Sec. 15A of the Bombay Rent Act - Maharashtra Rent control Act - vs- sec. 15 of Public premises Act - - the writ petitioner was a tenant of Erstwhile private Insurance company in the disputed premises - Due to merge of private company in to government company does not change the status of the writ petitioner from Tenant to Unauthorized Occupant as he was a protected tenant - and as such Public premises Act not apply - only rent control Act apply - the orders of estate officer and city civil court to evict the writ petitioner is set aside - the High court order dismissing the writ petition is also set aside - appeal is allowed =
To begin with, it has to be noted that the relationship between
the erstwhile insurance company as the landlord and the appellant as the
occupant, at all material times was governed under the Bombay Rent Act.
Like all other rent control enactments, this Act has been passed as a
welfare measure, amongst other reasons to protect the tenants against
unjustified increases above the standard rent, to permit eviction of the
tenants only when a case is made out under the specified grounds, and to
provide for a forum and procedure for adjudication of the disputes between
the landlords and the tenants. The legislature of Maharashtra thought it
necessary to protect the licensees also in certain situations. Therefore,
this act was amended, and a section was inserted therein bearing Section
No.15A to protect the licensees who were in occupation on 1.2.1973. This
Section reads as follows:-
“15A. Certain licensees in occupation on 1st February 1973 to
become tenants
(1) Notwithstanding anything contained elsewhere in this Act
or anything contrary in any other law for the time being in
force, or in any contract where any person is on the 1st day of
February 1973 in occupation of any premises, or any part thereof
which is not less than a room, as a licensee he shall on that
date be deemed to have become, for the purpose of this Act, the
tenant of the landlord, in respect of the premises or part
thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any
manner the operation of sub-section (1) of section 15 after the
date aforesaid.”
We may note that S 15(1) prohibits sub-letting of premises.
It is true that Section 15 of the Public Premises Act creates
a bar of jurisdiction to entertain suits or proceedings in respect of
eviction of any person in an unauthorised occupation.
However, as far as
the relationship between the respondent No. 1, the other General Insurance
Companies, LIC, Nationalised Banks and such other Government Companies or
Corporations, on the one hand and their occupants/licencees/tenants on the
other hand is concerned, such persons who are in occupation prior to the
premises belonging to or taken on lease by such entities, will continue to
be governed by the State Rent Control Act for all purposes. The Public
Premises Act will apply only to those who come in such occupation after
such date.
whether the rights of an occupant/licensee/ tenant protected under a State Rent
Control Act (Bombay Rent Act, 1947 and its successor the Maharashtra Rent
Control Act, 1999, in the instant case), could be adversely affected by
application of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (‘Public Premises Act’ for short)?
This question arises in the
context of the eviction order dated 28.5.1993 passed by the respondent No.
2, Estate Officer of the first respondent, invoking the provisions of the
Public Premises Act with respect to the premises occupied by the appellant
since 20.12.1972.
The eviction order has been upheld by the Bombay High
Court in its impugned judgment dated 7.6.2010, rejecting the Writ Petition
No.2473 of 1996 filed by the appellant herein.
=
The erstwhile insurance company did not object to the
appellant coming into exclusive possession of the said premises.
In fact,
it is the case of the appellant that when Mr. Voller sought the transfer of
the tenancy to the appellant, the General Manager of the said insurance
company, by his reply dated 16.1.1973, accepted the appellant as the
tenant, though for residential purposes only.
The said erstwhile insurance
company, thereafter, started accepting the rent directly from the
appellant. It is also the case of the appellant that on 14.3.1973, he
wrote to the said General Manager seeking a permission for a change of user
i.e. to use the premises for his clinic.
It is also his case that on
18.4.1973, the General Manager wrote back to him that the erstwhile
insurance company had no objection to the change of user, provided the
Municipal Corporation of Greater Mumbai gave no objection.
4. The erstwhile insurance company subsequently merged on 1.1.1974
into the first respondent company which is a Government Company.
The first
respondent, thereafter, addressed a notice dated 12.7.1980 to Mr. E. Voller
terminating his tenancy with respect to the said premises, and then filed a
suit for eviction against Mr. E. Voller and the appellant being R.A.E. Suit
No.1176/3742 of 1981 in the Court of Small Causes at Mumbai, under the
provisions of the then applicable Bombay Rents, Hotel and Lodging Houses
Rates Control Act, 1947 (‘Bombay Rent Act’ for short).
Initially the suit
came to be dismissed for default, but an application was made under Order 9
Rule 9 of Code of Civil Procedure to set aside the said order. The
application was allowed, and the suit remained pending.
5. The appellant then sent a letter dated 22.11.1984 to the first
respondent requesting them to regularize his tenancy as a statutory tenant.
The first respondent, however, served the appellant notices under Section
4 and 7 of the Public Premises Act, to show cause as to why he should not
be evicted from the concerned premises, and to pay damages as specified
therein for unauthorised occupation as claimed.
The first respondent
followed it by preferring Case No.10 and 10A of 1992 before the respondent
No. 2 Estate Officer under the Public Premises Act, to evict Mr. E. Voller
and the appellant, and also to recover the damages. After initiating these
proceedings, the first respondent withdrew on 22.2.1994 the suit filed in
the Court of Small Causes.
The proceedings for eviction from premises, and for recovery of rent and
damages initiated by the first respondent against the appellant under the
Public Premises Act, 1971, are held to be bad in law, and shall therefore
stand dismissed.
We however, make it clear, that in case the respondents
intend to take any steps for that purpose, it will be open to them to
resort to the remedy available under the Maharashtra Rent Control Act,
1999, provided they make out a case therefor. The parties will bear their
own costs.
2014 (Feb.Part) judis.nic.in/supremecourt/filename=41216
H.L. GOKHALE, J. CHELAMESWAR
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1970 OF 2014
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.20625/2010)
Dr. Suhas H. Pophale … Appellant
Versus
Oriental Insurance Co. Ltd. and
Its Estate Officer … Respondents
J U D G E M E N T
H.L. Gokhale J.
Leave granted.
2. This appeal by special leave raises the question as to
whether
the rights of an occupant/licensee/ tenant protected under a State Rent
Control Act (Bombay Rent Act, 1947 and its successor the Maharashtra Rent
Control Act, 1999, in the instant case), could be adversely affected by
application of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (‘Public Premises Act’ for short)?
This question arises in the
context of the eviction order dated 28.5.1993 passed by the respondent No.
2, Estate Officer of the first respondent, invoking the provisions of the
Public Premises Act with respect to the premises occupied by the appellant
since 20.12.1972.
The eviction order has been upheld by the Bombay High
Court in its impugned judgment dated 7.6.2010, rejecting the Writ Petition
No.2473 of 1996 filed by the appellant herein.
The facts leading to this appeal are this wise:-
3. One Mr. Eric Voller was a tenant of the Indian Mercantile
Insurance Company Ltd. (hereinafter referred to as the erstwhile Insurance
Co.), the predecessor in title of the first respondent in respect of the
premises being Flat No.3, Second Floor, Indian Mercantile Mansion (formerly
known as Waterloo Mansion), Wodehouse Road, Opposite Regal Cinema, Colaba,
Mumbai.
This Mr. Voller executed a leave and licence agreement in respect
of these premises on 20.12.1972 in favour of the appellant initially for a
period of two years, and put him in exclusive possession thereof. Mr.
Voller, thereafter migrated to Canada with his family.
The appellant is a practicing physician.
The erstwhile insurance company did not object to the
appellant coming into exclusive possession of the said premises.
In fact,
it is the case of the appellant that when Mr. Voller sought the transfer of
the tenancy to the appellant, the General Manager of the said insurance
company, by his reply dated 16.1.1973, accepted the appellant as the
tenant, though for residential purposes only.
The said erstwhile insurance
company, thereafter, started accepting the rent directly from the
appellant. It is also the case of the appellant that on 14.3.1973, he
wrote to the said General Manager seeking a permission for a change of user
i.e. to use the premises for his clinic.
It is also his case that on
18.4.1973, the General Manager wrote back to him that the erstwhile
insurance company had no objection to the change of user, provided the
Municipal Corporation of Greater Mumbai gave no objection.
4. The erstwhile insurance company subsequently merged on 1.1.1974
into the first respondent company which is a Government Company.
The
management of the erstwhile insurance company had however been taken over
by the Central Government with effect from 13.5.1971, pending its
nationalisation and that of other private insurance companies.
The first
respondent, thereafter, addressed a notice dated 12.7.1980 to Mr. E. Voller
terminating his tenancy with respect to the said premises, and then filed a
suit for eviction against Mr. E. Voller and the appellant being R.A.E. Suit
No.1176/3742 of 1981 in the Court of Small Causes at Mumbai, under the
provisions of the then applicable Bombay Rents, Hotel and Lodging Houses
Rates Control Act, 1947 (‘Bombay Rent Act’ for short).
Initially the suit
came to be dismissed for default, but an application was made under Order 9
Rule 9 of Code of Civil Procedure to set aside the said order. The
application was allowed, and the suit remained pending.
5. The appellant then sent a letter dated 22.11.1984 to the first
respondent requesting them to regularize his tenancy as a statutory tenant.
The first respondent, however, served the appellant notices under Section
4 and 7 of the Public Premises Act, to show cause as to why he should not
be evicted from the concerned premises, and to pay damages as specified
therein for unauthorised occupation as claimed.
The first respondent
followed it by preferring Case No.10 and 10A of 1992 before the respondent
No. 2 Estate Officer under the Public Premises Act, to evict Mr. E. Voller
and the appellant, and also to recover the damages. After initiating these
proceedings, the first respondent withdrew on 22.2.1994 the suit filed in
the Court of Small Causes. It is, however, relevant to note that in
paragraph No. 4 of their case before the Estate Officer, the first
respondent specifically accepted that Mr. E. Voller had sublet or given on
leave and licence basis or otherwise transferred his interest in the said
flat to the appellant in or about 1972, though without any authority from
the respondent No. 1. The first respondent alleged that the appellant had
carried out structural changes. The appellant denied the allegation. He
claimed that he had effected some essential minor repairs for maintenance
of the premises since the first respondent was neglecting to attend the
same. The appellant filed a reply pointing out that he had been accepted as
a tenant by the predecessor of the first respondent by their earlier
referred letter dated 16.1.1973. The first respondent, however, responded
on 5.1.1993 stating that they did not have any record of the erstwhile
insurance company prior to 1975. The second respondent thereafter passed
an order on 28.5.1993 directing eviction of Mr. E. Voller and the
appellant, and also for recovery of damages at the rate of Rs.6750 per
month from 1.9.1980.
6. Being aggrieved by the said order, the appellant filed an
appeal before the City Civil Court at Mumbai under Section 9 of the Public
Premises Act, which appeal was numbered as Misc. Appeal No.79/93. The City
Civil Court set aside the order of damages, and remanded the matter to the
second respondent to reconsider that aspect, but upheld the order of
eviction by its judgment and order dated 17.1.1996. The appellant thereupon
filed a writ petition bearing No.2473/1996 before the High Court on
15.4.1996 to challenge that part of the appellate order which upheld the
order of eviction. The High Court dismissed the Writ Petition, by the
impugned judgment and order dated 7.6.2010, with costs.
7. The principal contention raised by the appellant right from the
stage of the proceedings before the respondent No. 2, and even before the
High Court, was that his occupation of the concerned premises was protected
under the newly added S 15A of the Bombay Rent Act with effect from
1.2.1973, i.e. prior to the first respondent acquiring the title over the
property from 1.1.1974. Therefore, he could not be evicted by invoking the
provisions of Public Premises Act, and by treating him as an unauthorised
occupant under that act. The impugned order of the High Court rejected the
said submission holding that the provisions of the Bombay Rent Act were not
applicable to the premises concerned, and the said premises were covered
under the Public Premises Act.
The High Court principally relied upon the
judgment of a Constitution Bench of this Court in Ashoka Marketing Ltd. Vs.
Punjab National Bank reported in 1990 (4) SCC 406.
As per the view taken
by the High Court, this judgment rejects the contention that the provisions
of the Public Premises Act cannot be applied to the premises which fall
within the ambit of a State Rent Control Act.
The High Court held that the
Public Premises Act became applicable to the concerned premises from
13.5.1971 itself i.e. the appointed date under the General Insurance
(Emergency Provisions) Act, 1971 wherefrom the management of the erstwhile
insurance company was taken over by the Central Government, and not from
the date of merger i.e. 1.1.1974. It is this judgment which is under
challenge in the present appeal.
8. Mr. Rohinton F. Nariman, learned senior counsel has appeared
for the appellant and Mr. Harin P. Raval, learned senior counsel has
appeared for the respondents.
The principal issue involved in the matter:-
9. To begin with, it has to be noted that the relationship between
the erstwhile insurance company as the landlord and the appellant as the
occupant, at all material times was governed under the Bombay Rent Act.
Like all other rent control enactments, this Act has been passed as a
welfare measure, amongst other reasons to protect the tenants against
unjustified increases above the standard rent, to permit eviction of the
tenants only when a case is made out under the specified grounds, and to
provide for a forum and procedure for adjudication of the disputes between
the landlords and the tenants. The legislature of Maharashtra thought it
necessary to protect the licensees also in certain situations. Therefore,
this act was amended, and a section was inserted therein bearing Section
No.15A to protect the licensees who were in occupation on 1.2.1973. This
Section reads as follows:-
“15A. Certain licensees in occupation on 1st February 1973 to
become tenants
(1) Notwithstanding anything contained elsewhere in this Act
or anything contrary in any other law for the time being in
force, or in any contract where any person is on the 1st day of
February 1973 in occupation of any premises, or any part thereof
which is not less than a room, as a licensee he shall on that
date be deemed to have become, for the purpose of this Act, the
tenant of the landlord, in respect of the premises or part
thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any
manner the operation of sub-section (1) of section 15 after the
date aforesaid.”
We may note that S 15(1) prohibits sub-letting of premises.
10. As far as the insurance business in India is concerned, prior
to independence, it was owned and operated by private entities. The
governing law for insurance in India was, and still is the Insurance Act,
1938. Post-independence, the Industrial Policy Resolution of 1956 stated
that the Life Insurance industry in India was to be nationalised.
Therefore, the Life Insurance Corporation Act of 1956 was passed creating
the Life Insurance Corporation (LIC), as a statutory corporation, and
transferring the assets of all the private life insurance companies in
India to LIC. Sometimes around 1970-71, it was felt that the general
insurance industry was also in need of nationalisation. Therefore, first
the General Insurance (Emergency Provisions) Act, 1971 was passed by the
Parliament which provided for the taking over of the management of general
insurance business. Though the Act received the assent of the President on
17.6.1971, it was deemed to have come into force on 13.5.1971 from which
date the Central Government assumed the management of General Insurance
Business as an initial step towards the nationalisation. Thereafter, the
General Insurance Business (Nationalisation) Act, 1972 was passed on
20.9.1972. Section 16 of this Act contemplated the merger of the private
insurance companies into certain other insurance companies. Consequently,
these private insurance companies merged into four insurance companies
viz.,
(a) The National Insurance Company Ltd.,
(b) The New India Assurance Company Ltd.,
(c) The Oriental Insurance Company Ltd., and
(d) The United India Insurance Company Ltd.
These four companies are fully owned subsidiaries of the General Insurance
Corporation of India which is a Government Company registered under
Companies Act, 1956, but incorporated as mandated under Section 9 of the
above referred Nationalisation Act. The Central Government holds not less
than 51 per cent of the paid up share capital of the General Insurance
Corporation. The above referred Indian Mercantile Insurance Company Ltd.
merged into the first respondent-Oriental Insurance Company Ltd. w.e.f.
1.1.1974.
11. There is one more important development which is required to be
noted. The Public Premises Act, 1971 (40 of 1971) came to be passed in the
meanwhile. As per its preamble, it is “an act to provide for eviction of
unauthorised occupants from public premises and for certain incidental
matters” such as removal of unauthorised construction, recovery of arrears
of rent etc. It came into force on 23.8.1971, but Section 1(3) thereof
states that it shall be deemed to have come into force on 16.9.1958, except
Section 11 (on offences and penalty) and Sections 19 and 20 (on repeal and
validation). This is because from 16.9.1958, its predecessor Act viz. The
Public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) was
in force for similar purposes, and which was repealed by the above referred
Section 19 of the 1971 Act. As provided under Section 2 (e) (2) (i) of
this Act, the definition of ‘Public Premises’, amongst others, covers the
premises belonging to or taken on lease by or on behalf of any company in
which not less than fifty one per cent of the paid up share capital was
held by the Central Government.
The definition of public premises under
Section 2(e) of this Act reads as follows:-
“2. Definitions…..
[(e) “public premises” means—
(1) any premises belonging to, or taken on lease or requisitioned by,
or on behalf of, the Central Government, and includes any such
premises which have been placed by the Government, whether before
or after the commencement of the Public Premises (Eviction of
Unauthorised Occupants) Amendment Act, 1980, under the control of
the Secretariat of either House of Parliament for providing
residential accommodation to any member of the staff of that
Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,—
(i) any company as defined in Section 3 of the Companies Act, 1956
(1 of 1956), in which not less than fifty-one per cent of the
paid-up share capital is held by the Central Government or any
company which is a subsidiary (within the meaning of that Act)
of the first-mentioned company,
(ii) any Corporation [not being a company as defined in Section 3
of the Companies Act, 1956 (1 of 1956), or a local authority]
established by or under a Central Act and owned or controlled by
the Central Government,
(iii) any University established or incorporated by any Central
Act,
(iv) any Institute incorporated by the Institutes of Technology
Act, 1961 (59 of 1961),
(v) any Board of Trustees constituted under the Major Port Trusts
Act, 1963 (38 of 1963),
(vi) the Bhakra Management Board constituted under Section 79 of
the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board
as and when renamed as the Bhakra-Beas Management Board under
sub-section (6) of Section 80 of that Act;
[(vii) any State Government or the Government of any Union
Territory situated in the National Capital Territory of Delhi or
in any other Union Territory;
(viii) any Cantonment Board consitituted under the Cantonments Act,
1924 (2 of 1924); and]
(3) in relation to the [National Capital Territory of Delhi],—
(i) any premises belonging to the Municipal Corporation of Delhi,
or any municipal committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority,
whether such premises are in the possession of, or leased out
by, the said Authority, [and]
[(iii) any premises belonging to, or taken on lease or
requisitioned by, or on behalf of any State Government or the
Government of any Union Territory;]”
12. The consequence of this development was that in view of the
merger of the erstwhile insurance company into the first respondent, (of
which not less than 51 per cent share holding was that of the Central
Government,) the Public Premises Act became applicable to its premises. It
is the contention of the appellant that although the Act is otherwise
deemed to have come into force from 16.9.1958, as far as the present
premises are concerned, the Act became applicable to them from 1.1.1974
when the erstwhile insurance company merged into the first respondent.
