Life Insurance Corporation of India v. Niloufer Marshall

12. Learned counsel for the applicant also relied upon the decision of the Hon’ble Apex Court in the case of Vinodchandra Sakarlal Kapadia Vs. State of Gujarat and Ors[6]. He submits that the Hon’ble Apex Court has held that the term assignment includes testamentary disposition as well a transfer cannot be restricted to inter-vivos transactions. Learned counsel for the applicant, therefore, submits that by applying the same legal principles, the disposition in the present case, by way of a Will executed by Dr Bharucha, cannot be termed as a valid disposition. Hence, an assignment by way of Will would amount to a breach of the terms of the tenancy.

13. Learned counsel for the applicant relied upon the decisions of the Hon’ble Apex Court in New India Assurance Company Ltd Vs. Nusli Neville Wadia and Anr[7] and Syndicate Bank Vs. Ramachandra Pillai and Ors[8] and submitted that the Government guidelines are non-statutory and advisory in character. Hence, the guidelines confirm no right on an occupant of the public premises. According to the learned counsel for the applicant for termination of tenancy under the said Act, no reasons are required as the notice of termination is issued under Section 106 of the Transfer of Property Act. To support his submissions, learned counsel for the applicant relied upon the decision of the Hon’ble Apex Court in the case of Jiwan Das Vs. Life Insurance Corporation of India and Anr[9].

14. Learned counsel for the applicant submitted that in the present case, the show cause notice for eviction was issued by the Estate Officer on a prima facie satisfaction that the occupant is in unauthorised occupation and thus should be evicted. As held by the Hon’ble Apex Court in New India Assurance Company fairness, reasonableness, etc. needs to be observed, only if the noticee had any authority to occupy, and the tenancy is terminated. To support his submissions, the learned counsel for the applicant relied upon the decision of the Hon’ble Apex Court in the case of 9 1994 Supp (3) SCC 694 Minoo Framroze Balsara v. The Union of India and Ors10. Learned counsel for the applicant also relied upon the decisions in the case of Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Anr11, Crawford Bayley and Co and Others Vs. Union of India and Ors12 and Kaiser-I-Hind Pvt. Ltd. Vs National Textile Corporation13 to support his submissions that the said Act prevails upon the Rent Act.

15. He submitted that in the present case, the occupant is not a close relative of Dr Bharucha, as she herself had stated that she is the daughter of Dr Bharucha’s cousin. Section 55 of the Indian Succession Act applies to Parsis. Part II of the Schedule II of the Act lists out the heirs for the persons who have no widow and lineal descendants, which includes father, mother, brother, sisters and paternal and maternal grandparents. A perusal of Dr Bharucha's will show that he has mentioned his sister, Tehmina and nephew, Rustom. He thus submitted that in the present case, the occupant cannot claim to have become a tenant by virtue of the provisions of the Rent Act.

16. The show cause notice issued by the Estate Officer and the grounds mentioned therein are in compliance with the provisions of the said Act. Once the terms and conditions of the tenancy came into play, the findings recorded by the Appellate Court holding that the occupant would have the right to continue in the premises as a tenant would not be sustainable. He submits that the Appellate Court has misread the legal principles settled in the decision of Vasant Pratap Pandit. There is a fallacy in the observation made by the Appellate Court. If the provisions of the Transfer of Property Act would apply, there is no question of applying Section 5(11)(c) of the Rent Act. He submits that, as per the well-settled legal principles, the scope and object of the said Act are quite different from that of the Rent Act, and thus, the Rent Act, which has a much wider application than the said Act, would not fall within the limited interpretation indicated in Section 2 (g) of the said Act. It is held that the object of the Rent Act is to offer special protection to all tenants or private landlords who are neither the corporation nor the government nor corporate bodies. Hence, according to the learned counsel for the applicant, the occupant would not be entitled to claim any right in respect of the subject premises by relying upon the provisions of the Rent Act.

