SUHAS H POPHALE Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) This Writ Petition under Article 226 of the Constitution of India takes exception to the judgment and order passed by the Principal Judge of the City Civil Court at Mumbai dated 17th January, 1996 in Miscellaneous Appeal No. 79 of 1973.

(2.) Briefly stated, Mr. E. Voller - original opposite party No.1 was the monthly tenant in respect of the Flat No. 3 in the Indian Mercantile Mansion, at Wode House Road, Opp. Regal Cinema, Mumbai - 39 (hereinafter referred to "the said premises"). The said flat was part of the building, which was owned by the Indian Mercantile Insurance Company Limited(hereinafter referred to as the erstwhile company). The said Mr. E. Voller by a leave and licence agreement dated 20th December, 1972 inducted the Petitioner in the said premises. Since then the Petitioner claims to be in exclusive possession thereof. It is the case of the Petitioner that in reply to his request, the General Manager of the erstwhile Company vide letter dated 16th January, 1973 accepted the Petitioner as tenant of the erstwhile Company in respect of the said premises. Thereafter, the Petitioner made a representation to the erstwhile company to allow change of user of the said premises, by his letter dated 14th March, 1973. It is stated that the Petitioner received reply in response of the said request vide letter dated 18th April, 1973. The Petitioner was, however, shocked to receive a notice dated 12th July, 1980 from the Officer of the Respondent No.1, purportedly terminating the rights of Mr. E. Voller - original opposite party No.1; and calling upon him as well as the Petitioner to handover vacant and peaceful possession of the said premises. The notice proceeds on the basis that the said premises were public premises and after termination of the rights of the original opposite party No.1, the possession of the said premises by the original opposite party No.1 or persons claiming through him would be unauthorized and liable for eviction action and for payment of damages for the unauthorized use thereof. It is stated that the Petitioner made a representation to the Chairman on 22nd November, 1984. Later on, the Petitioner received a showcausenotice dated 31st March, 1992 addressed to Mr. E. Voller and copy marked to the Petitioner, issued by the Estate Officer, for eviction from the said premises and payment of damages for the unauthorized use thereof. Consequent to the said showcausenotice, the Estate Officer proceeded with the inquiry and eventually by his order dated 28th May 1993 directed the eviction of persons in occupation of the said premises and determining the liability of the occupants for unauthorized use of the said premises. It is relevant to mention that in the said inquiry proceedings, the original opposite party No.1 remained absent. The said proceedings were contested only by the Petitioner herein. Against the said decision of the said Estate Officer, the Petitioner alone carried the matter in appeal before the City Civil Court at Mumbai by way of Miscellaneous Appeal No. 79 of 1973. The Appellate Court partly allowed the appeal. It upheld the decision of the Estate Officer that the occupation of the said premises was without authority therefor. Further, the Petitioner was liable to be evicted on account of continued occupation of the said premises in spite of the notice of termination dated 12th July, 1980. However, insofar as the order of the Estate Officer on the question of payment of damages, the Appellate Court found that there was no proper evidence led before the Estate Officer to assess the damages and moreso about the prevailing rent in the adjoining area. It is for this limited reason, the appeal preferred by the Petitioner partly succeeded before the Appellate Court. The Appellate Court after setting aside that part of the order, has remanded the matter to the Estate Officer for fresh hearing on the question of damages alone. The operative order passed by the Appellate Court reads thus:

(3.) The Petitioner by way of this Writ Petition has accordingly challenged only that part of the decision of the Appellate Court, which upholds the order of eviction passed against the occupants of the said premises including the Petitioner herein. The substance of the challenge is that, by virtue of leave and licence agreement in favour of the Petitioner, by the original tenant, dated 20th December 1972, the Petitioner was put in lawful occupation of the said premises and thereafter continued to remain in possession thereof till now. According to the Petitioner, since the Petitioner was put in lawful possession of the said premises prior to 01st February, 1973 and the leave and licence agreement was subsisting on that day, upon introduction of Section 15A of Bombay Rents , Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to "Bombay Rent Act"), the Petitioner became the protected licencee. As a result, the status of the Petitioner cannot be treated as unauthorized occupant of the said premises. Moreover, the Respondent No.1 has acquired title in respect of the property owned by the erstwhile Company under the Oriental Fire and General Insurance Company Limited (Merger) Scheme, 1973 ( hereinafter referred to "the Scheme of 1973"), which has come into force only on first day of January, 1974which is the specified date mentioned in the said Scheme. Thus, the said premises can be treated as public premises only from such date and not anterior thereto. However, before 01st January, 1974, the Petitioner had already acquired the status of protected licensee with effect from 01st February, 1973. From that date, the original opposite party No.1, who had inducted the Petitioner in the said premises, had no subsisting right in respect of the said premises. Further, the rights of the original opposite party No.1 in respect of the said premises came to be terminated vide notice dated 12th July, 1980. However, admittedly, no such notice of termination was issued to the Petitioner, for which reason it is not open to treat the status of the Petitioner as unauthorized occupant. According to the Petitioner, the action initiated by the Estate Officer against the Petitioner was without authority of law and could not be taken further as against the Petitioner. The Petitioner places reliance on the provisions of the General Insurance (Emergency Provisions) Act, 1971 ( hereinafter referred to "the Act of 1971" ) and on the General Insurance Business (Nationalisation) Act, 1972 (hereinafter referred to "the Act of 1972") to contend that the same would be of no availas those enactments do not vest the title in the Respondent No.1 - Company. That has happened only on account of the Scheme of 1973 on and from 01st January, 1974. In other words, the provisions of the Public Premises ( Eviction of Unauthorised Occupants ) Act, 1971 ( hereinafter referred to "the P. P. Act" for sake of brevity ) would become relevant and applicable to the said premises only from 01st January, 1974. But before that date, the Petitioner had already become protected licensee on account of Section 15A of the Bombay Rent Act and therefore, the Petitioner cannot be treated as unauthorized occupant. The Petitioner has additionally criticized the findings and conclusion recorded by the Appellate Court, to which we shall refer to at the appropriate place.