Then only it could be said that the premises ‘belonged’ to a Government
Company. However, since the appellant’s occupation of the said premises was
protected by Section 15A of the Bombay Rent Act which Section had become
enforceable prior thereto from 1.2.1973, he could not be said to be in
‘unauthorised occupation’ and, therefore, could not be evicted by invoking
the provisions of the Public Premises Act. On the other hand, the
contention of the respondents is that the Public Premises Act became
applicable to the concerned premises from 13.5.1971 itself, when the
management of the erstwhile insurance company was taken over by the Central
Government, and the rejection of the writ petition by the High Court on
that ground was justified. The principal issue involved in this matter is
thus about the applicability of the Public Premises Act to the premises
occupied by the appellant.
Submissions of the rival counsel:-
13. Learned Senior Counsel for the appellant, Mr. Nariman submitted
that the finding of the High Court that the Public Premises Act applies to
these premises from 13.5.1971 was an erroneous one. That was the date on
which the Central Government assumed the management of the erstwhile
private insurance company. The erstwhile insurance company continued to
exist until it merged in the appellant-company w.e.f. 1.1.1974. In the
circumstances, although the Public Premises Act came into force on
23.8.1971 (with deemed date of coming into force being 16.9.1958), and
although the appointed date for assuming management was 13.5.1971, the
premises could be said to have ‘belonged’ to the first respondent as per
the definition under Section 2(E)(2)(i) of the Act, only from 1.1.1974,
when the merger took place. Prior thereto the Bombay Rent Act had been
amended and the licensees in occupation, were declared as deemed tenants,
by virtue of Section 15A of the said Act. The appellant has been in
continuous occupation of the said premises as a licensee from 20.12.1972.
On 1.2.1973 his status got elevated to that of a ‘deemed tenant’ which was
prior to the respondent No. 1 becoming owner of the building from 1.1.1974.
The submission of Mr. Nariman was that the appellant had a vested right
under the statute passed by the State Legislature protecting the licensees,
and since the Public Premises Act became applicable from 1.1.1974, the
rights of the tenants and also those of the licensees protected under the
State Act prior to 1.1.1974, could not be taken away by the application of
the Public Premises Act which can apply only prospectively. In his
submission the eviction proceedings under the Public Premises Act against
the appellant were therefore, null and void. The only remedy available for
the first respondent for evicting the appellant would be under the Bombay
Rent Act or under the Maharashtra Rent Control Act, 1999 which has replaced
the said Act with effect from 31.3.2000. We may note at this stage that
Mr. Nariman made a statement that the appellant is making out a case on the
basis of his legal rights as a protected licencee, and not on the basis of
the earlier mentioned correspondence between the appellant and the
erstwhile insurance company.
14. Learned senior counsel for the respondents Mr. Raval, on the
other hand, submitted that once the management of the erstwhile insurance
company was taken over, the Public Premises Act became applicable.
Therefore, it was fully permissible for the first respondent to initiate
the proceedings to evict the appellant from the public premises. In his
view, the legal position, in this behalf, has been settled by the judgment
of the Constitution Bench in the above referred Ashoka Marketing case, and
the view taken by the High Court with respect to the date of applicability
of the Public Premises Act was in consonance with the said judgment.
15. As against that, it is the submission of the Mr. Nariman that
the judgment in Ashoka Marketing (supra) has to be understood in its
context, and that it did not lay down any such wide proposition as Mr.
Raval was canvassing. He pointed out that the judgment in Ashoka Marketing
(supra) was with respect to the overriding effect of the Public Premises
Act vis-à-vis the Delhi Rent Control Act, which are both Acts passed by the
Parliament, and where the premises fall within the ambit of both the
enactments. In the instant case, we are concerned with one Act passed by
the Parliament, and another by a State Legislature. That apart, in his
submission, the Public Premises Act must firstly apply to the concerned
premises, and in his submission the concerned premises did not fall within
the ambit of that act. That being so, in any case, the rights of the
tenants who were protected under the State Act prior to passing of this
Act, could not be said to have been extinguished by virtue of coming into
force of the Public Premises Act.
Consideration of the submissions
The Judgment in the case of Ashoka Marketing
16. Inasmuch as, the judgment in the case of Ashoka Marketing
(supra) is crucial for determining the issue in controversy, it would be
relevant to refer to the said decision in detail. When we analyse the
judgment in Ashoka Marketing (supra), we have to first see as to what was
the subject matter of the controversy before this Court in Ashoka
Marketing?
It was with respect to the eviction of the occupants from the
premises owned by Punjab National Bank and Allahabad Bank which are both
nationalised banks, and by Life Insurance Corporation, which is a Statutory
Corporation. In paragraph 1 of this judgment of the Constitution Bench,
the question framed by the Court for its consideration was as follows:-
“whether a person who was inducted as a tenant in premises,
which are public premises for the purpose of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to
as the ‘Public Premises Act’), and whose tenancy has expired or has
been terminated, can be evicted from the said premises as being a
person in unauthorised occupation of the premises under the provisions
of the Public Premises Act and whether such a person can invoke the
protection of the Delhi Rent Control Act, 1958 (hereinafter referred
to as the ‘Rent Control Act’).
In short, the question is, whether the
provisions of the Public Premises Act would override the provisions of
the Rent Control Act in relation to premises which fall within the
ambit of both the enactments.”
(emphasis supplied)
17. We may refer to the definition of “unauthorised occupation” as
provided under Section 2(g) of the Public Premises Act at this stage.
It reads as follows:-
“2. Definitions….
(g) “unauthorised occupation”, in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, 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.”
As can be seen from this definition, it consists of two parts. In paragraph
30 of the above judgment also, this Court noted that the definition of
‘unauthorized occupation’ in Section 2(g) of the Public Premises Act, was
in two parts.
The first part of this definition deals with persons who are
in occupation of the Public Premises ‘without authority for such
occupation’, and
the second part deals with those in occupation of public
premises, whose authority to occupy the premises ‘has expired or has been
determined for any reason whatsoever’.
As stated in paragraph 1 of the
judgment, the Constitution Bench was concerned with the second part of the
definition.
As far as these two parts are concerned, the Court observed in
paragraph 30 as follows:-
“30. The definition of the expression ‘unauthorised occupation’
contained in Section 2(g) of the Public Premises Act is in two
parts. In the first part the said expression has been defined to
mean the occupation by any person of the public premises without
authority for such occupation. It implies occupation by a person
who has entered into occupation of any public premises without
lawful authority as well as occupation which was permissive at
the inception but has ceased to be so. The second part of the
definition is inclusive in nature and it expressly covers
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.
This part covers a case where a person had entered into
occupation legally under valid authority but who continues in
occupation after the authority under which he was put in
occupation has expired or has been determined. The words
“whether by way of grant or any other mode of transfer” in this
part of the definition are wide in amplitude and would cover a
lease because lease is a mode of transfer under the Transfer of
Property Act. The definition of unauthorised occupation
contained in Section 2(g) of the Public Premises Act would,
therefore, cover a case where a person has entered into
occupation of the public premises legally as a tenant under a
lease but whose tenancy has expired or has been determined in
accordance with law.”
18. Thereafter, the Court dealt with the issue of conflict between
the two enactments and whether the Public Premises Act, would override the
Delhi Rent Control Act. As this Court noted in paragraph 49 of the said
judgment, both these statutes have been enacted by the same legislature,
i.e. Parliament, in exercise of the legislative powers in respect of the
matters enumerated in the Concurrent List. With respect to the rent
control legislations enacted by the State Legislatures, this Court observed
in paragraph 46 as follows:-
“46. As regards rent control legislation enacted by the State
Legislature the position is well settled that such legislation
falls within the ambit of Entries 6, 7 and 13 of List III of the
Seventh Schedule to the Constitution (See. Indu Bhushan Bose Vs.
Rama Sundari Devi1, V. Dhanpal Chettiar case2; Jai Singh Jairam
Tyagi Vs. Mamanchand Ratilal Agarwal3 and Accountant and
Secretarial Services Pvt. Ltd. Vs. Union of India4.”
1. (1969) 2 SCC 289 : (1970) 1 SCR 443, 2. (1979) 4 SCC
214 : (1980) 1 SCR 334
3. (1980) 3 SCC 162 : (1980) 3 SCR 224, 4. (1988) 4 SCC 324
19. As far as Public Premises Act is concerned, paragraph 48 of
this judgment, referred to the earlier judgments in Accountant and
Secretarial Services Pvt. Ltd. Vs. Union of India reported in 1988 (4) SCC
324, and Smt. Saiyada Mossarrat Vs. Hindustan Steel Ltd. reported in 1989
(1) SCC 272. In Accountant and Secretarial Service Pvt. Ltd. (supra), this
Court had held that the Public Premises Act is also referable to Entries 6,
7 and 13 of the Concurrent List. At the end of paragraph 48, of Ashoka
Marketing this Court held:-
“………..There is no inconsistency between the decisions of
this Court in Accountant and Secretarial Services Pvt. Ltd. and
Smt. Saiyada Mossarrat case in as much as in both the decisions
it is held that the Public Premises Act insofar as it deals with
a lessee or licensee of premises other than premises belonging
to the Central Government has been enacted in exercise of the
legislative powers in respect of matters enumerated in the
Concurrent List. We are in agreement with this view.”
20. Thereafter, on the question as to whether the Public Premises
Act overrides the Delhi Rent Control Act, this Court observed as follows at
the end of paragraph 49:-
“In our opinion the question as to whether the provisions of
the Public Premises Act override the provisions of the Rent
Control Act will have to be considered in the light of the
principles of statutory interpretation applicable to laws made
by the same legislature.”
In this context, the Court noted that the two principles which are to be
applied are (i) later laws abrogate earlier contrary laws, and (ii) a
general provision does not derogate from a special one. In paragraph 54,
the Court noted that Public Premises Act is a later enactment having been
enacted on 23.8.1971, whereas the Delhi Rent Control Act, was enacted on
31.12.1958. Thereafter the Court observed in paragraph 55 as follows:-
“55. The Rent Control Act makes a departure from the general
law regulating the relationship of landlord and tenant contained
in the Transfer of Property Act inasmuch as it makes provision
for determination of standard rent, it specifies the grounds on
which a landlord can seek the eviction of a tenant, it
prescribes the forum for adjudication of disputes between
landlords and tenants and the procedure which has to be followed
in such proceedings. The Rent Control Act can, therefore, be
said to be a special statute regulating the relationship of
landlord and tenant in the Union territory of Delhi. The Public
Premises Act makes provision for a speedy machinery to secure
eviction of unauthorised occupants from public premises. As
opposed to the general law which provides for filing of a
regular suit for recovery of possession of property in a
competent court and for trial of such a suit in accordance with
the procedure laid down in the Code of Civil Procedure, the
Public Premises Act confers the power to pass an order of
eviction of an unauthorised occupant in a public premises on a
designated officer and prescribes the procedure to be followed
by the said officer before passing such an order. Therefore, the
Public Premises Act is also a special statute relating to
eviction of unauthorised occupants from public premises. In
other words, both the enactments, namely, the Rent Control Act
and the Public Premises Act, are special statutes in relation to
the matters dealt with therein. Since, the Public Premises Act
is a special statute and not a general enactment the exception
contained in the principle that a subsequent general law cannot
derogate from an earlier special law cannot be invoked and in
accordance with the principle that the later laws abrogate
earlier contrary laws, the Public Premises Act must prevail over
the Rent Control Act.”
(emphasis supplied)
21. In paragraph 62, this Court noted the objects and reasons of
the Delhi Rent Control Act, which are as follows:-
62. ….(a) to devise a suitable machinery for expeditious
adjudication of proceedings between landlords and tenants;
(b) to provide for the determination of the standard rent payable
by tenants of the various categories of premises which should be
fair to the tenants, and at the same time, provide incentive for
keeping the existing houses in good repairs, and for further
investments in house construction; and
(c) to give tenants a larger measure of protection against
eviction……..
22. In paragraph 63, this Court noted the statement of objects and
reasons of the Public Premises Act, which are as follows:-
“63………”The court decisions, referred to above, have created
serious difficulties for the government inasmuch as the
proceedings taken by the various Estate Officers appointed under
the Act either for the eviction of persons who are in
unauthorised occupation of public premises or for the recovery
of rent or damages from such persons stand null and void.... It
has become impossible for government to take expeditious action
even in flagrant cases of unauthorised occupation of public
premises and recovery of rent or damages for such unauthorised
occupation. It is, therefore, considered imperative to restore a
speedy machinery for the eviction of persons who are in
unauthorised occupation of public premises keeping in view at
the same time the necessity of complying with the provisions of
the Constitution and the judicial pronouncements, referred to
above.”
Thereafter, the Court observed:-
“63…….This shows that the Public Premises Act, has been enacted
to deal with the mischief of rampant unauthorized occupation of
public premises by providing a speedy machinery for the eviction
of persons in unauthorized occupation…….”
(emphasis supplied)
23. In paragraph 64, this Court then noted that the Rent Control
Act and the Public Premises Act operated in two different areas, and the
properties ‘belonging to’ the Central Government, Government Companies or
Corporations would be excluded from the application of the Rent Control
Act. The Court observed to the following effect:-
“64. It would thus appear that, while the Rent Control Act
is intended to deal with the general relationship of landlords and
tenants in respect of premises other than government premises, the
Public Premises Act is intended to deal with speedy recovery of
possession of premises of public nature, i.e. property belonging to the
Central Government, or companies in which the Central Government has
substantial interest or corporations owned or controlled by the Central
Government and certain corporations, institutions, autonomous bodies
and local authorities. The effect of giving overriding effect to the
provisions of the Public Premises Act over the Rent Control Act, would
be that buildings belonging to companies, corporations and autonomous
bodies referred to in Section 2(e) of the Public Premises Act would be
excluded from the ambit of the Rent Control Act in the same manner as
properties belonging to the Central Government.…….”
(emphasis supplied)
Thereafter, the Court observed:-
“…..The reason underlying the exclusion of property belonging
to the Government from the ambit of the Rent Control Act, is that the
Government while dealing with the citizens in respect of property
belonging to it would not act for its own purpose as a private landlord
but would act in public interest……”
(emphasis supplied)
24. Paragraph 66 of the judgment makes it clear that this Court was
concerned with a contractual tenancy and ruled out a dual procedure for
eviction. In that context it observed as follows:-
“66……….This would mean that in order to evict a person who is
continuing in occupation after the expiration or termination of
his contractual tenancy in accordance with law, two proceedings
will have to be initiated. First, there will be proceedings
under Rent Control Act before the Rent Controller followed by
appeal before the Rent Control Tribunal and revision before the
High Court. After these proceedings have ended they would be
followed by proceedings under the Public Premises Act, before
the Estate Officer and the Appellate Authority. In other words,
persons in occupation of public premises would receive greater
protection than tenants in premises owned by private persons. It
could not be the intention of Parliament to confer this dual
benefit on persons in occupation of public premises.”
It is relevant to note that, it is in this context that the Court rendered
its decision in Ashoka Marketing, and upheld the orders of eviction under
Public Premises Act.
25. It was submitted by Mr. Nariman, that as can be seen from
above, the Court was concerned with the second part of the definition of
“unauthorised occupation” under Section 2(g) of the Public Premises Act,
which is concerning expiry or determination of the authority to occupy. He
submitted that the ‘determination of tenancy’ is referable to Section 111
of the Transfer of Property Act, and similarly the concept of expiry of the
authority to occupy. Paragraph 30 quoted above specifically refers to the
Transfer of Property Act. He submitted that the latter part of this
definition was indicating a reference to contractual tenancy, and in this
behalf referred to the above referred paragraph 66 which also speaks about
the contractual tenancy. His submission was that since the first part of
the definition under Section 2(g) referred to a person who is occupying the
premises without any authority, it would exclude a person who is occupying
the premises under the authority of law. In his submission, since the
appellant was a deemed tenant under the state law, such a statutory tenant
will have to be considered as protected by authority of law and cannot be
called a person in “unauthorised occupation”. He referred to the judgment
of this Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram reported
in 1986 (3) SCR 866, which held that the amendment brought about by section
15A was an attempt to protect very large number of legitimate persons in
occupation. The judgment also made a distinction in the position of a
statutory tenant as against that of a contractual tenant. In that judgment
it is held that a statutory tenant is entitled to create a licence, whereas
a contractual tenant can create a sub-lease. However, the proposition
canvassed by Mr. Nariman would mean that a licensee protected by statute
will not be in an unauthorised occupation, but a contractual tenant could
be, since, his authority to occupy can be determined, and he would be in an
unauthorised occupation thereafter. Thus, a protected licensee would be
placed on a pedestal higher than that of a principal contractual tenant.
In our view, this judgment does not state so, nor can it lead us to accept
any such proposition as it would mean accepting an incongruous situation.
From what date would the Public Premises Act apply to the concerned
premises?
26. The question that is required to be examined, however, is
whether the tenants as well as licencees, who are protected under the State
Law, could be called unauthorised occupants by applying the Public Premises
Act to their premises as ‘belonging’ to a Government Company, and if so
from what date.