17. Learned counsel for the applicant submitted that the unauthorised occupation is defined under Section 2(g) of the said Act. An unauthorised occupation is in two parts, i.e. firstly, those who have no authority means whose entry is without authority and secondly, those whose authorised entry is terminated for any reason whatsoever. As held by the Hon’ble Apex Court, in the case of the New India Assurance Company, the occupant in the present case, would thus fall in the first category, that is, the entry of the occupant in the premises is without any authority. The authorisation was given by the applicant only to Dr Bharucha. Thus, the findings recorded by the Appellate Court holding that the occupant is not in an unauthorised occupation are erroneous and contrary to the well-settled legal principles.

18. The appellate Court has erroneously held that the tenancy rights can be bequeathed, and it does not amount to a transfer, and that a transfer means transfer inter vivos, and thus, the tenancy condition in clause 9 in the present case would not be a bar to bequest. Despite the well-settled legal principles by the Hon’ble Apex Court, the Appellate Court wrongly relied upon the decisions of the Gujarat and the Karnataka High Court. Thus, the findings recorded by the Appellate Court are illegal in view of the well-settled legal principles settled by the Hon’ble Apex Court in the decisions relied upon by the learned counsel for the applicant.

19. The findings recorded by the Appellate Court, holding that as the heirs are not claiming under Section 5(11)(c) of the Bombay Rent Act, the occupant would be entitled to claim under Section 5(11)(c), are completely illegal, as the provisions of the Rent Act do not apply to the subject premises. The Appellate Court has relied upon the decision of the Gujarat High Court. However, our High Court has taken a view that the tenancy rights cannot be bequeathed. The view of our Court is upheld by the Hon’ble Apex Court in the case of Vinod Chandra Kapadia, which holds that in view of the bar under Section 43 of the Maharashtra Tenancy and Agricultural Lands Act, it cannot be bequeathed. Hence, in view of the well-settled legal principles by the Hon’ble Apex Court, the reliance placed by the Appellate Court on the Karnataka and Gujarat High Court decision is erroneous.

20. Learned counsel for the applicant relies upon the findings recorded by the Estate Officer, which deal with all the factual aspects and the well-settled legal principles. The applicant prayed for the eviction of the occupant and also prayed for damages. The evidence of the officer of the applicant and the valuer was rightly relied upon by the Estate Officer to pass an order of damages. The occupant failed to lead evidence to controvert the evidence in respect of the claim for damages. Learned counsel for the applicant, therefore, submits that the Appellate Court has misconstrued the facts and the evidence on record in reversing the findings recorded by the Estate Officer. Hence, in view of the facts of the case, the evidence on record and the well-settled legal principles, the impugned order must be quashed and set aside, and the Estate Officer’s order must be confirmed.

SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1 (“OCCUPANT”):

21. Learned senior counsel for the occupant admits the factual aspects regarding the original tenancy transferred to Dr Bharucha and the occupant’s claim based on the Will executed by Dr Bharucha. Since the occupant was residing along with Dr Bharucha and the tenancy rights were bequeathed by executing a Will, the occupant becomes a contractual tenant by operation of law and deeming provision. The occupant has also paid rent for two years up to 1997, which was accepted by the applicant. Hence, there was no reason to issue a termination notice to the heirs and legal representatives of Dr Bharucha and to call upon the occupant to hand over possession. The heirs and legal representatives of Dr Bharucha never resided in the subject premises. According to the learned senior counsel for the respondent no.1 (occupant), there is a difference between a ‘transfer’ and ‘transmission’. The two basic principles regarding ‘transfer’ and ‘transmission’ are important factors for deciding whether respondent no.1 (occupant) can be termed as an unauthorised occupant as contemplated under the said Act.

22. The occupant is a legitimate contractual tenant as a legatee as per the Will executed by Dr Bharucha. The occupant, i.e. respondent no.1, does not claim any rights based on the transfer of tenancy. However, she claims tenancy as transmitted by the testamentary bequest governed by the Indian Succession Act, 1925, read with the Transfer of Property Act, 1882. Hence, tenancy is conferred upon respondent no.1 by operation of law. Thus, the occupant, being the contractual tenant, was not prohibited under the law from continuing her occupation. There was no contract that the tenancy would come to an end after Dr Bharucha’s death. Hence, the tenancy continues after his death and the same stands transmitted to the occupant, under the Will.

