Property - Eviction proceedings under Public Premises Act, 1971 - Correctness thereof under challenge - 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')? - Whether the tenants as well as licencees, who are protected under the respective State Laws could be termed as unauthorised occupants by applying the provisions of Public Premises Act to the premises as 'belonging' to a Government Company? - What date should be determined as the date since when the Public Premises Act can be held as effective? - Held, Public Premises Act came into effect after repealing the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, its predecessor Act - As per the provision contained therein it would be deemed to have come into force on the 16th day of September, 1958 except sections 11, 19 and 20 which became effective at once i.e. from 23.8.1971 accordingly they would be applicable to the concerned premises only from the date when they become public premises - In the instant case the management of the Insurance Company was taken over by the Central Government with effect from 13th May, 1971 and had appointed the custodian to take all such necessary steps to safeguard the property of the erstwhile insurance Company - Public Premises Act providing for a speeder remedy cannot render the provisions of the welfare provisions nugatory - Legislation cannot be given a retrospective effect unless it is specifically provided for and that too not beyond the period provided therein - Accordingly, the status of the occupant was that of a deemed tenant under the Rent Act and based thereupon he could not be said be in unauthorised occupation and his such right cannot be taken away by giving any retrospective effect to the provisions of Public Premises Act - As per the guidelines issued by the Central Government vide Resolution No. 21012/1/2000-Pol.1, dated 30th May, 2002 the aim is to evict totally unauthorised occupants of the public premises or sub-letees, or employees who have ceased to be in their service, and thus ineligible to occupy the premises - Provisions of Public Premises Act should not be resorted to 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 out either by the public authorities, or by persons from whom the premises were acquired, indicating thereby the predecessors of the public authorities - Guidelines further provides for to resume 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 and the release of premises or change of tenancy should be decided at the level of Board of Directors of Public Sector Undertakings - It further provides that all public undertakings have been instructed 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 - Thus, Government Companies and Public Corporations are covered under Public Premises Act, 1971 from 16.9.1958 and effective this date they would be entitled to claim the application of the Public Premises - Appeal was accordingly allowed and the impugned judgment was set-aside - 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 held to be bad in law - It was clarified that in case the Respondents intend to take any steps for that purpose, it would be open to them to resort to the remedy available under the Maharashtra Rent Control Act, 1999, provided they make out a case therefor
REPORTABLEIN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1970 OF 2014
Dr. Suhas H. Pophale Vs Oriental Insurance Co. Ltd.
Bench: H.L. Gokhale, J. Chelameswar
Dated:11 February, 2014
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
Page 3
4
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
companies.
and
that
of
other
private
insurance
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
Page 4
5
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
Page 5
6
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,
Page 6
7
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
Page 7
8
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
Page 8
9
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.
Page 9
10
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
Page 10
11
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.
Page 11
12
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
Page 12
13
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),
Page 13
14
(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
Page 14
15
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.
Page 15
16
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
Page 16
17
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 Public
the
eviction
proceedings
under
the
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
Page 17
18
earlier mentioned correspondence between the appellant and
the erstwhile insurance company.
14.
Raval,
Learned senior counsel for the respondents Mr.
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
Page 18
19
Public Premises Act vis-Ã -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
Page 19
20
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.
Corporation,
which
is
a
Statutory
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:-
Page 20
21
“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:-
Page 21
22
“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
Page 22
23
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.
3
Mamanchand
Ratilal
Agarwal
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.
19.
(1980) 3 SCC 162 : (1980) 3 SCR 224,
4. (1988) 4 SCC 324
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
Page 23
24
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
Page 24
25
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
Page 25
26
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:-
Page 26
27
“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
Page 27
28
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)
Page 28
29
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
Page 29
30
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
Page 30
31
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,
are
is whether the tenants as well as licencees, who
protected
under
the
State
Law,
could
be
called
Page 31
32
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).
penalties.
Section 11 deals with offences and
Section 19 is the repealing Section as stated
above, and Section 20 is the section on validation of any
Page 32
33
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,
Page 33
34
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. 13 th 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
Page 34
35
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
Page 35
36
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
Page 36
37
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
Page 37
38
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
Page 38
39
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
governance
better
of
Shri
management,
Mata
Vaishno
administration
Devi
Shrine,
and
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.
Page 39
40
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
Page 40
41
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
Page 41
42
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,
Page 42
43
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
Page 43
44
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
reported in AIR 1951 SC 124).
Reddy
Vs.
The State
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,
Page 44
45
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
Page 45
46
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......”
Page 46
47
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
Page 47
48
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
Page 48
49
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
Page 49
50
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 (3 rd 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
Page 50
51
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
Page 51
52
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
Page 52
53
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 30 th May, 2002,
published in the Gazette of India, Part I, Sec.1 dated 8 th 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
Page 53
54
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.”
Page 54
55
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
Page 55
56
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
Page 56
57
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
Page 57
58
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
Page 58
59
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
Page 59
60
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
Page 60
61
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
Page 61
62
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
Page 62
63
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
Page 63
64
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
Page 64
65
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
Page 65
66
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).
happened.
That has not
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
Page 67
68
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
Page 68
69
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
observations
be
of
deduced
this
court
therefrom.
from
The
paragraph
following
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
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