As we have noted earlier, to initiate the eviction
proceedings under this statute, the premises concerned have to be public
premises as defined under Section 2(e) of the Act. Besides, as far as the
present premises are concerned, it is necessary that they must belong to a
Government Company. The definition of public premises will, therefore, have
to be looked into, and it will have to be examined as to from what date the
premises can be said to be belonging to a Government Company. Section 19
of the Public Premises Act, 1971 repeals the Public Premises (Eviction of
Unauthorised Occupants) Act, 1958. While repealing this predecessor Act,
Section 1(3) of the 1971 Act lays down that it shall be deemed to have come
into force on the 16th day of September, 1958 except sections 11, 19 and 20
which shall come into force at once (i.e. from 23.8.1971). Section 11
deals with offences and penalties. Section 19 is the repealing Section as
stated above, and Section 20 is the section on validation of any judgment,
decree or order of any competent court which might have been passed under
Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The
conjoint reading of Section 1(3) and Section 2(e) defining Public Premises
will be that although the provisions with respect to eviction under the Act
of 1971 are deemed to have come into force from 16.9.1958, they will apply
to the concerned premises only from the date when they become public
premises.
27. Thus, in the case of a company under the Companies Act, 1956 as
in the present case, it is necessary that the premises must belong to or
must be taken on lease by a company which has not less than 51 per cent
paid up share capital held by the Central Government. The submission of the
respondents is that the date on which the management of the erstwhile
Insurance Company was taken over i.e. 13.5.1971 would be the relevant date,
and from that date the premises would be said to have become public
premises. It was submitted that after coming into force of the said Act, it
was not open to the erstwhile company to transfer or otherwise dispose of
any assets or create any charge, hypothecation, lease or any encumbrance
thereto without the previous approval of the persons specified by the
Central Government. It was contended that as a result, the provisions of
Bombay Rent Act will have to be held as not applicable to the said premises
from such date i.e. 13th May, 1971.
28. The submission of the respondent was accepted by the High Court
by relying upon an earlier judgment of a Division Bench of the Bombay High
Court in the case of M. Mohd vs. Union of India reported in AIR 1982 Bombay
443. In para 22 thereof, the High Court held as follows:-
“…..There is no doubt that the expression “belonging
to” does not mean the same thing as “owned by”. The two expressions
have two different connotations. The expression “belonging to” will
take within its sweep not only ownership but also rights lesser than
that of ownership.”
It is relevant to note that the appellants therein were government
employees occupying premises allotted to them as service premises. The
premises were situated in privately owned buildings, and taken on lease by
the Government. The appellants had retired from their services, but were
not vacating the premises, and hence eviction orders were passed against
them under the Public Premises Act. The premises were admittedly taken on
lease, and were therefore premises belonging to the Central Government. At
the end of paragraph 21 of its judgment, the High Court in terms held as
follows, “Once the factum of lease is established, which has been done in
the present case, the authorities under the act get jurisdiction to inquire
under the act.” The submission of the appellants therein was that the
premises could not be said to be belonging to the respondents, and
therefore, not public premises. It is in this context that the High Court
held that the expression ‘belonging to’ will take within its sweep rights
lesser than that of ownership. The observations quoted above will have to
be read in that context. It is however, relevant to note what the Division
Bench has thereafter added:-
“It must be remembered in this connection that the
expressions used in the statute are to be interpreted and given
meaning in the context in which they are used.”
It is material to note that it was not a case like the present one, where
the occupant has claimed protection under the State Rent Control Law
available to him prior to the Public Premises Act becoming applicable. The
High Court had relied upon a judgment of this Court in Mahomed Amir Ahmad
Khan vs. Municipal Board of Sitapur reported in AIR 1965 SC 1923, wherein
this Court has observed:-
“Though the word “belonging” no doubt is capable of
denoting as absolute title, is nevertheless not confined to connoting
that sense.”
This was a matter wherein the appellant was alleged to have disputed the
title of the respondent landlord by contending that the premises were
belonging to the appellant. The Court noted that all that he meant by
using the word ‘belonging’ was that he was a lessee, and nothing more. It
was in this sense that this Court observed as above while allowing his
appeal.
29. In the present matter we are concerned with the question,
whether the respondents could resort to the provisions of the Public
Premises Act at a time when the merger of the erstwhile insurance company
into the first respondent was not complete. The question is whether taking
over of the management of the erstwhile company can confer upon the
respondent No. 1 the authority to claim that the premises belong to it to
initiate eviction proceedings under the Public Premises Act, to the
detriment of an occupant who is claiming protection under a welfare
enactment passed by the State Legislature. At this juncture we may
profitably refer to the judgment of this Court concerning another welfare
enactment in Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur
and Anr. reported in AIR 1984 SC 1813. The issue before the Court was
whether upon the appointment of an authorised controller under Section 18A
of the Industries (Development and Regulation) Act, 1951 (IDR Act short) in
respect of an industrial undertaking, when it is run by him under the
authority of a Department of the Central Government, the employees of the
undertaking would get excluded from the application of the Payment of Bonus
Act, 1965, in view of the provision contained in Section 32(iv) of the
Bonus Act. The court made a distinction between the concept of taking over
of management and taking over of ownership. Inasmuch as the taking over of
the management did not result into the Central Government becoming the
owner of the textile mills, the right of the workmen to receive bonus was
not extinguished.
The Court held as follows:
“10. Thus the significant consequence that ensues on the issue of a
notified order appointing authorised controller is to divert the
management from the present managers and to vest it in the authorised
controller. Undoubtedly, the heading of Chapter III-A appears to be
slightly misleading when it says that the Central Government on the
issue of a notified order assumes direct management of the industrial
undertaking, in effect on the issuance of a notified order, only the
management of the industrial undertaking undergoes a change. This
change of management does not tantamount to either acquisition of the
industrial undertaking or a take over of its ownership because if that
was to be the intended effect of change of management, the Act would
have been subjected to challenge of Article 31 and 19 (1) (f) of the
Constitution. One can say confidently that was not intended to be the
effect of appointment of an authorised controller. The industrial
undertaking continues to be governed by the Companies Act or the
Partnership Act or the relevant provisions of law applicable to a
proprietary concern. The only change is the removal of managers and
appointment of another manager and to safeguard his position
restriction on the rights of shareholders or partners or original
proprietor. This is the net effect of the appointment of an authorised
controller by a notified order.”
(emphasis supplied)
A similar approach was adopted by the Court in Bhuri Nath and Ors. Vs.
State of J&K and Ors. reported in AIR 1997 SC 1711. Here the issue before
the Court was with respect to the constitutionality of the Jammu and
Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 (XVI of 1988) which was
made to provide better management, administration and governance of Shri
Mata Vaishno Devi Shrine, its endowments, all temples, and sum total of the
properties, movable and immovable, attached or appurtenant to the Shrine.
While addressing an argument with respect to the violation of Article 31 of
the Constitution, the Court observed in para 29 as follows:
“29. ……….The right to superintendence of management,
administration and governance of the Shrine is not the property which
the State acquires. It carries with it no beneficial enjoyment of the
property to the State. The Act merely regulates the management,
administration and governance of the Shrine. It is not an
extinguishment of the right. The appellants-Baridarans were rendering
pooja, a customary right which was abolished and vested in the Board.
The management, administration and governance of the Shrine always
remained with the Dharamarth Trust from whom the Board has taken over
the same for proper administration, management and governance. In
other words, the effect of the enactment of the Act is that the
affairs of the
functioning of the Shrine merely have got transferred from Dharmarth
Trust to the Board. The Act merely regulates in that behalf;
incidentally, the right to collect offerings enjoyed by the Baridarans
by rendering service of pooja has been put to an end under the Act.
The State, resultantly, has not acquired that right onto itself.
……..”
(emphasis supplied)
30. As far as the present matter is concerned it is required to be
noted that the Principal Agencies floated by the promoters of the erstwhile
private Insurance Companies were controlling their business. In the
‘History of Insurance of India’ published by Insurance Regulatory and
Development Authority’ (IRDA) on its official website on 12.07.2007 under
Ref: IRDA/GEN/06/2007 it is stated as follows:
“The Insurance Amendment Act of 1950 abolished Principal
Agencies. However, there were a large number or insurance companies and
the level of competition was high. There were also allegations of unfair
trade practices. The Government of India, therefore, decided to
nationalize insurance business.”
Thus, as far as the erstwhile Insurance Company in the present case is
concerned, as an initial step, its management was taken over by the Central
Government w.e.f. 13.5.1971, and it was entrusted with the custodian
appointed by the Central Government. It would definitely entail a right in
the custodian to take necessary steps to safeguard the property of the
erstwhile insurance company. But it was a transitory arrangement. The
properties of the erstwhile insurance companies did not belong to the
Government Companies or the Government at that stage. The Public Premises
Act, undoubtedly provides a speedy remedy to recover the premises from the
unauthorised occupants. At the same time, we have also to note that in the
instant case the occupant is claiming a substantive right under a welfare
provision of the State Rent Control Act, which gave him a protected status
in view of the amendment to that Act. The question is whether this
authority of management bestowed on the Government Company can take in its
sweep the right to proceed against such protected tenants under the Public
Premises Act, by contending that the premises belonged to the Government
Company at that stage itself, and that the State Rent Control Act no longer
protected them. Considering that the Rent Control Act is a welfare
enactment, and a further protective provision has been made therein, can it
be permitted to be rendered otiose and made inapplicable to premises
specifically sought to be covered thereunder, and defeated by resorting to
the provisions of the Public Premises Act? In the present case, it must
also be noted that the appellant is seeking a protection under Section 15A
of the Bombay Rent Act, which has a non-obstante clause. The respondent No.
1 is undoubtedly not without a remedy, and it can proceed to evict an
unauthorised occupant under the Rent Control Act, if an occasion arises.
It can certainly resort thereto until the managerial right fructifies into
a right of ownership. However by enforcing a speedier remedy, a welfare
provision cannot be rendered nugatory. The provisions of the two
enactments will have to be read harmoniously to permit the operation and co-
existence of both of them to the extent it can be done. Therefore, the
term ‘belonging to’ as occurring in the definition of Public Premises in
Section 2(e) will have to be interpreted meaningfully to imply only the
premises owned by or taken on lease by the Government Company at the
relevant time. In the facts of this case what we find is that the
appellant had the status of a deemed tenant under the Bombay Rent Act, 1947
prior to the concerned premises ‘belonging to a Government Company’ and
becoming public premises. If at all he had to be evicted, it was necessary
to follow the due process of law which would mean the process as available
under the Bombay Rent Act or its successor Maharashtra Rent Control Act,
1999, and not the one which is provided under the provisions of the Public
Premises Act.
Can the Public Premises Act be given retrospective effect?
31. There is another aspect of the matter. Mr. Raval, learned
senior counsel for the respondents has contended that the appellant’s
submission that he was protected under the Bombay Rent Act, and that
protection has been continued under the Maharashtra Rent Control Act, 1999,
is not available before the Estate Officer. The question, therefore, comes
to our mind as to what happens to the rights of the appellant made
available to him under the State Act at a time when the erstwhile company
had not merged in the first respondent Government Company? Can it be said
that he was occupying the premises without the authority for such
occupation? Can it be said that with the application of the Public Premises
Act to the premises occupied by the appellant, those rights get
extinguished? It has been laid down by this Court time and again that if
there are rights created in favour of any person, whether they are property
rights or rights arising from a transaction in the nature of a contract,
and particularly if they are protected under a statute, and if they are to
be taken away by any legislation, that legislation will have to say so
specifically by giving it a retrospective effect. This is because prima
facie every legislation is prospective (see para 7 of the Constitution
Bench judgment in Janardan Reddy Vs. The State reported in AIR 1951 SC
124). In the instant case, the appellant was undoubtedly protected as a
‘deemed tenant’ under Section 15A of the Bombay Rent Act, prior to the
merger of the erstwhile insurance company with a Government Company, and he
could be removed only by following the procedure available under the Bombay
Rent Act. A ‘deemed tenant’ under the Bombay Rent Act, continued to be
protected under the succeeding Act, in view of the definition of a ‘tenant’
under Section 7(15)(a)(ii) of the Maharashtra Rent Control Act, 1999.
Thus, as far as the tenants of the premises which are not covered under the
Public Premises Act are concerned, those tenants who were deemed tenants
under the Bombay Rent Act continued to have their protection under the
Maharashtra Rent Control Act, 1999. Should the coverage of their premises
under the Public Premises Act make a difference to the tenants or occupants
of such premises, and if so, from which date?
32. It has been laid down by this Court through a number of
judgments rendered over the years, that a legislation is not be given a
retrospective effect unless specifically provided for, and not beyond the
period that is provided therein. Thus, a Constitution Bench held in
Garkiapati Veeraya Vs. N. Subbiah Choudhry reported in AIR 1957 SC 540 that
in the absence of anything in the enactment to show that it is to be
retrospective, it cannot be so constructed, as to have the effect of
altering the law applicable to a claim in litigation at the time when the
act was passed. In that matter, the Court was concerned with the issue as
to whether the appellant’s right to file an appeal continued to be
available to him for filing an appeal to the Andhra Pradesh High Court
after it was created from the erstwhile Madras High Court. The
Constitution Bench held that the right very much survived, and the vested
right of appeal can be taken away only by a subsequent enactment, if it so
provides expressly or by necessary intendment and not otherwise.
33. Similarly, in Mahadeolal Kanodia Vs. The Administrator General
of West Bengal reported in AIR 1960 SC 936, this Court was concerned with
the retrospectivity of law passed by the West Bengal legislature concerning
the rights of tenants and in paragraph 8 of the judgment the Court held
that:-
“8. The principles that have to be applied for
interpretation of statutory provisions of this nature are well-
established. The first of these is that statutory provisions creating
substantive rights or taking away substantive rights are ordinarily
prospective; they are retrospective only if by express words or by
necessary implication……”
34. In Amireddi Raja Gopala Rao Vs. Amireddi Sitharamamma reported
in AIR 1965 SC 1970, a Constitution bench was concerned with the issue as
to whether the rights of maintenance of illegitimate sons of a sudra as
available under the Mitakshara School of Hindu Law was affected by
introduction of Sections 4, 21 and 22 of the Hindu Adoption and Maintenance
Act, 1956. The Court held that they were not, and observed in paragraph 7
as follows:-
“A statue has to be interpreted, if possible so as to respect
vested rights, and if the words are open to another construction, such
a construction should never be adopted.”
The same has been the view taken by a bench of three Judges of this Court
in J.P. Jani, Income Tax Officer, Circle IV, Ward G, Ahmedabad Vs.
Induprasad Devshanker Bhatt reported in AIR 1969 SC 778 in the context of a
provision of the Income Tax Act, 1961, in the matter of reopening of
assessment orders. In that matter the Court was concerned with the issue
as to whether the Income Tax Officer could re-open the assessment under
Section 297(2) (d) (ii) and 148 of the Income Tax Act, 1961, although the
right to re-open was barred by that time under the earlier Income Tax Act,
1922. This Court held that the same was impermissible and observed in
paragraph 5 as follows:-
“5…… The reason is that such a construction of Section 297
(2) (d) (ii) would be tantamount to giving of retrospective operation
to that section which is not warranted either by the express language
of the section or by necessary implication. The principle is based on
the well-known rule of interpretation that unless the terms of the
statute expressly so provide or unless there is a necessary
implication, retrospective operation should not be given to the statute
so as to affect, alter or destroy any right already acquired or to
revive any remedy already lost by efflux of time.”
35. In Arjan Singh Vs. State of Punjab reported in AIR 1970 SC 703,
this court was concerned with the issue of date of application of Section
32KK added into the Pepsu Tenancy and Agricultural Lands Act, 1955. This
Court held in paragraph 4 thereof as follows:-
“4. It is a well-settled rule of construction that no provision
in a statute should be given retrospective effect unless the
legislature by express terms or by necessary implication has made it
retrospective and that where a provision is made retrospective, care
should be taken not to extend its retrospective effect beyond what was
intended.”
36. In Ex-Capt., K.C. Arora Vs. State of Haryana reported in 1984
(3) SCC 281, this Court was concerned with a service matter and with the
issue as to whether an amendment in the law could take away the vested
rights with retrospective effect. The Court held that such an amendment
would be invalid if it is violative of the present acquired or accrued
fundamental rights of the affected persons.
37. In the case of K.S. Paripoornan Vs. State of Kerala reported in
AIR 1995 SC 1012, a Constitution Bench of this Court was concerned with the
retrospective effect of Section 23(1A) introduced in the Land Acquisition
Act. While dealing with this provision, this Court has observed as
follows:-
“44. A statute dealing with substantive rights differs from a
statute which relates to procedure or evidence or is declaratory in
nature inasmuch as while a statute dealing with substantive rights is
prima facie prospective unless it is expressly or by necessary
implication made to have retrospective effect, a statute concerned
mainly with matters of procedure or evidence or which is declaratory in
nature has to be construed as retrospective unless there is a clear
indication that such was not the intention of the legislature. A
statute is regarded retrospective if it operates on cases or facts
coming into existence before its commencement in the sense that it
affects, even if for the future only, the character or consequences of
transactions previously entered into or of other past conduct. By
virtue of the presumption against retrospective applicability of laws
dealing with substantive rights transactions are neither invalidated by
reason of their failure to comply with formal requirements subsequently
imposed, nor open to attack under powers of avoidance subsequently
conferred. They are also not rendered valid by subsequent relaxations
of the law, whether relating to form or to substance. Similarly,
provisions in which a contrary intention does not appear neither impose
new liabilities in respect of events taking place before their
commencement, nor relieve persons from liabilities then existing, and
the view that existing obligations were not intended to be affected has
been taken in varying degrees even of provisions expressly prohibiting
proceedings. (See: Halsbury's Laws of England, 4th Edn. Vol. 44, paras
921, 922, 925 and 926).”
38. In the case of Gajraj Singh Vs. State Transport Appellate
Tribunal reported in AIR 1997 SC 412, the Court was concerned with the
provisions of Motor Vehicle Act and repealing of some of its provisions. In
para 30 referring to Southerland on Statutory Construction (3rd Edition)
Vol.I, the Court quoted the following observations:-
“30……Effect on vested rights
Under common law principles of construction and interpretation the
repeal of a statute or the abrogation of a common law principle
operates to divest all the rights accruing under the repealed statute
or the abrogated common law, and to halt all proceedings not concluded
prior to the repeal. However, a right which has become vested is not
dependent upon the common law or the statute under which it was
acquired for its assertion, but has an independent existence.
Consequently, the repeal of the statute or the abrogation of the common
law from which it originated does not efface a vested right, but it
remains enforceable without regard to the repeal.
