Vishwas Krishnarao Gangurde v. Bank of India

3) The landlord, Bank of India, requires the premises for its own use. Now, therefore, in pursuance of sub-section (1) of section 4 of Public Premises (Eviction of unauthorized occupants) Act 1971, I hereby call upon you to show cause on or before 21.06.2019 why such an order of eviction should not be made. In pursuance of clause (b) (ii) of subsection (2) of Section 4, I also call upon you to appear before me in person or through a duly authorized representatives capable to answer material questions connected with the matter along with the evidence which you intend to produce in support of the cause shown on 24.06.2018 at 11.30 a.m. at Bank of India, Pune Zonal Office, 1162/6, Shivajinagar, near Observatory, University Road, Pune-411005 for personal hearing. In case, you fail to appear on the said date and time, the case will be decided exparte.

SCHEDULE Shop premises situated on ground Floor at CTS No.761, Sadashiv Peth, Kumthekar Road, Pune-411030. Date: 12th June 2019 13) The notice issued under section 4(1) of the PP Act specified three grounds for seeking eviction of the petitioner (i) occupation of premises by the petitioner (ii) non-payment of rent for many years (iii) requirement of Bank of India of the premises for its own use. Under Section 4 of the PP Act, the Estate Officer needs to issue a notice upon receipt of information regarding unauthorized occupation of public premises to show cause as to why an order of eviction should not be made. The notice must specify the ground(s) of eviction, which is proposed to be made and must provide the opportunity to the noticee to appear before the Estate Officer and show cause. Section 4 of the PP Act provides thus:

4. Issue of notice to show cause against order of eviction.— (1) If the estate officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing within seven working days from the date of receipt of the information regarding the unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made. (1A) If the estate officer knows or has reasons to believe that any person is in unauthorised occupation of the public premises, then, without prejudice to the provisions of sub-section (1), he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of eviction should not be made. (1B) Any delay in issuing a notice referred to in sub-sections (1) and (1A) shall not vitiate the proceedings under this Act.] (2) The notice shall— (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,—

(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not 5[later than] seven days from the date of issue thereof, and

(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.

14) The Notice under Section 4 was issued on 12 June 2019 and the date of hearing was fixed as ‘24 June 2018’. It is therefore contended on behalf of the Petitioner that the Notice itself was faulty and that the Petitioner was denied an opportunity of hearing which is mandatory under Section 4 of the PP Act. Mr. Kadam has however clarified the position by contending that the year ‘2018’ is indicated in the date fixed for hearing in the notice by way of an inadvertent error and the hearing was actually fixed on 24 June ‘2019’. I am inclined to accept the justification for variety of reasons. Firstly, Petitioner replied the notice on 16 July 2019. He failed to raise any grievance with regard to fixation of hearing on ‘24.06.2018’. Petitioner thus rightly understood that the hearing was actually fixed on 24 June 2019. Far from raising any issue relating to the date, Petitioner actually dealt with the grounds of eviction on merits. Even in Appeal Memo filed before the District Court, Petitioner did not raise the issue of fixation of date of hearing on 24 June 2018. It was not the case of the Petitioner either before the Estate Officer or before the District Judge that no hearing was ever conducted or that hearing was already conducted before the issuance of the notice. On the contrary, the eviction order indicates that the notices were issued to 8 different occupants in respect of 8 different premises. Except the Petitioner, all other noticees appeared before the Estate Officer. As observed above, Petitioner submitted his response to the show cause notice. It appears that other occupants requested for adjournment of hearing and accordingly two dates of hearing were fixed by the Estate Officer. Therefore, mere inadvertent error in the year of hearing reflected in show cause notice does not enure to the benefit of the Petitioner.

15) The next ground urged by the Petitioner is that the show cause notice was vague and lacked material particulars. It is contended that the first ground for eviction of ‘occupation of premises by the Petitioner’ cannot be ground of eviction. I am unable to agree. What is meant in ground no. 1 is that though the tenant in respect of the premises was Shri. Doiphode, Petitioner was found to be in occupation of the premises. Thus, the reason of subletting is actually reflected in the first ground. Petitioner was required to show in authority in which he entered into the premises and was occupying the same. The Petitioner fully understood this ground and accordingly submitted his response relying on Sale Deed dated 25 August 992. Petitioner thus attempted to show the authorized nature of his possession of the premises and it therefore cannot be contended that the first ground of eviction reflected in the show cause notice is vague as sought to be alleged.