23. Learned senior counsel for respondent no.1 submitted that unless there is an embargo under the provisions of the said Act, the transmission of tenancy cannot be termed unauthorised. Thus, the testamentary disposition in favour of the occupant is permissible under the law. The clause 9 of the terms and conditions of the tenancy merely prohibits or proscribes assignment, sub-letting and parting with tenancy rights. This clause only pertains to transfers inter-vivos and not to transmissions by a valid Will. A transfer necessarily implies a transaction between two living persons which takes effect in their lifetime, whereas transmission only takes effect on the death of the testator, either by testamentary disposition in case of a Will or by personal law of succession in case of intestacy. In the present case, the Indian Succession Act applies as the parties are Parsis. Thus, the two modes of the passing off of an interest in the tenancy rights are qualitatively different and cannot co-exist simultaneously. Under the Transfer of Property Act, the tenancy rights of a tenant are heritable in nature, and the same may devolve either by testamentary bequest or on intestacy. The reference to Section 108 (j) of the Transfer of Property Act made by the learned counsel for the applicant is not applicable to the case of transmission of tenancy on the death of a tenant. Hence, in the present case, there is no prohibition whatsoever to the bequest made by Dr Bharucha in favour of the occupant.

24. To support his submission, learned senior counsel for the occupant relied upon the decisions in the case of Thakorlal Amratlal Vaidya Vs. Gujarat Revenue Tribunal and Others14, N. Ramaiah Vs. Nagraj S.15 and Gaiv Dinshaw Irani and Ors Vs. Tehmtan Irani and Ors16 and State of West Bengal Vs Kailash Chandra 17.

25. Learned senior counsel for the occupant submits that the show cause notice does not deal with the point whether respondent no.1 is an unauthorised occupant, and there are no grounds for eviction. The Estate Officer records no valid

15 AIR 2001 Karnataka 395 grounds for eviction. The notice is issued on the ground that the occupant was not a Class-I heir of Dr Bharucha, and she was not a close relative and was not residing in the subject premises when Dr Bharucha died. It is the occupant’s contention that she, being the legatee under the Will, is entitled to the tenancy rights. The occupant also claims to have been residing in the subject premises since 1980 as a family member of Dr Bharucha. To support his submissions, learned senior counsel for the occupant relied upon the decision of this Court in the case of Rajendra Chaubal Vs and the decision of the Hon’ble Apex Court in the case of Minoo Balsara.

26. Learned senior counsel for the applicant submitted that the findings of the Estate Officer are not sustainable as continuous possession was not the ground taken by the occupant. In the show-cause notice, there was no discussion or reference to the earlier correspondence. Hence, clause (9) of the terms of the tenancy was not considered while issuing the show cause notice. There was 18 (2005) 3 ALL MR 245 complete non-application of mind by the Estate Officer. In the absence of any legitimate ground in the show cause notice, the order of eviction by the Estate Officer would not be sustainable.

27. Learned senior counsel for respondent no.1, relied upon the evidence led on behalf of the applicant. He submits that the evidence would show that the show cause notice was issued on the ground that the occupant is class-I heir. He submits that, since Dr Bharucha and the occupant are Parsis; hence, there is no concept of class-I heir. Thus, the reasons recorded by the Estate Officer in the show cause notice by referring to the termination notice amount to a complete non-application of mind. He submits that the facts of the present case are covered under the provisions of the Transfer of Property Act. Hence, the legal principles laid down by the Hon’ble Apex Court in the case of Vinodchandra Sakarlal Kapadia would not apply in the present case.

28. Learned senior counsel for respondent no.1 submits that the Will was probated on 3rd September 1984, hence, based on the Will, the tenancy was validly transmitted in the name of the occupant. He thus submits that in view of the legal principles settled in the decision of Gaiv Dinshaw Irani and Ors, the occupant cannot be termed as an unauthorised occupant. The legal principles settled in the decision of Gaiv Dinshaw Irani and Ors, would support the occupant’s contention that the present case is governed by the Transfer of Property Act and in the absence of any valid termination, the occupation of respondent no.1 cannot be termed as unauthorised.