In order to become vested, the right must be a contract right, a
property right, or a right arising from a transaction in the nature of
a contract which has become perfected to the degree that the continued
existence of the statute cannot further enhance its acquisition.……”
39. Having noted the aforesaid observations, it is very clear that
in the facts of the present case, the appellant’s status as a deemed tenant
was accepted under the state enactment, and therefore he could not be said
to be in “unauthorised occupation”. His right granted by the state
enactment cannot be destroyed by giving any retrospective application to
the provisions of Public Premises Act, since there is no such express
provision in the statute, nor is it warranted by any implication. In fact
his premises would not come within the ambit of the Public Premises Act,
until they belonged to the respondent No. 1, i.e until 1.1.1974. The
corollary is that if the respondent No. 1 wanted to evict the appellant,
the remedy was to resort to the procedure available under the Bombay Rent
Act or its successor Maharashtra Rent Control Act, by approaching the forum
thereunder, and not by resorting to the provisions of the Public Premises
Act.
When are the provisions of Public Premises Act to be resorted to?
40. In the context of the present controversy, we must refer to one
more aspect. As we have noted earlier in paragraph 63 of Ashoka Marketing,
the Constitution Bench has referred to the objects and reasons behind the
Public Premises Act wherein it is stated that it has become impossible for
the Government to take expeditious action even in ‘flagrant cases of
unauthorised occupation’ of public premises. The Court has thereafter
observed in that very paragraph that the Public Premises Act is enacted to
deal with mischief of ‘rampant unauthorised occupation’ of public premises.
41. It is relevant to note that there has been a criticism of the
use of the powers under the Public Premises Act, and the manner in which
they are used in an arbitrary way to evict the genuine tenants from the
public premises causing serious hardships to them. The Central Government
itself has therefore, issued the guidelines to prevent such arbitrary use
of these powers. These guidelines were issued vide Resolution No.
21012/1/2000-Pol.1, dated 30th May, 2002, published in the Gazette of
India, Part I, Sec.1 dated 8th June, 2002. They read as follows:-
”GUIDELINES TO PREVENT ARBITRARY USE OF POWERS TO EVICT GENUINE
TENANTS FROM PUBLIC PREMISES UNDER THE CONTROL OF PUBLIC SECTOR
UNDERTAKINGS / FINANCIAL INSTITUTIONS
1. The question of notification of guidelines to prevent arbitrary
use of powers to evict genuine tenants from public premises under the
control of Public Sector Undertakings/financial institutions has been
under consideration of the Government for some time past.
2. To prevent arbitrary use of powers to evict genuine tenants
from public premises and to limit the use of powers by the Estate
Officers appointed under section 3 of the PP(E) Act, 1971, it has been
decided by Government to lay down the following guidelines:
(i) The provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 [(P.P.(E) Act, 1971] should be used
primarily to evict totally unauthorised occupants of the premises of
public authorities or subletees, or employees who have ceased to be in
their service and thus ineligible for occupation of the premises.
(ii) The provisions of the P.P. (E) Act, 1971 should not be
resorted to either with a commercial motive or to secure vacant
possession of the premises in order to accommodate their own employees,
where the premises were in occupation of the original tenants to whom
the premises were let either by the public authorities or the persons
from whom the premises were acquired.
(iii) A person in occupation of any premises should not be treated or
declared to be an unauthorised occupant merely on service of notice of
termination of tenancy, but the fact of unauthorized occupation shall
be decided by following the due procedure of law. Further, the
contractual agreement shall not be wound up by taking advantage of the
provisions of the P.P.(E) Act, 1971. At the same time, it will be open
to the public authority to secure periodic revision of rent in terms of
the provisions of the Rent Control Act in each State or to move under
genuine grounds under the Rent Control Act for resuming possession. In
other words, the public authorities would have rights similar to
private landlords under the Rent Control Act in dealing with genuine
legal tenants.
(iv) It is necessary to give no room for allegations that evictions
were selectively resorted to for the purpose of securing an unwarranted
increase in rent, or that a change in tenancy was permitted in order to
benefit particular individuals or institutions. In order to avoid such
imputations or abuse of discretionary powers, the release of premises
or change of tenancy should be decided at the level of Board of
Directors of Public Sector Undertakings.
(v) All the public Undertakings should immediately review all pending
cases before the Estate Officer or Courts with reference to these
guidelines, and withdraw eviction proceedings against genuine tenants
on grounds otherwise than as provided under these guidelines. The
provisions under the P.P. (E) Act, 1971 should be used henceforth only
in accordance with these guidelines.
3. These orders take immediate effect.”
42. Thus as can be seen from these guidelines, it is emphasized in
Clause 2(i) thereof, that the Act was meant to evict (a) totally
unauthorised occupants of the public premises or subletees, or (b)
employees who have ceased to be in their service, and were ineligible to
occupy the premises. In Clause 2(ii), it is emphasized that the provisions
should not be resorted to (a) either with a commercial motive, or (b) to
secure vacant possession of the premises in order to accommodate their own
employees, where the premises were in occupation of the original tenants to
whom the premises were let out (i) either by the public authorities, or
(ii) by persons from whom the premises were acquired, indicating thereby
the predecessors of the public authorities. Clause 2 (iii) of these
guidelines is very important. It states on the one hand that it will be
open for the public authority to secure periodic revision of rent in terms
of the provision of the Rent Control Act in each state, and to move under
genuine grounds under the Rent control Act for resuming possession. This
Clause on the other hand states that the public authorities would have
rights similar to private landlords under the Rent Control Act in dealing
with genuine legal tenants. This clause in a way indicates that for
resuming possession in certain situations, where the tenants are protected
under the State Rent Control Act prior to the Public Premises Act becoming
applicable, the public authorities will have to move under the Rent Control
Acts on the grounds which are available to the private landlords. Clause
2(iv) seeks to prevent imputations or abuse of discretionary powers in this
behalf by stating that there should be no room for allegation that
evictions were selectively resorted for the purpose of securing an
unwarranted increase in rent or change in tenancy to benefit particular
individuals or institutions. It, therefore, states that the release of
premises or change of tenancy should be decided at the level of Board of
Directors of Public Sector Undertakings. Clause 2(v) goes further ahead
and instructs all public undertakings that they should review all pending
cases before the Estate Officer or Courts with reference to these
guidelines, and withdraw the proceedings against genuine tenants on grounds
otherwise than as provided under the guidelines.
43. The instructions contained in this Resolution are undoubtedly
guidelines, and are advisory in character and do not confer any rights on
the tenants as held in para 23 of New Insurance Assurance Company Vs. Nusli
Neville Wadia reported in 2008 (3) SCC 279. At the same time, the
intention behind the guidelines cannot be ignored by the Public
Undertakings which are expected to follow the same. When it comes to the
interpretation of the provisions of the statute, the guidelines have been
referred herein for the limited purpose of indicating the intention in
making the statutory provision, since the guidelines are issued to
effectuate the statutory provision. The guidelines do throw some light on
the intention behind the statute. The guidelines are issued with good
intention to stop arbitrary use of the powers under the Public Premises
Act. The powers are given to act for specified reasons, and are expected
to be used only in justified circumstances and not otherwise.
The overall consequence
44. In Ashoka Marketing (supra), this Court was concerned with the
premises of two Nationalised Banks and the Life Insurance Corporation. As
far as Life Insurance Corporation is concerned, the life insurance business
was nationalised under the Life Insurance Corporation Act, 1956.
Therefore, as far as the premises of LIC are concerned, they will come
under the ambit of the Public Premises Act from 16.9.1958, i.e the date
from which the Act is brought into force. As far as Nationalised Banks are
concerned, their nationalization is governed by The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970, and therefore, the
application of Public Premises Act to the premises of the Nationalised
Banks will be from the particular date in the year 1970 or thereafter. For
any premises to become public premises, the relevant date will be 16.9.1958
or whichever is the later date on which the concerned premises become the
public premises as belonging to or taken on lease by LIC or the
Nationalised Banks or the concerned General Insurance Companies like the
first respondent. All those persons falling within the definition of a
tenant occupying the premises prior thereto will not come under the ambit
of the Public Premises Act and cannot therefore, be said to be persons in
“unauthorised occupation”. Whatever rights such prior tenants, members of
their families or heirs of such tenants or deemed tenants or all of those
who fall within the definition of a tenant under the Bombay Rent Act have,
are continued under the Maharashtra Rent Control Act, 1999. If possession
of their premises is required, that will have to be resorted to by taking
steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If
person concerned has come in occupation subsequent to such date, then of
course the Public Premises Act, 1971 will apply.
45. It is true that Section 15 of the Public Premises Act creates
a bar of jurisdiction to entertain suits or proceedings in respect of
eviction of any person in an unauthorised occupation.
However, as far as
the relationship between the respondent No. 1, the other General Insurance
Companies, LIC, Nationalised Banks and such other Government Companies or
Corporations, on the one hand and their occupants/licencees/tenants on the
other hand is concerned, such persons who are in occupation prior to the
premises belonging to or taken on lease by such entities, will continue to
be governed by the State Rent Control Act for all purposes. The Public
Premises Act will apply only to those who come in such occupation after
such date.
Thus, there is no occasion to have a dual procedure which is
ruled out in paragraph 66 of Ashoka Marketing. We must remember that the
occupants of these properties were earlier tenants of the erstwhile
Insurance Companies which were the private landlords. They have not chosen
to be the tenants of the Government Companies. Their status as occupants
of the Public Insurance Companies has been thrust upon them by the Public
Premises Act.
46. This Court has noted in Banatwala and Co. Vs. LIC reported in
2011 (13) SCC 446 that the Public Premises Act, 1971 is concerned with
eviction of unauthorised occupants and recovery of arrears of rent or
damages for such unauthorised occupation, and incidental matters specified
under the act. As far as the Maharashtra Rent Control Act is concerned,
this Court noted in paragraph 25 of that judgment that as per the preamble
of the said Act, it is an Act relating to five subjects, namely (i) control
of rent, (ii) repairs of certain premises, (iii) eviction, (iv) encouraging
the construction of new houses by assuring fair return of investment by the
landlord, and (v) matters connected with the purposes mentioned above. In
that matter, the Court was concerned with the issue of fixation of standard
rent and restoration and maintenance of essential supplies and services by
the landlord. It was held that these two subjects were not covered under
the Public Premises Act, and infact were covered under the Maharashtra Rent
Control Act. Operative para 99(c) of the judgment therefore specifically
held as follows:-
“99 (c) The provisions of the Maharashtra Rent control
Act, 1999 shall govern the relationship between the public
undertakings and their occupants to the extent this Act covers the
other aspects of the relationship between the landlord and tenants,
not covered under the Public Premises Act, 1971.”
47. A judgment of a bench of three Judges of this Court in M/s
Jain Ink Manufacturing Company v. L.I.C reported in (1980) 4 SCC 435 was
relied upon by Mr. Raval. In this matter also a plea was raised on behalf
of the appellant tenant for being covered under the Delhi Rent Control Act,
1958 which came to be repelled. Mr. Raval stressed upon the observations
in Para 5 of the judgment to the effect that Section 2(g) merely requires
occupation of any public premises to initiate the action. Mr. Nariman on
the other hand pointed out that in the earlier part of the very paragraph
the Court had observed, although after referring to the provision of Punjab
Public Premises and Land (Eviction and Rent Recovery), Act 1959 that if the
entry into possession had taken place prior to the passing of the act, then
obviously the occupant would not be an unauthorized occupant. That apart,
Mr. Nariman submitted that the judgment was essentially on the second part
of Section 2(g) defining ‘unauthorised occupation’. It is, however,
material to note that in that case the premises were owned by LIC from
19.7.1958, i.e. prior to the Delhi Rent Control Act becoming applicable
from 9.2.1959. Besides, the issue of protection under a welfare legislation
being available to the tenant prior to the premises becoming public
premises, and the issue of retrospectivity was not under consideration
before the Court. The observations of the Court in that matter will have to
be understood in that context.
48. 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 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.
49. Learned senior counsel for the respondents Mr. Raval submitted
that the judgment of the Constitution Bench in Ashoka Marketing had
clarified the legal position with respect to the relationship between the
Public Premises Act and the Rent Control Act. However, as noted above, the
issue concerning retrospective application of the Public Premises Act was
not placed for the consideration of the Court, and naturally it has not
been gone into it. It was submitted by Mr. Raval that for maintenance of
judicial discipline this bench ought to refer the issue involved in the
present matter to a bench of three Judges, and thereafter that bench should
refer it to a bench of five Judges. He relied upon the judgment of this
Court in the case of Pradip Chandra Parija Vs. Pramod Chandra reported in
2002 (1) SCC 1 in this behalf. He also referred to a judgment of this
Court in Sundarjas Kanyalal Bhatija Vs. Collector, Thane, Maharashtra and
Ors. reported in 1989 (3) SCC 396 and particularly paragraph 18 thereof for
that purpose. What is however, material to note is that this paragraph
also permits discretion to be exercised when there is no declared position
in law. The Bombay Rent Act exempted from its application only the
premises belonging to the government or a local authority. The premises
belonging to the Government Companies or Statutory Corporations were
however covered under the Bombay Rent Act. This position was altered from
16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation)
Act, 1958 came in force which applied thereafter to the Government
Companies and Statutory Corporations, and that position has been reiterated
under the Public Premises Act of 1971 which replaced the 1958 Act. Under
these Acts of 1958 and 1971, the Premises belonging to the Government
Companies or Statutory Corporations are declared to be Public Premises.
Thus, the Parliament took away these premises from the coverage of the
Bombay Rent Act under Article 254(1) of the Constitution of India. This
was, however, in the matter of the subjects covered under the Public
Premises Act, viz. eviction of unauthorised occupants and recovery of
arrears of rent etc. as stated above. Thereafter, if the State Legislature
wanted to cover these subjects viz. a viz. the premises of the Government
Companies and Public Corporations under the Maharashtra Rent Control Act,
1999, it had to specifically state that notwithstanding anything in the
Public Premises Act of 1971, the Government Companies and Public
Corporations would be covered under the Maharashtra Rent Control Act, 1999.
If that was so done, and if the President was to give assent to such a
legislation, then the Government Companies and Public Corporation would
have continued to be covered under the Maharashtra Rent Control Act, 1999
in view of the provision of Article 254(2). That has not happened. Thus,
the Government Companies and Public Corporations are taken out of the
coverage of the Bombay Rent Act, and they are covered under Public Premises
Act, 1971, though from the date specified therein i.e. 16.9.1958. After
that date, the Government Companies and Public Corporations will be
entitled to claim the application of the Public Premises Act, 1971 (and not
of the Bombay Rent Act or its successor Maharashtra Rent Control Act,
1999), but from the date on which premises belong to these companies or
corporations and with respect to the subjects specified under the Public
Premises Act. In that also the public companies and corporations are
expected to follow the earlier mentioned guidelines.
50. We have not for a moment taken any position different from the
propositions in Ashoka Marketing. We are infact in agreement therewith,
and we are not accepting the submission of Mr. Nariman, that only
contractual tenancies were sought to be covered under that judgment, and
not statutory tenancies. Tenancies of both kinds will be covered by that
judgment, and they will be covered under the Public Premises Act for the
subjects specified therein. The only issue is with effect from which date.
That aspect was not canvassed at all before the Constitution Bench, and
that is the only aspect which is being clarified by this judgment. We are
only clarifying that the application of the Public Premises Act will be
only from 16.9.1958, or from such later date when concerned premises become
Public Premises on the concerned landlord becoming a Government Company or
Public Corporation. When the law laid down by the different Benches of
this Court including by the Constitution Benches on retrospectivity is so
clear, and so are the provisions of the Public Premises Act, there is no
occasion for this Court to take any other view. When this judgment is only
clarifying and advancing the proposition laid down in Ashoka Marketing,
there is no reason for us to accept the objections raised by Mr. Raval,
that the issues raised in this matter should not be decided by this bench
but ought to be referred to a larger bench.
51. In this context we may note that since the issue of
retrospective application of the Public Premises Act, to tenancies entered
into before 16.9.1958, or before the property in question becoming a public
premises, was neither canvassed nor considered by the bench in Ashoka
Marketing (supra), the decision does not, in any way, prevent this Bench
from clarifying the law regarding the same. This follows from the judgment
of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in
(2006) 5 SCC 167 wherein it was held that a decision, it is well-settled,
is an authority for what it decides and not what can logically be deduced
therefrom. The following observations of this court from paragraph 39 of
Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd.
reported in AIR1993 SC 43 are also pertinent:
“The judgment must be read as a whole and the observations from the
judgment have to be considered in the light of the questions which
were before this Court. A decision of this Court takes its colour from
the questions involved in the case in which it is rendered and while
applying the decision to a later case, the courts must carefully try
to ascertain the true principle laid down by the decision of this
Court and not to pick out words or sentences from the judgment,
divorced from the context of the questions under consideration by this
Court, to support their reasonings.
(emphasis supplied)
It is clear from a reading of the very first paragraph of Ashoka Marketing
that the question before it was ‘whether the provisions of the Public
Premises Act would override the provisions of the Rent Control Act in
relation to premises which fall within the ambit of both the enactments.’
The Court answered this in the affirmative, and we respectfully agree with
the same. However, Ashoka Marketing (supra) can not be said to be an
authority on the retrospective application of the Public Premises Act, or
where the premises fall within the ambit of only one act, as that issue was
not before the Court.
52. For the reasons stated above, we allow this appeal and set-
aside the impugned judgment and order dated 7.6.2010 rendered by the High
Court of Bombay in Writ Petition No. 2473 of 1996.
The said Writ Petition
shall stand allowed, and the judgment and order dated 17.1.1996 passed by
the City Civil Court, Mumbai, as well as the eviction order dated 28.5.1993
passed by the respondent No. 2 against the appellant will stand set aside.
The proceedings for eviction from premises, and for recovery of rent and
damages initiated by the first respondent against the appellant under the
Public Premises Act, 1971, are held to be bad in law, and shall therefore
stand dismissed.
We however, make it clear, that in case the respondents
intend to take any steps for that purpose, it will be open to them to
resort to the remedy available under the Maharashtra Rent Control Act,
1999, provided they make out a case therefor. The parties will bear their
own costs.