16) The second ground of eviction in the show cause notice was about non-payment of rent for many years. Mr. Bhirange fairly accepts the position that the Petitioner or the tenant-Doiphode had not paid any rent in respect of premises for quite some time. He however submits that “non-payment” of rent was clearly attributable to the actions of the earlier landlord-Karad Bank Ltd., which had gone in liquidation and there was no certainty about the exact person/entity to whom the rent was to be paid. He submits that “non-payment” of rent is not a deliberate overt act on the part of the Petitioner. In my view, “nonpayment” of rent in respect of the premises is clearly fatal to the case of the Petitioner. The eviction order records that “they also admitted that rent has not been paid by them after passing of eviction decree against them”. As observed above, the eviction decree was passed by the Appellate Court on 12 September 1972. Thus, from 1972 till passing of Eviction Order on 8 July 2019. the rent in respect of the premises was not paid for 47 long years. Even after alleged purchase of goodwill and stock-in-trade by the Petitioner in 1992, no attempt was even made by him to pay the rent. Once the act of non-payment of rent is admitted, Petitioner cannot be permitted to raise the ground of vagueness. The case does not involve any dispute in respect of period of non-payment of rent. There is therefore sufficient clarity in the ground of nonpayment of rent in the show cause notice, which cannot be termed as vague by any stretch of imagination.

17) So far as the last ground of bonafide requirement of Bank of India is concerned, I am unable to accept the contention raised on behalf of the Petitioner that the finding recorded by the Small Causes Court on the issue of bonafide requirement of Bank of Karad would operate as res-judicata for the Estate Officer while deciding the requirement of Bank of India. No doubt, the Small Causes Court rejected the ground of bonafide requirement of Bank of Karad. However, bonafide requirement is a continuous phenomenon and even if requirement at a particular point of time is rejected, the same does not mean that bonafide requirement can never arise again in future. Therefore, the principle of res-judicata would not apply to a case involving continuous injury within the meaning of Section 22 of the Limitation Act.

18) So far as permissibility to evict a protected tenant under the provisions of PP Act after purchase of the premises by Government / Government organization is concerned, the issue was earlier Governed by the judgment of the Apex Court in Dr. Suhas H. Pophale (supra). However, the reference was made to the Larger Bench about correctness of the ratio in Dr. Suhas H. Pophale and the reference has been answered by three Judge Bench decision in LIC V/s Vita (supra). The issue before the larger bench is captured in paragraphs 1.[1] to 2 and 2.[1] of the judgment, which read thus:- 1.[1] The referral order dated 17.03.2015, aforementioned, reads as under, "In these petitions, in fact, the ratio decided by the two- Judge Bench of this Court in the case of Suhas H. Pophale vs. Oriental Insurance Company Limited and its Estate Officer[2], is contrary to the decision of the Constitution Bench rendered in the case of Ashoka Marketing Ltd. And Another vs. Punjab National Bank and Ors.3. Therefore, these matters need to be heard by a three-Judge Bench.” Issue Under Reference:-

2. The principal question that arises for determination in this batch of matters is whether the provisions of the PP Act 1971 would prevail over the respective State Rent Control legislations, in relation to premises let out prior to the commencement of the said Act, as against the premises let out after its enforcement but before their acquisition or transfer to the Government or any statutory corporation, by which the character of such premises stood transformed into "public premises" within the meaning of the Act. 2.[1] In other words, the issue that falls for determination is whether, for the purposes of application of the PP Act 1971, a valid distinction can be made between tenants who were in occupation of the premises prior to the enforcement of the said Act and those who entered into occupation subsequent thereto but before such premises were taken over by the Government or a Government Corporation, as the case may be; and whether in such cases, the operation of the PP Act 1971 is intended to be only prospective in nature.

19) The Hon’ble Apex Court held that the judgment in Dr.Suhas H. Pophale (supra) is in direct conflict with the ratio of the judgment of the Constitution Bench in Ashoka Marketing Ltd. V/s Punjab National Bank[4] and three Judge Bench decision in Jain Ink Manufacturing Company v. Life Insurance Corporation of India & Anr[5]. The three Judge Bench in

LIC V/s Vita (supra) held that the PP Act on one hand and the Bombay Rent Control Act, 1947, Maharashtra Rent Control Act 1999, Delhi Rent Control Act 1958 and other similar Rent Control Legislations, on the other hand, are special laws. It is further held that having regard to the purpose, policy and legislative intent of the PP Act, the same would prevail over State Rent Control Acts in respect of eviction of unauthorized occupants of ‘Public Premises’. It is further held that the person in unauthorized occupation of public premises cannot invoke protection of the Rent Control Act. The conclusions drawn and answer to the issue in paragraphs 12 and 13 of the judgment are as under:- Conclusions

12. In view of the foregoing discussion, reasons and analysis, the following positions of law emerges, (a) In view of the law laid down by the Constitution Bench in Ashoka Marketing and the three-Judge Bench decision in M/s. Jain Ink, the view taken in Suhas H. Pophale which is a two-Judge Bench decision, is palpably incorrect and unjustified. Suhas H. Pophale cannot and does not hold the field. (b) Since, the propositions laid down in Suhas H. Pophale runs contrary to the decisions laid down by the Benches of larger strength in Ashoka Marketing and M/s. Jain Ink, the same is bad in law.