29. Learned senior counsel for the occupant submits that the show cause notice is defective and no satisfactory reason is recorded by the Estate Officer. There is no reference to clause (9) of the terms and conditions of the tenancy. Thus, the show cause notice cannot be the basis to declare respondent no.1 as an unauthorised occupant. The show cause notice is completely silent about the guidelines or policy of the applicant. Hence, the reference to the guidelines in the show cause notice would not be sufficient to hold respondent no.1 as unauthorised occupant. Respondent no. 1 was not only residing in the subject premises as a family member of Dr Bharucha, but she is also the legitimate beneficiary under the Will. Thus, in view of the infirmities in the show cause notice and the valid transmission of the tenancy in the name of respondent no.1, the findings recorded by the Estate Officer were rightly reversed by the appeal court.

30. The Learned Estate Officer has misconceived the notion of the personal law and has issued a show cause notice to respondent no.1 on the ground that the class-I heirs of Dr Bharucha. Since the present case relates to the contractual tenancy under the Transfer of Property Act, there is no restriction on transmission of the tenancy under the applicable laws. Hence, the legal principles relied upon by the learned counsel for the applicant in the cases of Ashok Marketing Limited and Anr, Kaiser-I Hind Pvt Ltd and Anr, Jain Ink Manufacturing Company, Crawford Bayleay and Co, and Ors, are clearly distinguishable on the facts and the points for consideration in the present case. The legal principles settled in the decision of Minoo Framroze Balsara relied upon by the learned counsel for applicant are misplaced as the judgment in the said case reiterates the need to form an opinion that the occupant is an unauthorised person. Thus, without the first precondition being met, the question of the need to evict would not arise. Hence, the amendment to Section (5) of the said Act, namely, the Estate Officer ‘shall evict’ apart from being academic, is brought into effect subsequent to the proceedings before the Estate Officer, would not operate retrospectively to the present case. Learned senior counsel for respondent no.1 submits that in view of the different facts in the decision of Vasant Pandit, Bhavarlal Shah, Zahid Mazgaonwalla and Vinodchandra Kapadia dealing with the respective State Legislations, would not apply to the facts of the present case, which is governed under the Transfer of Property Act.

31. Learned senior counsel for respondent no.1, submitted that the decision in the case of New India Assurance Company Ltd pertains to the binding effect of guidelines and does not support the case of the applicant. The ratio laid down in the decision of the Syndicate Bank does not touch upon the binding nature or otherwise of the guidelines and simply finds fault with the occupant therein for not challenging the order of the estate officer for failure to abide by the guidelines. The decision in the case of Betty Menezes, is clearly distinguishable in as much as the tenancy therein was not claimed on the basis of a bequest. The decision in the case of Jeevan Das was a case under Section 106 of the Transfer of Property Act, stating that no reasons need to be given while terminating a tenancy. So far as the facts of the present case are concerned, the occupant claims tenancy by operation of law and in any case the principles of Section 106 of the Transfer of Property Act do not apply to a show cause notice under the said Act which requires expression of satisfaction by the Estate Officer who ought to have decided the case of transmission of tenancy as contended on behalf of the occupant. Learned senior counsel for respondent no.1, thus, submits that the findings recorded by the appeal court would not require any interference by this court as the same has comprehensively analysed the law and the facts to hold that respondent no.1 is a legitimate tenant.

CONSIDERATION OF THE CONTROVERSY IN BRIEF:

32. I have carefully perused the papers of the proceedings and the well-established legal principles. The basic facts that the original recorded tenant of the subject premises was one Ms Tehmina Bharucha, and after her death, the tenancy was transferred in the name of her husband, Dr. Darasahah Bharucha, are not disputed. The occupant claims to be Dr Bharucha’s niece and to have been residing at the subject premises along with him. She therefore claims that under the Will, Dr Bharucha bequeathed the subject premises to her. Hence, she claims to have become the tenant of the subject premises. However, according to the applicant, respondent no. 1 is an unauthorised occupant.