…………………………………..J.
[ H.L. Gokhale ]
……………………………………J.
[ J. Chelameswar ]
New Delhi
Dated: February 11, 2014
-----------------------
60
To begin with, it has to be noted that the relationship between
the erstwhile insurance company as the landlord and the appellant as the
occupant, at all material times was governed under the Bombay Rent Act.
Like all other rent control enactments, this Act has been passed as a
welfare measure, amongst other reasons to protect the tenants against
unjustified increases above the standard rent, to permit eviction of the
tenants only when a case is made out under the specified grounds, and to
provide for a forum and procedure for adjudication of the disputes between
the landlords and the tenants. The legislature of Maharashtra thought it
necessary to protect the licensees also in certain situations. Therefore,
this act was amended, and a section was inserted therein bearing Section
No.15A to protect the licensees who were in occupation on 1.2.1973. This
Section reads as follows:-
“15A. Certain licensees in occupation on 1st February 1973 to
become tenants
(1) Notwithstanding anything contained elsewhere in this Act
or anything contrary in any other law for the time being in
force, or in any contract where any person is on the 1st day of
February 1973 in occupation of any premises, or any part thereof
which is not less than a room, as a licensee he shall on that
date be deemed to have become, for the purpose of this Act, the
tenant of the landlord, in respect of the premises or part
thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any
manner the operation of sub-section (1) of section 15 after the
date aforesaid.”
We may note that S 15(1) prohibits sub-letting of premises.
It is true that Section 15 of the Public Premises Act creates
a bar of jurisdiction to entertain suits or proceedings in respect of
eviction of any person in an unauthorised occupation.
However, as far as
the relationship between the respondent No. 1, the other General Insurance
Companies, LIC, Nationalised Banks and such other Government Companies or
Corporations, on the one hand and their occupants/licencees/tenants on the
other hand is concerned, such persons who are in occupation prior to the
premises belonging to or taken on lease by such entities, will continue to
be governed by the State Rent Control Act for all purposes. The Public
Premises Act will apply only to those who come in such occupation after
such date.
whether the rights of an occupant/licensee/ tenant protected under a State Rent
Control Act (Bombay Rent Act, 1947 and its successor the Maharashtra Rent
Control Act, 1999, in the instant case), could be adversely affected by
application of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (‘Public Premises Act’ for short)?
This question arises in the
context of the eviction order dated 28.5.1993 passed by the respondent No.
2, Estate Officer of the first respondent, invoking the provisions of the
Public Premises Act with respect to the premises occupied by the appellant
since 20.12.1972.
The eviction order has been upheld by the Bombay High
Court in its impugned judgment dated 7.6.2010, rejecting the Writ Petition
No.2473 of 1996 filed by the appellant herein.
=
The erstwhile insurance company did not object to the
appellant coming into exclusive possession of the said premises.
In fact,
it is the case of the appellant that when Mr. Voller sought the transfer of
the tenancy to the appellant, the General Manager of the said insurance
company, by his reply dated 16.1.1973, accepted the appellant as the
tenant, though for residential purposes only.
The said erstwhile insurance
company, thereafter, started accepting the rent directly from the
appellant. It is also the case of the appellant that on 14.3.1973, he
wrote to the said General Manager seeking a permission for a change of user
i.e. to use the premises for his clinic.
It is also his case that on
18.4.1973, the General Manager wrote back to him that the erstwhile
insurance company had no objection to the change of user, provided the
Municipal Corporation of Greater Mumbai gave no objection.
4. The erstwhile insurance company subsequently merged on 1.1.1974
into the first respondent company which is a Government Company.
The first
respondent, thereafter, addressed a notice dated 12.7.1980 to Mr. E. Voller
terminating his tenancy with respect to the said premises, and then filed a
suit for eviction against Mr. E. Voller and the appellant being R.A.E. Suit
No.1176/3742 of 1981 in the Court of Small Causes at Mumbai, under the
provisions of the then applicable Bombay Rents, Hotel and Lodging Houses
Rates Control Act, 1947 (‘Bombay Rent Act’ for short).
Initially the suit
came to be dismissed for default, but an application was made under Order 9
Rule 9 of Code of Civil Procedure to set aside the said order. The
application was allowed, and the suit remained pending.
5. The appellant then sent a letter dated 22.11.1984 to the first
respondent requesting them to regularize his tenancy as a statutory tenant.
The first respondent, however, served the appellant notices under Section
4 and 7 of the Public Premises Act, to show cause as to why he should not
be evicted from the concerned premises, and to pay damages as specified
therein for unauthorised occupation as claimed.
The first respondent
followed it by preferring Case No.10 and 10A of 1992 before the respondent
No. 2 Estate Officer under the Public Premises Act, to evict Mr. E. Voller
and the appellant, and also to recover the damages. After initiating these
proceedings, the first respondent withdrew on 22.2.1994 the suit filed in
the Court of Small Causes.
The proceedings for eviction from premises, and for recovery of rent and
damages initiated by the first respondent against the appellant under the
Public Premises Act, 1971, are held to be bad in law, and shall therefore
stand dismissed.
We however, make it clear, that in case the respondents
intend to take any steps for that purpose, it will be open to them to
resort to the remedy available under the Maharashtra Rent Control Act,
1999, provided they make out a case therefor. The parties will bear their
own costs.
2014 (Feb.Part) judis.nic.in/supremecourt/filename=41216
H.L. GOKHALE, J. CHELAMESWAR
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1970 OF 2014
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.20625/2010)
Dr. Suhas H. Pophale … Appellant
Versus
Oriental Insurance Co. Ltd. and
Its Estate Officer … Respondents
J U D G E M E N T
H.L. Gokhale J.
Leave granted.
2. This appeal by special leave raises the question as to
whether
the rights of an occupant/licensee/ tenant protected under a State Rent
Control Act (Bombay Rent Act, 1947 and its successor the Maharashtra Rent
Control Act, 1999, in the instant case), could be adversely affected by
application of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (‘Public Premises Act’ for short)?
This question arises in the
context of the eviction order dated 28.5.1993 passed by the respondent No.
2, Estate Officer of the first respondent, invoking the provisions of the
Public Premises Act with respect to the premises occupied by the appellant
since 20.12.1972.
The eviction order has been upheld by the Bombay High
Court in its impugned judgment dated 7.6.2010, rejecting the Writ Petition
No.2473 of 1996 filed by the appellant herein.
The facts leading to this appeal are this wise:-
3. One Mr. Eric Voller was a tenant of the Indian Mercantile
Insurance Company Ltd. (hereinafter referred to as the erstwhile Insurance
Co.), the predecessor in title of the first respondent in respect of the
premises being Flat No.3, Second Floor, Indian Mercantile Mansion (formerly
known as Waterloo Mansion), Wodehouse Road, Opposite Regal Cinema, Colaba,
Mumbai.
This Mr. Voller executed a leave and licence agreement in respect
of these premises on 20.12.1972 in favour of the appellant initially for a
period of two years, and put him in exclusive possession thereof. Mr.
Voller, thereafter migrated to Canada with his family.
The appellant is a practicing physician.
The erstwhile insurance company did not object to the
appellant coming into exclusive possession of the said premises.
In fact,
it is the case of the appellant that when Mr. Voller sought the transfer of
the tenancy to the appellant, the General Manager of the said insurance
company, by his reply dated 16.1.1973, accepted the appellant as the
tenant, though for residential purposes only.
The said erstwhile insurance
company, thereafter, started accepting the rent directly from the
appellant. It is also the case of the appellant that on 14.3.1973, he
wrote to the said General Manager seeking a permission for a change of user
i.e. to use the premises for his clinic.
It is also his case that on
18.4.1973, the General Manager wrote back to him that the erstwhile
insurance company had no objection to the change of user, provided the
Municipal Corporation of Greater Mumbai gave no objection.
4. The erstwhile insurance company subsequently merged on 1.1.1974
into the first respondent company which is a Government Company.
The
management of the erstwhile insurance company had however been taken over
by the Central Government with effect from 13.5.1971, pending its
nationalisation and that of other private insurance companies.
The first
respondent, thereafter, addressed a notice dated 12.7.1980 to Mr. E. Voller
terminating his tenancy with respect to the said premises, and then filed a
suit for eviction against Mr. E. Voller and the appellant being R.A.E. Suit
No.1176/3742 of 1981 in the Court of Small Causes at Mumbai, under the
provisions of the then applicable Bombay Rents, Hotel and Lodging Houses
Rates Control Act, 1947 (‘Bombay Rent Act’ for short).
Initially the suit
came to be dismissed for default, but an application was made under Order 9
Rule 9 of Code of Civil Procedure to set aside the said order. The
application was allowed, and the suit remained pending.
5. The appellant then sent a letter dated 22.11.1984 to the first
respondent requesting them to regularize his tenancy as a statutory tenant.
The first respondent, however, served the appellant notices under Section
4 and 7 of the Public Premises Act, to show cause as to why he should not
be evicted from the concerned premises, and to pay damages as specified
therein for unauthorised occupation as claimed.
The first respondent
followed it by preferring Case No.10 and 10A of 1992 before the respondent
No. 2 Estate Officer under the Public Premises Act, to evict Mr. E. Voller
and the appellant, and also to recover the damages. After initiating these
proceedings, the first respondent withdrew on 22.2.1994 the suit filed in
the Court of Small Causes. It is, however, relevant to note that in
paragraph No. 4 of their case before the Estate Officer, the first
respondent specifically accepted that Mr. E. Voller had sublet or given on
leave and licence basis or otherwise transferred his interest in the said
flat to the appellant in or about 1972, though without any authority from
the respondent No. 1. The first respondent alleged that the appellant had
carried out structural changes. The appellant denied the allegation. He
claimed that he had effected some essential minor repairs for maintenance
of the premises since the first respondent was neglecting to attend the
same. The appellant filed a reply pointing out that he had been accepted as
a tenant by the predecessor of the first respondent by their earlier
referred letter dated 16.1.1973. The first respondent, however, responded
on 5.1.1993 stating that they did not have any record of the erstwhile
insurance company prior to 1975. The second respondent thereafter passed
an order on 28.5.1993 directing eviction of Mr. E. Voller and the
appellant, and also for recovery of damages at the rate of Rs.6750 per
month from 1.9.1980.
6. Being aggrieved by the said order, the appellant filed an
appeal before the City Civil Court at Mumbai under Section 9 of the Public
Premises Act, which appeal was numbered as Misc. Appeal No.79/93. The City
Civil Court set aside the order of damages, and remanded the matter to the
second respondent to reconsider that aspect, but upheld the order of
eviction by its judgment and order dated 17.1.1996. The appellant thereupon
filed a writ petition bearing No.2473/1996 before the High Court on
15.4.1996 to challenge that part of the appellate order which upheld the
order of eviction. The High Court dismissed the Writ Petition, by the
impugned judgment and order dated 7.6.2010, with costs.
7. The principal contention raised by the appellant right from the
stage of the proceedings before the respondent No. 2, and even before the
High Court, was that his occupation of the concerned premises was protected
under the newly added S 15A of the Bombay Rent Act with effect from
1.2.1973, i.e. prior to the first respondent acquiring the title over the
property from 1.1.1974. Therefore, he could not be evicted by invoking the
provisions of Public Premises Act, and by treating him as an unauthorised
occupant under that act. The impugned order of the High Court rejected the
said submission holding that the provisions of the Bombay Rent Act were not
applicable to the premises concerned, and the said premises were covered
under the Public Premises Act.
The High Court principally relied upon the
judgment of a Constitution Bench of this Court in Ashoka Marketing Ltd. Vs.
Punjab National Bank reported in 1990 (4) SCC 406.
As per the view taken
by the High Court, this judgment rejects the contention that the provisions
of the Public Premises Act cannot be applied to the premises which fall
within the ambit of a State Rent Control Act.
The High Court held that the
Public Premises Act became applicable to the concerned premises from
13.5.1971 itself i.e. the appointed date under the General Insurance
(Emergency Provisions) Act, 1971 wherefrom the management of the erstwhile
insurance company was taken over by the Central Government, and not from
the date of merger i.e. 1.1.1974. It is this judgment which is under
challenge in the present appeal.
8. Mr. Rohinton F. Nariman, learned senior counsel has appeared
for the appellant and Mr. Harin P. Raval, learned senior counsel has
appeared for the respondents.
The principal issue involved in the matter:-
9. To begin with, it has to be noted that the relationship between
the erstwhile insurance company as the landlord and the appellant as the
occupant, at all material times was governed under the Bombay Rent Act.
Like all other rent control enactments, this Act has been passed as a
welfare measure, amongst other reasons to protect the tenants against
unjustified increases above the standard rent, to permit eviction of the
tenants only when a case is made out under the specified grounds, and to
provide for a forum and procedure for adjudication of the disputes between
the landlords and the tenants. The legislature of Maharashtra thought it
necessary to protect the licensees also in certain situations. Therefore,
this act was amended, and a section was inserted therein bearing Section
No.15A to protect the licensees who were in occupation on 1.2.1973. This
Section reads as follows:-
“15A. Certain licensees in occupation on 1st February 1973 to
become tenants
(1) Notwithstanding anything contained elsewhere in this Act
or anything contrary in any other law for the time being in
force, or in any contract where any person is on the 1st day of
February 1973 in occupation of any premises, or any part thereof
which is not less than a room, as a licensee he shall on that
date be deemed to have become, for the purpose of this Act, the
tenant of the landlord, in respect of the premises or part
thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any
manner the operation of sub-section (1) of section 15 after the
date aforesaid.”
We may note that S 15(1) prohibits sub-letting of premises.
10. As far as the insurance business in India is concerned, prior
to independence, it was owned and operated by private entities. The
governing law for insurance in India was, and still is the Insurance Act,
1938. Post-independence, the Industrial Policy Resolution of 1956 stated
that the Life Insurance industry in India was to be nationalised.
Therefore, the Life Insurance Corporation Act of 1956 was passed creating
the Life Insurance Corporation (LIC), as a statutory corporation, and
transferring the assets of all the private life insurance companies in
India to LIC. Sometimes around 1970-71, it was felt that the general
insurance industry was also in need of nationalisation. Therefore, first
the General Insurance (Emergency Provisions) Act, 1971 was passed by the
Parliament which provided for the taking over of the management of general
insurance business. Though the Act received the assent of the President on
17.6.1971, it was deemed to have come into force on 13.5.1971 from which
date the Central Government assumed the management of General Insurance
Business as an initial step towards the nationalisation. Thereafter, the
General Insurance Business (Nationalisation) Act, 1972 was passed on
20.9.1972. Section 16 of this Act contemplated the merger of the private
insurance companies into certain other insurance companies. Consequently,
these private insurance companies merged into four insurance companies
viz.,
(a) The National Insurance Company Ltd.,
(b) The New India Assurance Company Ltd.,
(c) The Oriental Insurance Company Ltd., and
(d) The United India Insurance Company Ltd.
These four companies are fully owned subsidiaries of the General Insurance
Corporation of India which is a Government Company registered under
Companies Act, 1956, but incorporated as mandated under Section 9 of the
above referred Nationalisation Act. The Central Government holds not less
than 51 per cent of the paid up share capital of the General Insurance
Corporation. The above referred Indian Mercantile Insurance Company Ltd.
merged into the first respondent-Oriental Insurance Company Ltd. w.e.f.
1.1.1974.
11. There is one more important development which is required to be
noted. The Public Premises Act, 1971 (40 of 1971) came to be passed in the
meanwhile. As per its preamble, it is “an act to provide for eviction of
unauthorised occupants from public premises and for certain incidental
matters” such as removal of unauthorised construction, recovery of arrears
of rent etc. It came into force on 23.8.1971, but Section 1(3) thereof
states that it shall be deemed to have come into force on 16.9.1958, except
Section 11 (on offences and penalty) and Sections 19 and 20 (on repeal and
validation). This is because from 16.9.1958, its predecessor Act viz. The
Public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) was
in force for similar purposes, and which was repealed by the above referred
Section 19 of the 1971 Act. As provided under Section 2 (e) (2) (i) of
this Act, the definition of ‘Public Premises’, amongst others, covers the
premises belonging to or taken on lease by or on behalf of any company in
which not less than fifty one per cent of the paid up share capital was
held by the Central Government.
The definition of public premises under
Section 2(e) of this Act reads as follows:-
“2. Definitions…..
[(e) “public premises” means—
(1) any premises belonging to, or taken on lease or requisitioned by,
or on behalf of, the Central Government, and includes any such
premises which have been placed by the Government, whether before
or after the commencement of the Public Premises (Eviction of
Unauthorised Occupants) Amendment Act, 1980, under the control of
the Secretariat of either House of Parliament for providing
residential accommodation to any member of the staff of that
Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,—
(i) any company as defined in Section 3 of the Companies Act, 1956
(1 of 1956), in which not less than fifty-one per cent of the
paid-up share capital is held by the Central Government or any
company which is a subsidiary (within the meaning of that Act)
of the first-mentioned company,
(ii) any Corporation [not being a company as defined in Section 3
of the Companies Act, 1956 (1 of 1956), or a local authority]
established by or under a Central Act and owned or controlled by
the Central Government,
(iii) any University established or incorporated by any Central
Act,
(iv) any Institute incorporated by the Institutes of Technology
Act, 1961 (59 of 1961),
(v) any Board of Trustees constituted under the Major Port Trusts
Act, 1963 (38 of 1963),
(vi) the Bhakra Management Board constituted under Section 79 of
the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board
as and when renamed as the Bhakra-Beas Management Board under
sub-section (6) of Section 80 of that Act;
[(vii) any State Government or the Government of any Union
Territory situated in the National Capital Territory of Delhi or
in any other Union Territory;
(viii) any Cantonment Board consitituted under the Cantonments Act,
1924 (2 of 1924); and]
(3) in relation to the [National Capital Territory of Delhi],—
(i) any premises belonging to the Municipal Corporation of Delhi,
or any municipal committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority,
whether such premises are in the possession of, or leased out
by, the said Authority, [and]
[(iii) any premises belonging to, or taken on lease or
requisitioned by, or on behalf of any State Government or the
Government of any Union Territory;]”
12. The consequence of this development was that in view of the
merger of the erstwhile insurance company into the first respondent, (of
which not less than 51 per cent share holding was that of the Central
Government,) the Public Premises Act became applicable to its premises. It
is the contention of the appellant that although the Act is otherwise
deemed to have come into force from 16.9.1958, as far as the present
premises are concerned, the Act became applicable to them from 1.1.1974
when the erstwhile insurance company merged into the first respondent.
