rather prior to it had claimed that he is protected tenant under
the Maharashtra Rent control Act. But, could not file any document in
respect of its contentions in the inquiry which lasted almost for a year.
20 Thus, even on touch stone of the principles of natural justice,
the production of document cannot be allowed to be filed at belated stage,
particularly, when the appellant since initial stage of the proceeding, rather
prior to it, was having knowledge that to claim the protection under the
Rent Act, he has to establish his occupation prior to above referred dates.
If this is allowed, then there will be no ending of process in any of the
judicial proceedings. Thus, the application exh.4 cannot be allowed and is
hereby rejected.
21 Having failed to establish the occupation of the appellant prior
to above referred dates, the argument of learned advocate for appellant
regarding appellant being protected tenant under provisions of
Maharashtra Rent Control Act, does not sustain. The learned Estate Officer
is perfect in holding that appellant is not protected Tenant under
Maharashtra Rent Control Act, 2003. Accordingly, I answer point no.1.
22 Point no.2: Evidently, the appellant was tenant of the
respondent. It is a matter of record that notice under Section 106 of
Transfer of Property Act has been issued to the appellant. Just because the
ground of the bona fide requirement of the premises by the appellant, is
not mentioned in the notice dated 31.01.2017 issued by the respondent
-- 11 of 18 --
12 Misc. Appeal 188.18
No.1, it does not become invalid.
The Apex Court in the case of Jiwan Dass V/s. Life Insurance
Corporation of India and another reported in 1994 Supp (3) Supreme
Court Cases 694 in para no.4 has held as under:
“Section 106 of the T.P. Act does indicate that the
landlord is entitled to terminate the tenancy by giving 15
days notice, if it is a premises occupied on monthly tenancy
and by giving 6 months notice if the premises are occupied
for agricultural or manufacturing purposes, and on expiry
thereof proceedings could be initiated. Section 106 of the
T.P. Act does not contemplate of giving any reason for
terminating the tenancy. Equally the definition of the public
premises 'unauthorised occupation' under Section 2(g) of the
Act postulate that the tenancy “has been determined for any
reason whatsoever.” When the statute has advisedly given
wide powers to the public authorities under the Act to
determine the tenancy, it is not permissible to cut down the
width of the powers by reading into it the reasonable and
justifiable grounds for initiating action for terminating the
tenancy under Section 106 of the T.P. Act. If it is so read
Section 106 of T.P. Act and Section 2(g) of the Act would
become ultra vires. The statute advisedly empowered the
authority to act in the public interest and determine the
tenancy or leave or licence before taking action under Section
5 of the Act. If the contention of the appellant is given
acceptance he would be put on a higher pedestal than a
statutory tenant under the Rent Act. Take for example that a
premises is let out at a low rent years back like the present
one. The rent is unrealistic. With a view to revise adequate
market rent, tenant became liable to ejectment. This
contention then is, action is violative of Article 21 offending
right to livelihood. This contention too is devoid of any
substance. An owner is entitled to deal with his property in
his own way profitable in its use and occupation. A public
authority is equally entitled to use the public property to the
best advantage as a commercial venture. As an integral
incidence of ejectment of a tenant/licensee is inevitable. So
-- 12 of 18 --
13 Misc. Appeal 188.18
the doctrine of livelihood cannot indiscriminately be
extended to the area of commercial operation. Therefore, we
do not find any substance in the contentions of the appellant.
The appeal is accordingly dismissed. No costs.”
23 In view of above, I find no merit in the argument of the
advocate for the appellant that notice under section 106 of the Transfer of
the property Act is invalid and therefore, vitiate the entire proceeding.
24 It seems from the impugned order that the eviction order has
been passed mainly on the ground of sub letting, addition, alteration and
bonafide requirement. From the evidence adduced before the Estate
Officer, particularly, the crossexamination of the appellant, it is abundant
clear that initially the business of Stationary Mart was being run from the
suit premises and subsequently, restaurant business is started in name and
style M/s.Bugo Sago Restaurant under the chain marketing scheme. Even
the signboard of M/s.Bugo Sago Restaurant is affixed on the suit premises.
25 Admittedly, M/s.Bugo Sago Restaurant was not the original
tenant of the respondent. There is no dispute with regard to the fact that
the permission of the respondent no.1 was not sought to give the premises
to a franchise/chain marketing company M/s.Bugo Sago Restaurant. It is
brought in cross examination of the appellant, M/s.Bugo Sago Restaurant
has been managing the said business. Thus, the respondent no.1, prima
facie, shifted the burden on the appellant to show that it is not the
M/s.Bugo Sago Restaurant who is controlling the premises, by showing the
-- 13 of 18 --
14 Misc. Appeal 188.18
arrangement between M/s.Bugo Sago Restaurant, particularly, when
specific questions were put to the respondent no.1 to inform the nature of
arrangement between the appellant and M/s.Bugo Sago Restaurant or to
file document of arrangement between them. But, neither the answer was
given nor the document of arrangement between the two, was produced.
