Navroz Kershasp Mody & anr. v. Life Insurance Corporation of India

We have heard Counsel for the parties. After going through the relevant record and, in particular, the finding recorded by the Appropriate Authority as well as of the learned Single Judge, we find no reason to interfere or to reverse the said opinion and conclusion reached by the learned Single Judge.

2. The principal contention of the appellants is that the appellants have become deemed tenant by virtue of the fact that the appellants have been staying alongwith the recorded tenant and continued to stay vss 1 of 7 lpa.285.2012.sxw after the demise of the recorded tenant as well as his wife until the impugned show-cause notice under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was issued by the Corporation.

3. The stand regarding the appellants having become deemed tenants is based on two factual assertions. One is on the basis of the occupation of the premises all alongwith the recorded tenant; and the second is on the basis of will executed by Dina Madan, wife of the recorded tenant dated 5.6.1975, who, later on expired on 5.1.1977.

4. Taking the first ground pressed into service, it is not in dispute that the Respondent – Corporation became owner of the premises in question and the building, wherein the premises are situated, on

22.12.1968. The provisions of the Public Premises Act came into force w.e.f. 1971 which became applicable to the subject premises. In the Act of 1971, there is no corresponding provision of occupant becoming deemed tenant or of inheritance by family member staying at the time of death of the recorded tenant as in the case of Rent Act u/s 5(11)(c). Thus understood, the argument of the appellants of having become deemed tenant by virtue of provisions of the Rent Act is unavailable. The second ground pressed into service is of having inherited the tenancy rights by the appellants by virtue of will executed by the wife of vss 2 of 7 recorded tenant dated 5.6.1975 after the demise of Dina Madan on lpa.285.2012.sxw

5.1.1977.

5. In the first place, if the appellants are relying on the provisions of the Bombay Rent Act, it is well established position that tenancy rights cannot be willed away. Inheritance of tenancy by virtue of will executed by the tenant is impermissible. In any case, the fact that the legal heir of the recorded tenant was alive till 1977 is good reason for rejecting the argument of the appellants that the appellants have become deemed tenants by virtue of the amended provisions of the Rent Act brought into force w.e.f. February, 1973. Suffice it to observe that there is no tangible reason for departing from the opinion recorded by the Appropriate Authority as well as the learned Single Judge of this Court that there was no authorisation given by the Respondent Corporation to occupy the premises alongwith the recorded tenant or his legal heir and representative Dina, who expired on 5.7.1977. It is a different matter that there was some correspondence exchanged between the appellants and the respondent – Corporation. Exchange of correspondence would not create any legal right in favour of the appellants, much less, that of having become deemed tenant, as is contended.

6. In our opinion, therefore, although the Court may express its vss 3 of 7 lpa.285.2012.sxw sympathy for the appellants, in absence of any legal right to occupy the premises, the action taken by the respondent – Corporation of evicting the occupants who are in unauthorized occupation is legal and permissible. No interference in that behalf is warranted.

7. We may also advert to another issue that was argued by the learned Counsel for the parties. Counsel for the appellants contended that the Appropriate Authority of the Respondent – Corporation in exercise of powers under the provisions of the Act of 1971 was obliged to consider the claim of the appellants of having become deemed tenants by virtue of the provisions of the Bombay Rent Act. Counsel for the Respondent – Corporation has justly pressed into service exposition of the learned Single Judge of this Court in the case of Pradeep Babubhai Chinai & Anr. v. Sindhu Resettlement Corporation Ltd., Bombay & Ors., 2010 A I H C 1451, which has taken the view that the only enquiry permissible in relation to the public premises by the Authority is whether occupant of premises is authorised or unauthorized and not with reference to any matter referred to in the provisions of the Bombay Rent Act. Even for this reason, the argument pressed into service by the appellants is devoid of merits. Counsel for the Respondent had also relied on observations made in the unreported decision of Division Bench of this Court to which, one of us (Mrs.Mridula Bhatkar, J.), was a Member, in the case of M/s.Rai & Co. vss 4 of 7 lpa.285.2012.sxw vs. Life Insurance Corporation & Ors., Writ Petition No.2333 of 2010 decided on 12.7.2010 and in particular, paragraph 9 in support of the argument that in absence of authority given to the appellants to occupy the premises, the occupation of the premises by the appellants was unauthorized justifying action of eviction resorted to under the provisions of the Act of 1971.

8. Considering the above, no interference is warranted. Hence, the Appeal is dismissed.

9. In view of the dismissal of Appeal, Civil Application No.468 of 2012 is also disposed of.

10. While parting, we may place on record that during the pendency of this Appeal, in view of the observations made by the learned Single Judge in the impugned judgment, the appellants had preferred regularisation application. However, the said regularisation application has been rejected by the Corporation on 8.12.2012. If the appellants are aggrieved by the said decision, they are free to pursue such remedy, as may be permissible in law. To enable the appellants to pursue that remedy, we may keep the order of eviction in abeyance for a period of 12 weeks from today on the appellants submitting usual undertaking within one week. We also make it clear that all questions with regard to the regularisation will have to be decided on its own vss 5 of 7 merits in accordance with law. We are not expressing any opinion in lpa.285.2012.sxw that behalf.

11. After this order was dictated, Counsel for the appellants, now, requested the Court to make mention of the argument canvassed by the appellants that the respondent – Corporation has neither pleaded nor established the fact of subletting and parting of possession for which reason, the action against the appellants was unwarranted. In the show-cause notice, it is, however, stated that Shri S.B. Madan during his lifetime and thereafter OP1 in violation of terms and conditions of monthly tenancy, sublet and parted with possession of the scheduled premises to OP2 and OP3 without permission or consent of the Corporation. This, in our opinion, is the basis on which the final order has been passed by the Authorised Officer and confirmed by the learned Single Judge. In the circumstances, there is no merit in this grievance of the appellants.

12. Counsel for the respondent – Corporation requested the Court to consider imposing condition on the appellants to furnish bank guarantee to the extent of around of Rs.28 lacs as the appellants have deposited only around Rs.2 lacs as against the demand of over Rs.30 lacs in the order passed by the Appropriate Authority. We find this request as reasonable, considering the fact that the appellants are now vss 6 of 7 lpa.285.2012.sxw wanting to pursue the matter against the order passed by the Appropriate Authority of the Respondent – Corporation of rejecting the regularisation proposal submitted by the appellants. Moreover, having dismissed the present Appeal, the appellants will have to make provision to secure the payment of amount liable to be paid in terms of the impugned decision, which was the subject matter of challenge in this Appeal. Besides giving usual undertaking, the appellants shall furnish bank guarantee within eight weeks from today for a sum of Rs.28 lacs of a nationalised bank, which can be invoked by the Corporation if and when required and subject to order of the Court where the regularisation order will be challenged by the appellants, failing which the Corporation would be free to proceed in the matter in accordance with law.

13. At this stage, Counsel for the appellants submits that the appellants may consider of challenging this decision before the Apex Court. The appellants are free to pursue such remedy as may be advised. In view of the protection already extended to the appellants in terms stated hitherto, nothing more is required to be done.

14. Appeal is disposed of accordingly. (MRIDULA BHATKAR, J.) (A.M. KHANWILKAR,J.) vss 7 of 7