Then only it could be said that the premises ‘belonged’ to a Government
Company. However, since the appellant’s occupation of the said premises was
protected by Section 15A of the Bombay Rent Act which Section had become
enforceable prior thereto from 1.2.1973, he could not be said to be in
‘unauthorised occupation’ and, therefore, could not be evicted by invoking
the provisions of the Public Premises Act. On the other hand, the
contention of the respondents is that the Public Premises Act became
applicable to the concerned premises from 13.5.1971 itself, when the
management of the erstwhile insurance company was taken over by the Central
Government, and the rejection of the writ petition by the High Court on
that ground was justified. The principal issue involved in this matter is
thus about the applicability of the Public Premises Act to the premises
occupied by the appellant.
Submissions of the rival counsel:-
13. Learned Senior Counsel for the appellant, Mr. Nariman submitted
that the finding of the High Court that the Public Premises Act applies to
these premises from 13.5.1971 was an erroneous one. That was the date on
which the Central Government assumed the management of the erstwhile
private insurance company. The erstwhile insurance company continued to
exist until it merged in the appellant-company w.e.f. 1.1.1974. In the
circumstances, although the Public Premises Act came into force on
23.8.1971 (with deemed date of coming into force being 16.9.1958), and
although the appointed date for assuming management was 13.5.1971, the
premises could be said to have ‘belonged’ to the first respondent as per
the definition under Section 2(E)(2)(i) of the Act, only from 1.1.1974,
when the merger took place. Prior thereto the Bombay Rent Act had been
amended and the licensees in occupation, were declared as deemed tenants,
by virtue of Section 15A of the said Act. The appellant has been in
continuous occupation of the said premises as a licensee from 20.12.1972.
On 1.2.1973 his status got elevated to that of a ‘deemed tenant’ which was
prior to the respondent No. 1 becoming owner of the building from 1.1.1974.
The submission of Mr. Nariman was that the appellant had a vested right
under the statute passed by the State Legislature protecting the licensees,
and since the Public Premises Act became applicable from 1.1.1974, the
rights of the tenants and also those of the licensees protected under the
State Act prior to 1.1.1974, could not be taken away by the application of
the Public Premises Act which can apply only prospectively. In his
submission the eviction proceedings under the Public Premises Act against
the appellant were therefore, null and void. The only remedy available for
the first respondent for evicting the appellant would be under the Bombay
Rent Act or under the Maharashtra Rent Control Act, 1999 which has replaced
the said Act with effect from 31.3.2000. We may note at this stage that
Mr. Nariman made a statement that the appellant is making out a case on the
basis of his legal rights as a protected licencee, and not on the basis of
the earlier mentioned correspondence between the appellant and the
erstwhile insurance company.
14. Learned senior counsel for the respondents Mr. Raval, on the
other hand, submitted that once the management of the erstwhile insurance
company was taken over, the Public Premises Act became applicable.
Therefore, it was fully permissible for the first respondent to initiate
the proceedings to evict the appellant from the public premises. In his
view, the legal position, in this behalf, has been settled by the judgment
of the Constitution Bench in the above referred Ashoka Marketing case, and
the view taken by the High Court with respect to the date of applicability
of the Public Premises Act was in consonance with the said judgment.
15. As against that, it is the submission of the Mr. Nariman that
the judgment in Ashoka Marketing (supra) has to be understood in its
context, and that it did not lay down any such wide proposition as Mr.
Raval was canvassing. He pointed out that the judgment in Ashoka Marketing
(supra) was with respect to the overriding effect of the Public Premises
Act vis-à-vis the Delhi Rent Control Act, which are both Acts passed by the
Parliament, and where the premises fall within the ambit of both the
enactments. In the instant case, we are concerned with one Act passed by
the Parliament, and another by a State Legislature. That apart, in his
submission, the Public Premises Act must firstly apply to the concerned
premises, and in his submission the concerned premises did not fall within
the ambit of that act. That being so, in any case, the rights of the
tenants who were protected under the State Act prior to passing of this
Act, could not be said to have been extinguished by virtue of coming into
force of the Public Premises Act.
Consideration of the submissions
The Judgment in the case of Ashoka Marketing
16. Inasmuch as, the judgment in the case of Ashoka Marketing
(supra) is crucial for determining the issue in controversy, it would be
relevant to refer to the said decision in detail. When we analyse the
judgment in Ashoka Marketing (supra), we have to first see as to what was
the subject matter of the controversy before this Court in Ashoka
Marketing?
It was with respect to the eviction of the occupants from the
premises owned by Punjab National Bank and Allahabad Bank which are both
nationalised banks, and by Life Insurance Corporation, which is a Statutory
Corporation. In paragraph 1 of this judgment of the Constitution Bench,
the question framed by the Court for its consideration was as follows:-
“whether a person who was inducted as a tenant in premises,
which are public premises for the purpose of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to
as the ‘Public Premises Act’), and whose tenancy has expired or has
been terminated, can be evicted from the said premises as being a
person in unauthorised occupation of the premises under the provisions
of the Public Premises Act and whether such a person can invoke the
protection of the Delhi Rent Control Act, 1958 (hereinafter referred
to as the ‘Rent Control Act’).
In short, the question is, whether the
provisions of the Public Premises Act would override the provisions of
the Rent Control Act in relation to premises which fall within the
ambit of both the enactments.”
(emphasis supplied)
17. We may refer to the definition of “unauthorised occupation” as
provided under Section 2(g) of the Public Premises Act at this stage.
It reads as follows:-
“2. Definitions….
(g) “unauthorised occupation”, in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, 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.”
As can be seen from this definition, it consists of two parts. In paragraph
30 of the above judgment also, this Court noted that the definition of
‘unauthorized occupation’ in Section 2(g) of the Public Premises Act, was
in two parts.
The first part of this definition deals with persons who are
in occupation of the Public Premises ‘without authority for such
occupation’, and
the second part deals with those in occupation of public
premises, whose authority to occupy the premises ‘has expired or has been
determined for any reason whatsoever’.
As stated in paragraph 1 of the
judgment, the Constitution Bench was concerned with the second part of the
definition.
As far as these two parts are concerned, the Court observed in
paragraph 30 as follows:-
“30. The definition of the expression ‘unauthorised occupation’
contained in Section 2(g) of the Public Premises Act is in two
parts. In the first part the said expression has been defined to
mean the occupation by any person of the public premises without
authority for such occupation. It implies occupation by a person
who has entered into occupation of any public premises without
lawful authority as well as occupation which was permissive at
the inception but has ceased to be so. The second part of the
definition is inclusive in nature and it expressly covers
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.
This part covers a case where a person had entered into
occupation legally under valid authority but who continues in
occupation after the authority under which he was put in
occupation has expired or has been determined. The words
“whether by way of grant or any other mode of transfer” in this
part of the definition are wide in amplitude and would cover a
lease because lease is a mode of transfer under the Transfer of
Property Act. The definition of unauthorised occupation
contained in Section 2(g) of the Public Premises Act would,
therefore, cover a case where a person has entered into
occupation of the public premises legally as a tenant under a
lease but whose tenancy has expired or has been determined in
accordance with law.”
18. Thereafter, the Court dealt with the issue of conflict between
the two enactments and whether the Public Premises Act, would override the
Delhi Rent Control Act. As this Court noted in paragraph 49 of the said
judgment, both these statutes have been enacted by the same legislature,
i.e. Parliament, in exercise of the legislative powers in respect of the
matters enumerated in the Concurrent List. With respect to the rent
control legislations enacted by the State Legislatures, this Court observed
in paragraph 46 as follows:-
“46. As regards rent control legislation enacted by the State
Legislature the position is well settled that such legislation
falls within the ambit of Entries 6, 7 and 13 of List III of the
Seventh Schedule to the Constitution (See. Indu Bhushan Bose Vs.
Rama Sundari Devi1, V. Dhanpal Chettiar case2; Jai Singh Jairam
Tyagi Vs. Mamanchand Ratilal Agarwal3 and Accountant and
Secretarial Services Pvt. Ltd. Vs. Union of India4.”
1. (1969) 2 SCC 289 : (1970) 1 SCR 443, 2. (1979) 4 SCC
214 : (1980) 1 SCR 334
3. (1980) 3 SCC 162 : (1980) 3 SCR 224, 4. (1988) 4 SCC 324
19. As far as Public Premises Act is concerned, paragraph 48 of
this judgment, referred to the earlier judgments in Accountant and
Secretarial Services Pvt. Ltd. Vs. Union of India reported in 1988 (4) SCC
324, and Smt. Saiyada Mossarrat Vs. Hindustan Steel Ltd. reported in 1989
(1) SCC 272. In Accountant and Secretarial Service Pvt. Ltd. (supra), this
Court had held that the Public Premises Act is also referable to Entries 6,
7 and 13 of the Concurrent List. At the end of paragraph 48, of Ashoka
Marketing this Court held:-
“………..There is no inconsistency between the decisions of
this Court in Accountant and Secretarial Services Pvt. Ltd. and
Smt. Saiyada Mossarrat case in as much as in both the decisions
it is held that the Public Premises Act insofar as it deals with
a lessee or licensee of premises other than premises belonging
to the Central Government has been enacted in exercise of the
legislative powers in respect of matters enumerated in the
Concurrent List. We are in agreement with this view.”
20. Thereafter, on the question as to whether the Public Premises
Act overrides the Delhi Rent Control Act, this Court observed as follows at
the end of paragraph 49:-
“In our opinion the question as to whether the provisions of
the Public Premises Act override the provisions of the Rent
Control Act will have to be considered in the light of the
principles of statutory interpretation applicable to laws made
by the same legislature.”
In this context, the Court noted that the two principles which are to be
applied are (i) later laws abrogate earlier contrary laws, and (ii) a
general provision does not derogate from a special one. In paragraph 54,
the Court noted that Public Premises Act is a later enactment having been
enacted on 23.8.1971, whereas the Delhi Rent Control Act, was enacted on
31.12.1958. Thereafter the Court observed in paragraph 55 as follows:-
“55. The Rent Control Act makes a departure from the general
law regulating the relationship of landlord and tenant contained
in the Transfer of Property Act inasmuch as it makes provision
for determination of standard rent, it specifies the grounds on
which a landlord can seek the eviction of a tenant, it
prescribes the forum for adjudication of disputes between
landlords and tenants and the procedure which has to be followed
in such proceedings. The Rent Control Act can, therefore, be
said to be a special statute regulating the relationship of
landlord and tenant in the Union territory of Delhi. The Public
Premises Act makes provision for a speedy machinery to secure
eviction of unauthorised occupants from public premises. As
opposed to the general law which provides for filing of a
regular suit for recovery of possession of property in a
competent court and for trial of such a suit in accordance with
the procedure laid down in the Code of Civil Procedure, the
Public Premises Act confers the power to pass an order of
eviction of an unauthorised occupant in a public premises on a
designated officer and prescribes the procedure to be followed
by the said officer before passing such an order. Therefore, the
Public Premises Act is also a special statute relating to
eviction of unauthorised occupants from public premises. In
other words, both the enactments, namely, the Rent Control Act
and the Public Premises Act, are special statutes in relation to
the matters dealt with therein. Since, the Public Premises Act
is a special statute and not a general enactment the exception
contained in the principle that a subsequent general law cannot
derogate from an earlier special law cannot be invoked and in
accordance with the principle that the later laws abrogate
earlier contrary laws, the Public Premises Act must prevail over
the Rent Control Act.”
(emphasis supplied)
21. In paragraph 62, this Court noted the objects and reasons of
the Delhi Rent Control Act, which are as follows:-
62. ….(a) to devise a suitable machinery for expeditious
adjudication of proceedings between landlords and tenants;
(b) to provide for the determination of the standard rent payable
by tenants of the various categories of premises which should be
fair to the tenants, and at the same time, provide incentive for
keeping the existing houses in good repairs, and for further
investments in house construction; and
(c) to give tenants a larger measure of protection against
eviction……..
22. In paragraph 63, this Court noted the statement of objects and
reasons of the Public Premises Act, which are as follows:-
“63………”The court decisions, referred to above, have created
serious difficulties for the government inasmuch as the
proceedings taken by the various Estate Officers appointed under
the Act either for the eviction of persons who are in
unauthorised occupation of public premises or for the recovery
of rent or damages from such persons stand null and void.... It
has become impossible for government to take expeditious action
even in flagrant cases of unauthorised occupation of public
premises and recovery of rent or damages for such unauthorised
occupation. It is, therefore, considered imperative to restore a
speedy machinery for the eviction of persons who are in
unauthorised occupation of public premises keeping in view at
the same time the necessity of complying with the provisions of
the Constitution and the judicial pronouncements, referred to
above.”
Thereafter, the Court observed:-
“63…….This shows that the Public Premises Act, has been enacted
to deal with the mischief of rampant unauthorized occupation of
public premises by providing a speedy machinery for the eviction
of persons in unauthorized occupation…….”
(emphasis supplied)
23. In paragraph 64, this Court then noted that the Rent Control
Act and the Public Premises Act operated in two different areas, and the
properties ‘belonging to’ the Central Government, Government Companies or
Corporations would be excluded from the application of the Rent Control
Act. The Court observed to the following effect:-
“64. It would thus appear that, while the Rent Control Act
is intended to deal with the general relationship of landlords and
tenants in respect of premises other than government premises, the
Public Premises Act is intended to deal with speedy recovery of
possession of premises of public nature, i.e. property belonging to the
Central Government, or companies in which the Central Government has
substantial interest or corporations owned or controlled by the Central
Government and certain corporations, institutions, autonomous bodies
and local authorities. The effect of giving overriding effect to the
provisions of the Public Premises Act over the Rent Control Act, would
be that buildings belonging to companies, corporations and autonomous
bodies referred to in Section 2(e) of the Public Premises Act would be
excluded from the ambit of the Rent Control Act in the same manner as
properties belonging to the Central Government.…….”
(emphasis supplied)
Thereafter, the Court observed:-
“…..The reason underlying the exclusion of property belonging
to the Government from the ambit of the Rent Control Act, is that the
Government while dealing with the citizens in respect of property
belonging to it would not act for its own purpose as a private landlord
but would act in public interest……”
(emphasis supplied)
24. Paragraph 66 of the judgment makes it clear that this Court was
concerned with a contractual tenancy and ruled out a dual procedure for
eviction. In that context it observed as follows:-
“66……….This would mean that in order to evict a person who is
continuing in occupation after the expiration or termination of
his contractual tenancy in accordance with law, two proceedings
will have to be initiated. First, there will be proceedings
under Rent Control Act before the Rent Controller followed by
appeal before the Rent Control Tribunal and revision before the
High Court. After these proceedings have ended they would be
followed by proceedings under the Public Premises Act, before
the Estate Officer and the Appellate Authority. In other words,
persons in occupation of public premises would receive greater
protection than tenants in premises owned by private persons. It
could not be the intention of Parliament to confer this dual
benefit on persons in occupation of public premises.”
It is relevant to note that, it is in this context that the Court rendered
its decision in Ashoka Marketing, and upheld the orders of eviction under
Public Premises Act.
25. It was submitted by Mr. Nariman, that as can be seen from
above, the Court was concerned with the second part of the definition of
“unauthorised occupation” under Section 2(g) of the Public Premises Act,
which is concerning expiry or determination of the authority to occupy. He
submitted that the ‘determination of tenancy’ is referable to Section 111
of the Transfer of Property Act, and similarly the concept of expiry of the
authority to occupy. Paragraph 30 quoted above specifically refers to the
Transfer of Property Act. He submitted that the latter part of this
definition was indicating a reference to contractual tenancy, and in this
behalf referred to the above referred paragraph 66 which also speaks about
the contractual tenancy. His submission was that since the first part of
the definition under Section 2(g) referred to a person who is occupying the
premises without any authority, it would exclude a person who is occupying
the premises under the authority of law. In his submission, since the
appellant was a deemed tenant under the state law, such a statutory tenant
will have to be considered as protected by authority of law and cannot be
called a person in “unauthorised occupation”. He referred to the judgment
of this Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram reported
in 1986 (3) SCR 866, which held that the amendment brought about by section
15A was an attempt to protect very large number of legitimate persons in
occupation. The judgment also made a distinction in the position of a
statutory tenant as against that of a contractual tenant. In that judgment
it is held that a statutory tenant is entitled to create a licence, whereas
a contractual tenant can create a sub-lease. However, the proposition
canvassed by Mr. Nariman would mean that a licensee protected by statute
will not be in an unauthorised occupation, but a contractual tenant could
be, since, his authority to occupy can be determined, and he would be in an
unauthorised occupation thereafter. Thus, a protected licensee would be
placed on a pedestal higher than that of a principal contractual tenant.
In our view, this judgment does not state so, nor can it lead us to accept
any such proposition as it would mean accepting an incongruous situation.
From what date would the Public Premises Act apply to the concerned
premises?
26. The question that is required to be examined, however, is
whether the tenants as well as licencees, who are protected under the State
Law, could be called unauthorised occupants by applying the Public Premises
Act to their premises as ‘belonging’ to a Government Company, and if so
from what date.
As we have noted earlier, to initiate the eviction
proceedings under this statute, the premises concerned have to be public
premises as defined under Section 2(e) of the Act. Besides, as far as the
present premises are concerned, it is necessary that they must belong to a
Government Company. The definition of public premises will, therefore, have
to be looked into, and it will have to be examined as to from what date the
premises can be said to be belonging to a Government Company. Section 19
of the Public Premises Act, 1971 repeals the Public Premises (Eviction of
Unauthorised Occupants) Act, 1958. While repealing this predecessor Act,
Section 1(3) of the 1971 Act lays down that it shall be deemed to have come
into force on the 16th day of September, 1958 except sections 11, 19 and 20
which shall come into force at once (i.e. from 23.8.1971). Section 11
deals with offences and penalties. Section 19 is the repealing Section as
stated above, and Section 20 is the section on validation of any judgment,
decree or order of any competent court which might have been passed under
Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The
conjoint reading of Section 1(3) and Section 2(e) defining Public Premises
will be that although the provisions with respect to eviction under the Act
of 1971 are deemed to have come into force from 16.9.1958, they will apply
to the concerned premises only from the date when they become public
premises.