Therefore, I do not find force in the argument of learned for appellant that
it cannot be termed as sub letting. Even otherwise, the nature of business
has been changed from stationery to restaurant, without consent and
authority of the respondent no.1landlord.
26 Turning to the ground of addition and alteration, admittedly
Mumbai Municipal Corporation (hereinafter referred to as “MMC”) had
issued notice to the appellant under Section 351 of the MMC Act for
illegally constructing the mezzanine floor. The said notice was challenged
by the respondent no.1in the City Civil Court. Rather, it is matter of record
that thereafter the MMC has demolished the unauthorized construction of
mezzanine floor which was constructed by the appellant without the
permission of the respondent no.1. Thus, the Estate Officer was justified in
holding that the appellant has carried out addition and alteration to the
tenanted premises, without the permission of the respondent No.1.
Needless to say that it is a reasonable ground for the respondent no.1 to
terminate the tenancy.
27 Evidently, the respondent No.1 was running its business from
various tenanted premises. The appellant had to vacate some of the
-- 14 of 18 --
15 Misc. Appeal 188.18
premises, either on one ground or another on the proceeding initiated by
the landlord of the said premises. This itself goes to show the bonafide
requirement of the respondent No.1 for the suit property. The respondent
no.1Government of India's undertaking cannot be doubted in view of the
factum of the vacation of the premises by the respondent. Thus, no fault
can be seen in the order of eviction passed by the Estate Officer. Hence, I
answer this point in affirmative.
28 Point no.3: The impugned order shows for determination of
damages on the count of unauthorised use, the Estate Officer relied on the
evidence of the respondent no.1witness Ramkrishna Kejriwal, a valuer
who inspected the premises and vide its report dated 24th January,2017
valued fair rent @ Rs.268/ per sq.ft. for ground floor and @ Rs.187/ per
sq.ft. for the mezzanine floor. The Estate Officer did not allow the rent
damages towards mezzanine floor since it was demolished by the MMC.
The Estate Officer calculated the rent @ Rs.222/ per sq..ft. for
unauthorised use. Mr. Kejriwal was crossexamined by the appellant.
Except denial, nothing has been elicited in the crossexamination of this
witness.
29 Report reveals that the valuer has calculated the fair rent after
considering the three premises including the suit property of the same
area. Page 2 of reports reveals that rent of suit property @ Rs.206.25 has
been calculated on the basis of market rate and Rent of rest of two
properties is taken as Rs.310/ and Rs.264/. The valuer on basis of
average of these three premises, concluded the fair market rate @ Rs.268/
-- 15 of 18 --
16 Misc. Appeal 188.18
per sq.ft. per month for the ground floor of the suit property with a
variance of plus minus 5%. If the suit property itself was rentable in the
market @ 206.25 per sq.ft. per month, there was no need to calculate the
rent of other premises and then to take average of three. Thus, market rent
of the ground floor of the suit property would be Rs.206.25/ with variance
of plus minus 5% of the said rent will be the fair rent of the suit premises.
By reducing 5% as done by the Estate Officer, Rs.195/ per sq.ft. per month
would be fair rent of the suit premises. Accordingly, the amount of
Rs.66,320/ (Rs.195 x 340.1 per month) would be the just and proper
damages which the respondent No.1 would be entitled. To that extent the
finding of the Estate Officer is required to be corrected. Accordingly, I
answer this point.
In view of above, I pass the following order:
O R D E R
1. The appeal is partly allowed.
2. Eviction order dated 16th April, 2018 passed by the
Estate Officer is hereby confirmed.
3. The order regarding damages passed by the Estate
Officer is modified as under:
“The appellant is liable to pay to damages of
Rs.66,320/ per month from 1 st March, 2017 till the
date of taking over possession by the respondent
no.1 along with interest @ 8% per annum.
4. The application at Exhibit4 stands rejected.
-- 16 of 18 --
17 Misc. Appeal 188.18
5. Record and Proceeding be sent back to The Estate
Officer.
04/01/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 04.01.2020.
Transcribed on : 04.01.2020 & 06.01.2020.
Signed by H.H.J. on : 16.01.2020.
-- 17 of 18 --
18 Misc. Appeal 188.18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs. Aruna S. Jayade
Upload date and time: 16/01/2020 at 05.05 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 4th January,2020
Order signed by P.O. on 16th January,2020
Order uploaded on 16th January,2020
-- 18 of 18 --