(c) The ratio decidendi by the Bench of larger strength is binding on the Bench of the smaller strength, irrespective of the fact whether the judgment by the Bench of the larger strength is apriori or posterior, in point of time.

(d) A Bench of the smaller strength cannot mark a departure from the decision of the Bench of larger strength, so as to vary the ratio of the Bench of larger strength, in guise of explaining the decision of the larger Bench. (e) It was not permissible for the two- Judge Bench in Suhas H. Pophale to interpret the statutes and lay down propositions in conflict with what was laid down by the Constitution Bench in Ashoka Marketing and by a three-Judge Bench in M/s. Jain Ink, when the set of material facts in the background of the controversy dealt with, were similar. (f) In laying down the propositions incongruent to and contrary to the law laid down in Ashoka Marketing, the Bench in Suhas H. Pophale disregarded the principle of stare decisis and violated the well settled law of precedent. Answers

13. As a sequitur, this Court reiterates the propositions of law laid in Ashoka Marketing

(i) Both categories of statutes namely, the PP Act 1971 on one hand, and the Bombay Rent Control Act, 1947, Maharashtra Rent Control Act, 1999, Delhi Rent Control Act, 1958 and similar Rent Control Legislations, on the other hand, are special laws. Therefore, in order to determine as to which Act will apply in case of conflict, reference has to be made to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. Keeping in view the object and purpose underlying both the enactments, that is, the PP Act 1971 and the Rent Control Acts, the provisions of the PP Act 1971 shall override the provisions in the Rent Control Legislations.

(ii) The PP Act 1971 and the State Rent Control Acts are special enactments in themselves. Rule generalia specialibus non derogant will not apply. Having regard to the purpose, policy and legislative intent of the PP Act 1971, the same would prevail over the State Rent Control Acts in respect of eviction of 'unauthorised occupants' of 'public premises' as defined in Section 2(g) of the Act.

(iii) The provisions of PP Act 1971, to the extent they cover the premises falling within the ambit of Rent Control Act, override the provisions of the Rent Control Act.

(iv) A person in unauthorised occupation of 'Public Premises' under

(v) In cases where the tenanted premises are claimed to be governed by the State Rent Control Act and the same have also become 'Public Premises' within the meaning in Section 2(e) of the PP Act 1971, for their unauthorised occupation, the PP Act 1971 will have the application.

(vi) The statutory machinery envisaged under the PP Act 1971, could be activated for recovery of possession of public premises by any Government or public entity mentioned in the definition.

(vii) The PP Act 1971 will apply to the tenancies which may have been created and in existence either before coming into force of the Act or which may have been created subsequent to coming into the force of the Act.

(viii) Two conditions must be satisfied for the applicability as above.

Firstly, the tenanted premises must fall within the purview of definition under Section 2(e) of the PP Act 1971. Secondly, the premises should have been in unauthorised occupation.

(ix) Termination of tenancy of 'Pubic Premises' by issuing notice under Section 106 of the Transfer of Property Act, 1882 is one of the modes which would render the occupation of the tenant unauthorised, post the date specified in such notice. This would hold true in respect of tenancies created before or after coming into force of the PP Act 1971.

(x) Invocation and applicability of the provisions of the PP Act 1971 is not dependent upon the aspect of possession. What is material is the occupation of the premises which has become unauthorised occupation. The occupation is a continuous concept.

(xi) The propositions enunciated in Suhas H. Pophale, as noticed in paragraph 3.3.[6] of this judgment, do not, in our considered view, state the correct position of law. The observations made therein, with great respect, are not in consonance with the settled legal principles and runs contrary to the principle of stare decisis and stand overruled to that extent.

20) Thus, it is no more res-integra that a person in unauthorized occupation of public premises under Section 2(e) of the PP Act cannot invoke protection of either Bombay Rent Act or Maharashtra Rent Control Act. Therefore, reliance by the Petitioner on the decree passed by the Small Causes Court, as modified by the District Court, rejecting all other grounds for eviction except Section 14(1)(hh) of the Bombay Act is clearly misplaced.