27. Thus, in the case of a company under the Companies Act, 1956 as
in the present case, it is necessary that the premises must belong to or
must be taken on lease by a company which has not less than 51 per cent
paid up share capital held by the Central Government. The submission of the
respondents is that the date on which the management of the erstwhile
Insurance Company was taken over i.e. 13.5.1971 would be the relevant date,
and from that date the premises would be said to have become public
premises. It was submitted that after coming into force of the said Act, it
was not open to the erstwhile company to transfer or otherwise dispose of
any assets or create any charge, hypothecation, lease or any encumbrance
thereto without the previous approval of the persons specified by the
Central Government. It was contended that as a result, the provisions of
Bombay Rent Act will have to be held as not applicable to the said premises
from such date i.e. 13th May, 1971.
28. The submission of the respondent was accepted by the High Court
by relying upon an earlier judgment of a Division Bench of the Bombay High
Court in the case of M. Mohd vs. Union of India reported in AIR 1982 Bombay
443. In para 22 thereof, the High Court held as follows:-
“…..There is no doubt that the expression “belonging
to” does not mean the same thing as “owned by”. The two expressions
have two different connotations. The expression “belonging to” will
take within its sweep not only ownership but also rights lesser than
that of ownership.”
It is relevant to note that the appellants therein were government
employees occupying premises allotted to them as service premises. The
premises were situated in privately owned buildings, and taken on lease by
the Government. The appellants had retired from their services, but were
not vacating the premises, and hence eviction orders were passed against
them under the Public Premises Act. The premises were admittedly taken on
lease, and were therefore premises belonging to the Central Government. At
the end of paragraph 21 of its judgment, the High Court in terms held as
follows, “Once the factum of lease is established, which has been done in
the present case, the authorities under the act get jurisdiction to inquire
under the act.” The submission of the appellants therein was that the
premises could not be said to be belonging to the respondents, and
therefore, not public premises. It is in this context that the High Court
held that the expression ‘belonging to’ will take within its sweep rights
lesser than that of ownership. The observations quoted above will have to
be read in that context. It is however, relevant to note what the Division
Bench has thereafter added:-
“It must be remembered in this connection that the
expressions used in the statute are to be interpreted and given
meaning in the context in which they are used.”
It is material to note that it was not a case like the present one, where
the occupant has claimed protection under the State Rent Control Law
available to him prior to the Public Premises Act becoming applicable. The
High Court had relied upon a judgment of this Court in Mahomed Amir Ahmad
Khan vs. Municipal Board of Sitapur reported in AIR 1965 SC 1923, wherein
this Court has observed:-
“Though the word “belonging” no doubt is capable of
denoting as absolute title, is nevertheless not confined to connoting
that sense.”
This was a matter wherein the appellant was alleged to have disputed the
title of the respondent landlord by contending that the premises were
belonging to the appellant. The Court noted that all that he meant by
using the word ‘belonging’ was that he was a lessee, and nothing more. It
was in this sense that this Court observed as above while allowing his
appeal.
29. In the present matter we are concerned with the question,
whether the respondents could resort to the provisions of the Public
Premises Act at a time when the merger of the erstwhile insurance company
into the first respondent was not complete. The question is whether taking
over of the management of the erstwhile company can confer upon the
respondent No. 1 the authority to claim that the premises belong to it to
initiate eviction proceedings under the Public Premises Act, to the
detriment of an occupant who is claiming protection under a welfare
enactment passed by the State Legislature. At this juncture we may
profitably refer to the judgment of this Court concerning another welfare
enactment in Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur
and Anr. reported in AIR 1984 SC 1813. The issue before the Court was
whether upon the appointment of an authorised controller under Section 18A
of the Industries (Development and Regulation) Act, 1951 (IDR Act short) in
respect of an industrial undertaking, when it is run by him under the
authority of a Department of the Central Government, the employees of the
undertaking would get excluded from the application of the Payment of Bonus
Act, 1965, in view of the provision contained in Section 32(iv) of the
Bonus Act. The court made a distinction between the concept of taking over
of management and taking over of ownership. Inasmuch as the taking over of
the management did not result into the Central Government becoming the
owner of the textile mills, the right of the workmen to receive bonus was
not extinguished.
The Court held as follows:
“10. Thus the significant consequence that ensues on the issue of a
notified order appointing authorised controller is to divert the
management from the present managers and to vest it in the authorised
controller. Undoubtedly, the heading of Chapter III-A appears to be
slightly misleading when it says that the Central Government on the
issue of a notified order assumes direct management of the industrial
undertaking, in effect on the issuance of a notified order, only the
management of the industrial undertaking undergoes a change. This
change of management does not tantamount to either acquisition of the
industrial undertaking or a take over of its ownership because if that
was to be the intended effect of change of management, the Act would
have been subjected to challenge of Article 31 and 19 (1) (f) of the
Constitution. One can say confidently that was not intended to be the
effect of appointment of an authorised controller. The industrial
undertaking continues to be governed by the Companies Act or the
Partnership Act or the relevant provisions of law applicable to a
proprietary concern. The only change is the removal of managers and
appointment of another manager and to safeguard his position
restriction on the rights of shareholders or partners or original
proprietor. This is the net effect of the appointment of an authorised
controller by a notified order.”
(emphasis supplied)
A similar approach was adopted by the Court in Bhuri Nath and Ors. Vs.
State of J&K and Ors. reported in AIR 1997 SC 1711. Here the issue before
the Court was with respect to the constitutionality of the Jammu and
Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 (XVI of 1988) which was
made to provide better management, administration and governance of Shri
Mata Vaishno Devi Shrine, its endowments, all temples, and sum total of the
properties, movable and immovable, attached or appurtenant to the Shrine.
While addressing an argument with respect to the violation of Article 31 of
the Constitution, the Court observed in para 29 as follows:
“29. ……….The right to superintendence of management,
administration and governance of the Shrine is not the property which
the State acquires. It carries with it no beneficial enjoyment of the
property to the State. The Act merely regulates the management,
administration and governance of the Shrine. It is not an
extinguishment of the right. The appellants-Baridarans were rendering
pooja, a customary right which was abolished and vested in the Board.
The management, administration and governance of the Shrine always
remained with the Dharamarth Trust from whom the Board has taken over
the same for proper administration, management and governance. In
other words, the effect of the enactment of the Act is that the
affairs of the
functioning of the Shrine merely have got transferred from Dharmarth
Trust to the Board. The Act merely regulates in that behalf;
incidentally, the right to collect offerings enjoyed by the Baridarans
by rendering service of pooja has been put to an end under the Act.
The State, resultantly, has not acquired that right onto itself.
……..”
(emphasis supplied)
30. As far as the present matter is concerned it is required to be
noted that the Principal Agencies floated by the promoters of the erstwhile
private Insurance Companies were controlling their business. In the
‘History of Insurance of India’ published by Insurance Regulatory and
Development Authority’ (IRDA) on its official website on 12.07.2007 under
Ref: IRDA/GEN/06/2007 it is stated as follows:
“The Insurance Amendment Act of 1950 abolished Principal
Agencies. However, there were a large number or insurance companies and
the level of competition was high. There were also allegations of unfair
trade practices. The Government of India, therefore, decided to
nationalize insurance business.”
Thus, as far as the erstwhile Insurance Company in the present case is
concerned, as an initial step, its management was taken over by the Central
Government w.e.f. 13.5.1971, and it was entrusted with the custodian
appointed by the Central Government. It would definitely entail a right in
the custodian to take necessary steps to safeguard the property of the
erstwhile insurance company. But it was a transitory arrangement. The
properties of the erstwhile insurance companies did not belong to the
Government Companies or the Government at that stage. The Public Premises
Act, undoubtedly provides a speedy remedy to recover the premises from the
unauthorised occupants. At the same time, we have also to note that in the
instant case the occupant is claiming a substantive right under a welfare
provision of the State Rent Control Act, which gave him a protected status
in view of the amendment to that Act. The question is whether this
authority of management bestowed on the Government Company can take in its
sweep the right to proceed against such protected tenants under the Public
Premises Act, by contending that the premises belonged to the Government
Company at that stage itself, and that the State Rent Control Act no longer
protected them. Considering that the Rent Control Act is a welfare
enactment, and a further protective provision has been made therein, can it
be permitted to be rendered otiose and made inapplicable to premises
specifically sought to be covered thereunder, and defeated by resorting to
the provisions of the Public Premises Act? In the present case, it must
also be noted that the appellant is seeking a protection under Section 15A
of the Bombay Rent Act, which has a non-obstante clause. The respondent No.
1 is undoubtedly not without a remedy, and it can proceed to evict an
unauthorised occupant under the Rent Control Act, if an occasion arises.
It can certainly resort thereto until the managerial right fructifies into
a right of ownership. However by enforcing a speedier remedy, a welfare
provision cannot be rendered nugatory. The provisions of the two
enactments will have to be read harmoniously to permit the operation and co-
existence of both of them to the extent it can be done. Therefore, the
term ‘belonging to’ as occurring in the definition of Public Premises in
Section 2(e) will have to be interpreted meaningfully to imply only the
premises owned by or taken on lease by the Government Company at the
relevant time. In the facts of this case what we find is that the
appellant had the status of a deemed tenant under the Bombay Rent Act, 1947
prior to the concerned premises ‘belonging to a Government Company’ and
becoming public premises. If at all he had to be evicted, it was necessary
to follow the due process of law which would mean the process as available
under the Bombay Rent Act or its successor Maharashtra Rent Control Act,
1999, and not the one which is provided under the provisions of the Public
Premises Act.
Can the Public Premises Act be given retrospective effect?
31. There is another aspect of the matter. Mr. Raval, learned
senior counsel for the respondents has contended that the appellant’s
submission that he was protected under the Bombay Rent Act, and that
protection has been continued under the Maharashtra Rent Control Act, 1999,
is not available before the Estate Officer. The question, therefore, comes
to our mind as to what happens to the rights of the appellant made
available to him under the State Act at a time when the erstwhile company
had not merged in the first respondent Government Company? Can it be said
that he was occupying the premises without the authority for such
occupation? Can it be said that with the application of the Public Premises
Act to the premises occupied by the appellant, those rights get
extinguished? It has been laid down by this Court time and again that if
there are rights created in favour of any person, whether they are property
rights or rights arising from a transaction in the nature of a contract,
and particularly if they are protected under a statute, and if they are to
be taken away by any legislation, that legislation will have to say so
specifically by giving it a retrospective effect. This is because prima
facie every legislation is prospective (see para 7 of the Constitution
Bench judgment in Janardan Reddy Vs. The State reported in AIR 1951 SC
124). In the instant case, the appellant was undoubtedly protected as a
‘deemed tenant’ under Section 15A of the Bombay Rent Act, prior to the
merger of the erstwhile insurance company with a Government Company, and he
could be removed only by following the procedure available under the Bombay
Rent Act. A ‘deemed tenant’ under the Bombay Rent Act, continued to be
protected under the succeeding Act, in view of the definition of a ‘tenant’
under Section 7(15)(a)(ii) of the Maharashtra Rent Control Act, 1999.
Thus, as far as the tenants of the premises which are not covered under the
Public Premises Act are concerned, those tenants who were deemed tenants
under the Bombay Rent Act continued to have their protection under the
Maharashtra Rent Control Act, 1999. Should the coverage of their premises
under the Public Premises Act make a difference to the tenants or occupants
of such premises, and if so, from which date?
32. It has been laid down by this Court through a number of
judgments rendered over the years, that a legislation is not be given a
retrospective effect unless specifically provided for, and not beyond the
period that is provided therein. Thus, a Constitution Bench held in
Garkiapati Veeraya Vs. N. Subbiah Choudhry reported in AIR 1957 SC 540 that
in the absence of anything in the enactment to show that it is to be
retrospective, it cannot be so constructed, as to have the effect of
altering the law applicable to a claim in litigation at the time when the
act was passed. In that matter, the Court was concerned with the issue as
to whether the appellant’s right to file an appeal continued to be
available to him for filing an appeal to the Andhra Pradesh High Court
after it was created from the erstwhile Madras High Court. The
Constitution Bench held that the right very much survived, and the vested
right of appeal can be taken away only by a subsequent enactment, if it so
provides expressly or by necessary intendment and not otherwise.
33. Similarly, in Mahadeolal Kanodia Vs. The Administrator General
of West Bengal reported in AIR 1960 SC 936, this Court was concerned with
the retrospectivity of law passed by the West Bengal legislature concerning
the rights of tenants and in paragraph 8 of the judgment the Court held
that:-
“8. The principles that have to be applied for
interpretation of statutory provisions of this nature are well-
established. The first of these is that statutory provisions creating
substantive rights or taking away substantive rights are ordinarily
prospective; they are retrospective only if by express words or by
necessary implication……”
34. In Amireddi Raja Gopala Rao Vs. Amireddi Sitharamamma reported
in AIR 1965 SC 1970, a Constitution bench was concerned with the issue as
to whether the rights of maintenance of illegitimate sons of a sudra as
available under the Mitakshara School of Hindu Law was affected by
introduction of Sections 4, 21 and 22 of the Hindu Adoption and Maintenance
Act, 1956. The Court held that they were not, and observed in paragraph 7
as follows:-
“A statue has to be interpreted, if possible so as to respect
vested rights, and if the words are open to another construction, such
a construction should never be adopted.”
The same has been the view taken by a bench of three Judges of this Court
in J.P. Jani, Income Tax Officer, Circle IV, Ward G, Ahmedabad Vs.
Induprasad Devshanker Bhatt reported in AIR 1969 SC 778 in the context of a
provision of the Income Tax Act, 1961, in the matter of reopening of
assessment orders. In that matter the Court was concerned with the issue
as to whether the Income Tax Officer could re-open the assessment under
Section 297(2) (d) (ii) and 148 of the Income Tax Act, 1961, although the
right to re-open was barred by that time under the earlier Income Tax Act,
1922. This Court held that the same was impermissible and observed in
paragraph 5 as follows:-
“5…… The reason is that such a construction of Section 297
(2) (d) (ii) would be tantamount to giving of retrospective operation
to that section which is not warranted either by the express language
of the section or by necessary implication. The principle is based on
the well-known rule of interpretation that unless the terms of the
statute expressly so provide or unless there is a necessary
implication, retrospective operation should not be given to the statute
so as to affect, alter or destroy any right already acquired or to
revive any remedy already lost by efflux of time.”
35. In Arjan Singh Vs. State of Punjab reported in AIR 1970 SC 703,
this court was concerned with the issue of date of application of Section
32KK added into the Pepsu Tenancy and Agricultural Lands Act, 1955. This
Court held in paragraph 4 thereof as follows:-
“4. It is a well-settled rule of construction that no provision
in a statute should be given retrospective effect unless the
legislature by express terms or by necessary implication has made it
retrospective and that where a provision is made retrospective, care
should be taken not to extend its retrospective effect beyond what was
intended.”
36. In Ex-Capt., K.C. Arora Vs. State of Haryana reported in 1984
(3) SCC 281, this Court was concerned with a service matter and with the
issue as to whether an amendment in the law could take away the vested
rights with retrospective effect. The Court held that such an amendment
would be invalid if it is violative of the present acquired or accrued
fundamental rights of the affected persons.
37. In the case of K.S. Paripoornan Vs. State of Kerala reported in
AIR 1995 SC 1012, a Constitution Bench of this Court was concerned with the
retrospective effect of Section 23(1A) introduced in the Land Acquisition
Act. While dealing with this provision, this Court has observed as
follows:-
“44. A statute dealing with substantive rights differs from a
statute which relates to procedure or evidence or is declaratory in
nature inasmuch as while a statute dealing with substantive rights is
prima facie prospective unless it is expressly or by necessary
implication made to have retrospective effect, a statute concerned
mainly with matters of procedure or evidence or which is declaratory in
nature has to be construed as retrospective unless there is a clear
indication that such was not the intention of the legislature. A
statute is regarded retrospective if it operates on cases or facts
coming into existence before its commencement in the sense that it
affects, even if for the future only, the character or consequences of
transactions previously entered into or of other past conduct. By
virtue of the presumption against retrospective applicability of laws
dealing with substantive rights transactions are neither invalidated by
reason of their failure to comply with formal requirements subsequently
imposed, nor open to attack under powers of avoidance subsequently
conferred. They are also not rendered valid by subsequent relaxations
of the law, whether relating to form or to substance. Similarly,
provisions in which a contrary intention does not appear neither impose
new liabilities in respect of events taking place before their
commencement, nor relieve persons from liabilities then existing, and
the view that existing obligations were not intended to be affected has
been taken in varying degrees even of provisions expressly prohibiting
proceedings. (See: Halsbury's Laws of England, 4th Edn. Vol. 44, paras
921, 922, 925 and 926).”
38. In the case of Gajraj Singh Vs. State Transport Appellate
Tribunal reported in AIR 1997 SC 412, the Court was concerned with the
provisions of Motor Vehicle Act and repealing of some of its provisions. In
para 30 referring to Southerland on Statutory Construction (3rd Edition)
Vol.I, the Court quoted the following observations:-
“30……Effect on vested rights
Under common law principles of construction and interpretation the
repeal of a statute or the abrogation of a common law principle
operates to divest all the rights accruing under the repealed statute
or the abrogated common law, and to halt all proceedings not concluded
prior to the repeal. However, a right which has become vested is not
dependent upon the common law or the statute under which it was
acquired for its assertion, but has an independent existence.
Consequently, the repeal of the statute or the abrogation of the common
law from which it originated does not efface a vested right, but it
remains enforceable without regard to the repeal.
In order to become vested, the right must be a contract right, a
property right, or a right arising from a transaction in the nature of
a contract which has become perfected to the degree that the continued
existence of the statute cannot further enhance its acquisition.……”
39. Having noted the aforesaid observations, it is very clear that
in the facts of the present case, the appellant’s status as a deemed tenant
was accepted under the state enactment, and therefore he could not be said
to be in “unauthorised occupation”. His right granted by the state
enactment cannot be destroyed by giving any retrospective application to
the provisions of Public Premises Act, since there is no such express
provision in the statute, nor is it warranted by any implication. In fact
his premises would not come within the ambit of the Public Premises Act,
until they belonged to the respondent No. 1, i.e until 1.1.1974. The
corollary is that if the respondent No. 1 wanted to evict the appellant,
the remedy was to resort to the procedure available under the Bombay Rent
Act or its successor Maharashtra Rent Control Act, by approaching the forum
thereunder, and not by resorting to the provisions of the Public Premises
Act.
When are the provisions of Public Premises Act to be resorted to?
40. In the context of the present controversy, we must refer to one
more aspect. As we have noted earlier in paragraph 63 of Ashoka Marketing,
the Constitution Bench has referred to the objects and reasons behind the
Public Premises Act wherein it is stated that it has become impossible for
the Government to take expeditious action even in ‘flagrant cases of
unauthorised occupation’ of public premises. The Court has thereafter
observed in that very paragraph that the Public Premises Act is enacted to
deal with mischief of ‘rampant unauthorised occupation’ of public premises.
41. It is relevant to note that there has been a criticism of the
use of the powers under the Public Premises Act, and the manner in which
they are used in an arbitrary way to evict the genuine tenants from the
public premises causing serious hardships to them. The Central Government
itself has therefore, issued the guidelines to prevent such arbitrary use
of these powers. These guidelines were issued vide Resolution No.
21012/1/2000-Pol.1, dated 30th May, 2002, published in the Gazette of
India, Part I, Sec.1 dated 8th June, 2002. They read as follows:-
”GUIDELINES TO PREVENT ARBITRARY USE OF POWERS TO EVICT GENUINE
TENANTS FROM PUBLIC PREMISES UNDER THE CONTROL OF PUBLIC SECTOR
UNDERTAKINGS / FINANCIAL INSTITUTIONS
1. The question of notification of guidelines to prevent arbitrary
use of powers to evict genuine tenants from public premises under the
control of Public Sector Undertakings/financial institutions has been
under consideration of the Government for some time past.
2. To prevent arbitrary use of powers to evict genuine tenants
from public premises and to limit the use of powers by the Estate
Officers appointed under section 3 of the PP(E) Act, 1971, it has been
decided by Government to lay down the following guidelines:
(i) The provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 [(P.P.(E) Act, 1971] should be used
primarily to evict totally unauthorised occupants of the premises of
public authorities or subletees, or employees who have ceased to be in
their service and thus ineligible for occupation of the premises.
(ii) The provisions of the P.P. (E) Act, 1971 should not be
resorted to either with a commercial motive or to secure vacant
possession of the premises in order to accommodate their own employees,
where the premises were in occupation of the original tenants to whom
the premises were let either by the public authorities or the persons
from whom the premises were acquired.
(iii) A person in occupation of any premises should not be treated or
declared to be an unauthorised occupant merely on service of notice of
termination of tenancy, but the fact of unauthorized occupation shall
be decided by following the due procedure of law. Further, the
contractual agreement shall not be wound up by taking advantage of the
provisions of the P.P.(E) Act, 1971. At the same time, it will be open
to the public authority to secure periodic revision of rent in terms of
the provisions of the Rent Control Act in each State or to move under
genuine grounds under the Rent Control Act for resuming possession. In
other words, the public authorities would have rights similar to
private landlords under the Rent Control Act in dealing with genuine
legal tenants.
(iv) It is necessary to give no room for allegations that evictions
were selectively resorted to for the purpose of securing an unwarranted
increase in rent, or that a change in tenancy was permitted in order to
benefit particular individuals or institutions. In order to avoid such
imputations or abuse of discretionary powers, the release of premises
or change of tenancy should be decided at the level of Board of
Directors of Public Sector Undertakings.
(v) All the public Undertakings should immediately review all pending
cases before the Estate Officer or Courts with reference to these
guidelines, and withdraw eviction proceedings against genuine tenants
on grounds otherwise than as provided under these guidelines. The
provisions under the P.P. (E) Act, 1971 should be used henceforth only
in accordance with these guidelines.
3. These orders take immediate effect.”
42. Thus as can be seen from these guidelines, it is emphasized in
Clause 2(i) thereof, that the Act was meant to evict (a) totally
unauthorised occupants of the public premises or subletees, or (b)
employees who have ceased to be in their service, and were ineligible to
occupy the premises. In Clause 2(ii), it is emphasized that the provisions
should not be resorted to (a) either with a commercial motive, or (b) to
secure vacant possession of the premises in order to accommodate their own
employees, where the premises were in occupation of the original tenants to
whom the premises were let out (i) either by the public authorities, or
(ii) by persons from whom the premises were acquired, indicating thereby
the predecessors of the public authorities. Clause 2 (iii) of these
guidelines is very important. It states on the one hand that it will be
open for the public authority to secure periodic revision of rent in terms
of the provision of the Rent Control Act in each state, and to move under
genuine grounds under the Rent control Act for resuming possession. This
Clause on the other hand states that the public authorities would have
rights similar to private landlords under the Rent Control Act in dealing
with genuine legal tenants. This clause in a way indicates that for
resuming possession in certain situations, where the tenants are protected
under the State Rent Control Act prior to the Public Premises Act becoming
applicable, the public authorities will have to move under the Rent Control
Acts on the grounds which are available to the private landlords. Clause
2(iv) seeks to prevent imputations or abuse of discretionary powers in this
behalf by stating that there should be no room for allegation that
evictions were selectively resorted for the purpose of securing an
unwarranted increase in rent or change in tenancy to benefit particular
individuals or institutions. It, therefore, states that the release of
premises or change of tenancy should be decided at the level of Board of
Directors of Public Sector Undertakings. Clause 2(v) goes further ahead
and instructs all public undertakings that they should review all pending
cases before the Estate Officer or Courts with reference to these
guidelines, and withdraw the proceedings against genuine tenants on grounds
otherwise than as provided under the guidelines.
43. The instructions contained in this Resolution are undoubtedly
guidelines, and are advisory in character and do not confer any rights on
the tenants as held in para 23 of New Insurance Assurance Company Vs. Nusli
Neville Wadia reported in 2008 (3) SCC 279. At the same time, the
intention behind the guidelines cannot be ignored by the Public
Undertakings which are expected to follow the same. When it comes to the
interpretation of the provisions of the statute, the guidelines have been
referred herein for the limited purpose of indicating the intention in
making the statutory provision, since the guidelines are issued to
effectuate the statutory provision. The guidelines do throw some light on
the intention behind the statute. The guidelines are issued with good
intention to stop arbitrary use of the powers under the Public Premises
Act. The powers are given to act for specified reasons, and are expected
to be used only in justified circumstances and not otherwise.
The overall consequence
44. In Ashoka Marketing (supra), this Court was concerned with the
premises of two Nationalised Banks and the Life Insurance Corporation. As
far as Life Insurance Corporation is concerned, the life insurance business
was nationalised under the Life Insurance Corporation Act, 1956.
Therefore, as far as the premises of LIC are concerned, they will come
under the ambit of the Public Premises Act from 16.9.1958, i.e the date
from which the Act is brought into force. As far as Nationalised Banks are
concerned, their nationalization is governed by The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970, and therefore, the
application of Public Premises Act to the premises of the Nationalised
Banks will be from the particular date in the year 1970 or thereafter. For
any premises to become public premises, the relevant date will be 16.9.1958
or whichever is the later date on which the concerned premises become the
public premises as belonging to or taken on lease by LIC or the
Nationalised Banks or the concerned General Insurance Companies like the
first respondent. All those persons falling within the definition of a
tenant occupying the premises prior thereto will not come under the ambit
of the Public Premises Act and cannot therefore, be said to be persons in
“unauthorised occupation”. Whatever rights such prior tenants, members of
their families or heirs of such tenants or deemed tenants or all of those
who fall within the definition of a tenant under the Bombay Rent Act have,
are continued under the Maharashtra Rent Control Act, 1999. If possession
of their premises is required, that will have to be resorted to by taking
steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If
person concerned has come in occupation subsequent to such date, then of
course the Public Premises Act, 1971 will apply.
45. It is true that Section 15 of the Public Premises Act creates
a bar of jurisdiction to entertain suits or proceedings in respect of
eviction of any person in an unauthorised occupation.
However, as far as
the relationship between the respondent No. 1, the other General Insurance
Companies, LIC, Nationalised Banks and such other Government Companies or
Corporations, on the one hand and their occupants/licencees/tenants on the
other hand is concerned, such persons who are in occupation prior to the
premises belonging to or taken on lease by such entities, will continue to
be governed by the State Rent Control Act for all purposes. The Public
Premises Act will apply only to those who come in such occupation after
such date.
Thus, there is no occasion to have a dual procedure which is
ruled out in paragraph 66 of Ashoka Marketing. We must remember that the
occupants of these properties were earlier tenants of the erstwhile
Insurance Companies which were the private landlords. They have not chosen
to be the tenants of the Government Companies. Their status as occupants
of the Public Insurance Companies has been thrust upon them by the Public
Premises Act.
46. This Court has noted in Banatwala and Co. Vs. LIC reported in
2011 (13) SCC 446 that the Public Premises Act, 1971 is concerned with
eviction of unauthorised occupants and recovery of arrears of rent or
damages for such unauthorised occupation, and incidental matters specified
under the act. As far as the Maharashtra Rent Control Act is concerned,
this Court noted in paragraph 25 of that judgment that as per the preamble
of the said Act, it is an Act relating to five subjects, namely (i) control
of rent, (ii) repairs of certain premises, (iii) eviction, (iv) encouraging
the construction of new houses by assuring fair return of investment by the
landlord, and (v) matters connected with the purposes mentioned above. In
that matter, the Court was concerned with the issue of fixation of standard
rent and restoration and maintenance of essential supplies and services by
the landlord. It was held that these two subjects were not covered under
the Public Premises Act, and infact were covered under the Maharashtra Rent
Control Act. Operative para 99(c) of the judgment therefore specifically
held as follows:-
“99 (c) The provisions of the Maharashtra Rent control
Act, 1999 shall govern the relationship between the public
undertakings and their occupants to the extent this Act covers the
other aspects of the relationship between the landlord and tenants,
not covered under the Public Premises Act, 1971.”
47. A judgment of a bench of three Judges of this Court in M/s
Jain Ink Manufacturing Company v. L.I.C reported in (1980) 4 SCC 435 was
relied upon by Mr. Raval. In this matter also a plea was raised on behalf
of the appellant tenant for being covered under the Delhi Rent Control Act,
1958 which came to be repelled. Mr. Raval stressed upon the observations
in Para 5 of the judgment to the effect that Section 2(g) merely requires
occupation of any public premises to initiate the action. Mr. Nariman on
the other hand pointed out that in the earlier part of the very paragraph
the Court had observed, although after referring to the provision of Punjab
Public Premises and Land (Eviction and Rent Recovery), Act 1959 that if the
entry into possession had taken place prior to the passing of the act, then
obviously the occupant would not be an unauthorized occupant. That apart,
Mr. Nariman submitted that the judgment was essentially on the second part
of Section 2(g) defining ‘unauthorised occupation’. It is, however,
material to note that in that case the premises were owned by LIC from
19.7.1958, i.e. prior to the Delhi Rent Control Act becoming applicable
from 9.2.1959. Besides, the issue of protection under a welfare legislation
being available to the tenant prior to the premises becoming public
premises, and the issue of retrospectivity was not under consideration
before the Court. The observations of the Court in that matter will have to
be understood in that context.
48. 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 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.
49. Learned senior counsel for the respondents Mr. Raval submitted
that the judgment of the Constitution Bench in Ashoka Marketing had
clarified the legal position with respect to the relationship between the
Public Premises Act and the Rent Control Act. However, as noted above, the
issue concerning retrospective application of the Public Premises Act was
not placed for the consideration of the Court, and naturally it has not
been gone into it. It was submitted by Mr. Raval that for maintenance of
judicial discipline this bench ought to refer the issue involved in the
present matter to a bench of three Judges, and thereafter that bench should
refer it to a bench of five Judges. He relied upon the judgment of this
Court in the case of Pradip Chandra Parija Vs. Pramod Chandra reported in
2002 (1) SCC 1 in this behalf. He also referred to a judgment of this
Court in Sundarjas Kanyalal Bhatija Vs. Collector, Thane, Maharashtra and
Ors. reported in 1989 (3) SCC 396 and particularly paragraph 18 thereof for
that purpose. What is however, material to note is that this paragraph
also permits discretion to be exercised when there is no declared position
in law. The Bombay Rent Act exempted from its application only the
premises belonging to the government or a local authority. The premises
belonging to the Government Companies or Statutory Corporations were
however covered under the Bombay Rent Act. This position was altered from
16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation)
Act, 1958 came in force which applied thereafter to the Government
Companies and Statutory Corporations, and that position has been reiterated
under the Public Premises Act of 1971 which replaced the 1958 Act. Under
these Acts of 1958 and 1971, the Premises belonging to the Government
Companies or Statutory Corporations are declared to be Public Premises.
Thus, the Parliament took away these premises from the coverage of the
Bombay Rent Act under Article 254(1) of the Constitution of India. This
was, however, in the matter of the subjects covered under the Public
Premises Act, viz. eviction of unauthorised occupants and recovery of
arrears of rent etc. as stated above. Thereafter, if the State Legislature
wanted to cover these subjects viz. a viz. the premises of the Government
Companies and Public Corporations under the Maharashtra Rent Control Act,
1999, it had to specifically state that notwithstanding anything in the
Public Premises Act of 1971, the Government Companies and Public
Corporations would be covered under the Maharashtra Rent Control Act, 1999.
If that was so done, and if the President was to give assent to such a
legislation, then the Government Companies and Public Corporation would
have continued to be covered under the Maharashtra Rent Control Act, 1999
in view of the provision of Article 254(2). That has not happened. Thus,
the Government Companies and Public Corporations are taken out of the
coverage of the Bombay Rent Act, and they are covered under Public Premises
Act, 1971, though from the date specified therein i.e. 16.9.1958. After
that date, the Government Companies and Public Corporations will be
entitled to claim the application of the Public Premises Act, 1971 (and not
of the Bombay Rent Act or its successor Maharashtra Rent Control Act,
1999), but from the date on which premises belong to these companies or
corporations and with respect to the subjects specified under the Public
Premises Act. In that also the public companies and corporations are
expected to follow the earlier mentioned guidelines.
50. We have not for a moment taken any position different from the
propositions in Ashoka Marketing. We are infact in agreement therewith,
and we are not accepting the submission of Mr. Nariman, that only
contractual tenancies were sought to be covered under that judgment, and
not statutory tenancies. Tenancies of both kinds will be covered by that
judgment, and they will be covered under the Public Premises Act for the
subjects specified therein. The only issue is with effect from which date.
That aspect was not canvassed at all before the Constitution Bench, and
that is the only aspect which is being clarified by this judgment. We are
only clarifying that the application of the Public Premises Act will be
only from 16.9.1958, or from such later date when concerned premises become
Public Premises on the concerned landlord becoming a Government Company or
Public Corporation. When the law laid down by the different Benches of
this Court including by the Constitution Benches on retrospectivity is so
clear, and so are the provisions of the Public Premises Act, there is no
occasion for this Court to take any other view. When this judgment is only
clarifying and advancing the proposition laid down in Ashoka Marketing,
there is no reason for us to accept the objections raised by Mr. Raval,
that the issues raised in this matter should not be decided by this bench
but ought to be referred to a larger bench.
51. In this context we may note that since the issue of
retrospective application of the Public Premises Act, to tenancies entered
into before 16.9.1958, or before the property in question becoming a public
premises, was neither canvassed nor considered by the bench in Ashoka
Marketing (supra), the decision does not, in any way, prevent this Bench
from clarifying the law regarding the same. This follows from the judgment
of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in
(2006) 5 SCC 167 wherein it was held that a decision, it is well-settled,
is an authority for what it decides and not what can logically be deduced
therefrom. The following observations of this court from paragraph 39 of
Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd.
reported in AIR1993 SC 43 are also pertinent:
“The judgment must be read as a whole and the observations from the
judgment have to be considered in the light of the questions which
were before this Court. A decision of this Court takes its colour from
the questions involved in the case in which it is rendered and while
applying the decision to a later case, the courts must carefully try
to ascertain the true principle laid down by the decision of this
Court and not to pick out words or sentences from the judgment,
divorced from the context of the questions under consideration by this
Court, to support their reasonings.
(emphasis supplied)
It is clear from a reading of the very first paragraph of Ashoka Marketing
that the question before it was ‘whether the provisions of the Public
Premises Act would override the provisions of the Rent Control Act in
relation to premises which fall within the ambit of both the enactments.’
The Court answered this in the affirmative, and we respectfully agree with
the same. However, Ashoka Marketing (supra) can not be said to be an
authority on the retrospective application of the Public Premises Act, or
where the premises fall within the ambit of only one act, as that issue was
not before the Court.
52. For the reasons stated above, we allow this appeal and set-
aside the impugned judgment and order dated 7.6.2010 rendered by the High
Court of Bombay in Writ Petition No. 2473 of 1996.
The said Writ Petition
shall stand allowed, and the judgment and order dated 17.1.1996 passed by
the City Civil Court, Mumbai, as well as the eviction order dated 28.5.1993
passed by the respondent No. 2 against the appellant will stand set aside.
The proceedings for eviction from premises, and for recovery of rent and
damages initiated by the first respondent against the appellant under the
Public Premises Act, 1971, are held to be bad in law, and shall therefore
stand dismissed.
We however, make it clear, that in case the respondents
intend to take any steps for that purpose, it will be open to them to
resort to the remedy available under the Maharashtra Rent Control Act,
1999, provided they make out a case therefor. The parties will bear their
own costs.
…………………………………..J.
[ H.L. Gokhale ]
……………………………………J.
[ J. Chelameswar ]
New Delhi
Dated: February 11, 2014
-----------------------
60