21) The District Court has also taken note of the fact that the Petitioner himself is no longer in occupation of the premises. Petitioner is not the original tenant and claims to have acquired tenancy rights along with goodwill and stock-in-trade from the original tenant. This is a sort of indirect subletting which this court has dealt with in Smt. Julia Rodrigues (since deceased by her heirs and legal representatives-1(A) Dr. Uma Pradeep Divate V/s Smt. Chandra Gulab Advani and Ors.[6] In that case, the tenant had purchased the tenancy rights alongwith goodwill and stock-in-trade in similar fashion for running of a laundry, whereas business of selling optical products was noticed in the suit premises by an altogether different entity. The present case involves similar circumstances though the issue is not about eviction of tenant either under Bombay rent Act or under Maharashtra Rent Control Act. In paragraph 13 of its judgment, the District Court has taken note of the fact that one Smt. Supriya Shreyas Kamble is found to be occupying the premises, who runs the business in the name of M/s Isha’s Collection. As observed above, the original tenant was running the business of selling footwear whereas an altogether different business (possibly of ladies readymade garments) is found to be conducted in the premises that too by a distinct person Smt. Supriya Shreyas Kamble. In paragraph 13 of the Judgment, learned District Judge has held as under:

13. The appellant in para no. 5 of his appeal mentioned that the Estate Officer had issued a notice dated 12.06.2019 but it was served on Mr. P. D. Kamble who is in fact not at all concerned with suit premises as tenant. It is surprising to note that appellant himself produced shop Act license of his snack center obtained on 23.10.1993. Thus the business which the appellant was carrying in the suit premises was totally different than the business which Mr. Doiphode was carrying in it. Therefore, there is no meaning in saying that he had purchased tenancy right along with stock in trade and goodwill of business of Mr. Doiphode. It is further material to note that appellant himself produced zerox copy of shop act license of firm M/s Isha’s collection issued in the name of Supriya Shreyas Kamble. He failed to explain what concern she has got with the suit premises. These facts and circumstances and documents clearly show that deed of assignment of tenancy right

6 Writ Petition No. 6679 of 2003 decided on 7 October 2024 got executed from original tenant Mr. Doiphode is merely an eye wash. Actually, Supriya Kamble is running business of Isha’s collection in the suit premises. The appellant in his appeal nowhere explained in what capacity Supriya Kamble is running her business in that shop. Therefore there is no merit in the contention of appellant that tenancy rights of Mr. Doiphode in respect of suit premises was lawfully acquired by him.

22) Mr. Bhirange has sought to contend that the eviction has been ordered on the ground which is not reflected in the show cause notice and reliance is placed on judgment of Division Bench of Jammu and Kashmir High Court in Dr. Yash Paul Gupta (Supra). However, perusal of the eviction order would indicate that the same does not travel outside the grounds specified in the show cause notice. The Estate Officer has taken into consideration the factum of non-payment of rent and need of the Bank for additional space. Both the grounds were reflected in notice under Section 4 of the PP act. Therefore, it cannot be contended that eviction is ordered on the grounds not specified in the show cause notice.

23) Considering the overall conspectus of the case, I am of the view that no serious error can be traced in the order passed by the District Court dismissing the Appeal. It must also be noted that the Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India. The jurisdiction under Article 227 is supervisory and corrective in nature, in exercise of which, this Court need not correct every error of law or fact. So long as this Court is satisfied with the ultimate outcome of a case, power under Article 227 need not be exercised merely because any error of fact or law is demonstrated in the order under challenge. The Apex Court in judgment of Garment Craft V/s. Prakash Chand Goel[7] has held in paragraph 15 as under:-

15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

24) In the present case, this Court cannot turn a blind eye to the fact that the Petitioner has gained entry into the premises, which were never let out to him by the erstwhile landlord-Bank of Karad. He has secured possession under the guise of purchase of goodwill and stockin-trade. No rent is paid in respect of the premises since 1972, i.e., for the last 54 long years. Petitioner/his legal heirs themselves do not run the originally purchased business of selling footwear. The things did not end here. Petitioners have further let out the premises to a third person-Smt. Supriya Suresh Kamble, who runs an altogether different business under the trade name- M/s Isha’s Collection. The case thus involves unauthorised subletting twice. This conduct on behalf of

Petitioner otherwise does not entitle him to any relief in exercise of jurisdiction under Article 227 of the Constitution of India. The owner of the premises must receive the possession thereof at some point of time and cannot haplessly watch the premises being freely passing hands from one person to another and from one business to another. This court is otherwise satisfied with the ultimate outcome of the proceedings before the District Judge, which has not committed any serious jurisdictional error while deciding the Appeal nor has recorded any perverse findings while upholding the Eviction Order. Therefore, order of the District Judge appears, to my mind, to be unexceptional and the Petition is devoid of any merits. The Petition therefore must fail.

25) Resultantly, Petition fails and is dismissed without any order as to costs. [SANDEEP V. MARNE, J.]

26) After the judgment is pronounced, Mr. Bhirange, the learned counsel appearing for the Petitioner seeks stay to the judgment for a period of eight weeks. The request is opposed by Mr. Kadam, the learned counsel appearing for the Respondent. Considering the nature of findings recorded in the judgment, the request for stay to the judgment is rejected. [SANDEEP V. MARNE, J.]