33. The record shows that Dr Bharucha had clarified that, except for him, nobody else was claiming any right in respect of the subject premises; accordingly, the terms of tenancy were created between the applicant and Dr Bharucha. As per the terms and conditions, agreed between the applicant and Dr Bharucha on 19th May 1986, it was agreed that the tenant, i.e. Dr Bharucha, shall not assign, sub-let or part with possession of the subject premises or any part thereof, even if allowed by the law, without the previous consent in writing of the applicant. Hence, the applicant refused to accept respondent no. 1 as a tenant and issued the termination notice dated 25th January 1997 addressed to the heirs and legal representatives of Dr Bharucha. The notice was also addressed to the occupant, calling upon her to vacate and hand over the subject premises.

POINT FOR CONSIDERATION:

34. Thus, the point for consideration in this civil revision application is whether in view of the well-established legal principles applicable to the public premises, and the terms and conditions of the contractual tenancy, respondent no. 1 can claim any right in the subject premises based on the Will executed by Dr Bharucha or on the ground that the tenancy is conferred upon her as she was residing along with Dr Bharucha, i.e. the last recorded tenant at the time of his death.

FINDINGS BY THE ESTATE OFFICER AND THE

APPELLATE COURT:

35. The Estate Officer held that after the death of the original tenant, the tenancy was transferred to her husband, i.e. Dr Bharucha, on the terms and conditions that prohibited him from transferring, assigning, subletting or parting with possession of the subject premises without prior written consent of the applicant. Hence, the tenancy right bequeathed by way of Will was in breach of the terms and conditions of the transfer of the tenancy in favour of the last recorded tenant, i.e. Dr Bharucha. Hence, in the absence of prior written consent by the applicant, respondent no. 1 was not recognised as a tenant. Since the Will was executed in breach of the terms and conditions of the tenancy, the applicant terminated the tenancy by issuing the termination notice to the heirs and legal representatives of Dr Bharucha. Hence, respondent no. 1 was in an unauthorised occupation and thus was held liable to be evicted.

36. The appellate court has relied upon the decision of the Karnataka High Court in N. Ramaiah. In the said decision, one of the points for consideration was whether a bequest of a property under a Will is a transfer of the property. It was held that the Transfer of Property Act deals with transfers inter vivos, that is, the act of a living person, conveying a property in present or in future, to one or more living persons and that the provisions of the Transfer of Property Act are inapplicable to testamentary successions which are governed by Indian Succession Act, 1925.

37. The appellate court has relied upon the decision of the Gujarat High Court in Thakorelal Amratlal Vaidya. The short question that arose in the said decision was whether the heirs of a person who is a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, are entitled to inherit the tenancy on the death of such person under the provisions of the Tenancy Act as it stood prior to its amendment by Bombay Act 13 of 1956 or whether the tenancy comes to an end on the death of such person. In the said decision, it was held that a contractual tenancy under the Transfer of Property Act is heritable not because of Section 111 of the Transfer of Property Act but because it constitutes an estate or interest in the land which passes on to the heirs by the operation of the Law of Succession. Section 111 of the Transfer of Property Act merely provides various modes for the determination of a contractual tenancy, but so long as a contractual tenancy is not determined by any of the modes provided by that Section and continues to subsist, it can always devolve by succession, testate or intestate.

38. Thus, the appellate court held that the leases pertaining to the public premises are governed by the Transfer of Property Act, which does not put an embargo on the testamentary disposition of the tenancy rights. Hence, it is held that in view of the Will executed by Dr Bharucha, respondent no. 1 cannot be said to be in unauthorised occupation. It is further held that the Estate Officer has not recorded satisfaction for eviction in either the show cause notice or the eviction order. Hence, the appellate Court set aside the Estate Officer’s order.

LEGAL POSITION:

39. In Bhavarlal Labhchand Shah, the question was whether the tenant of a non-residential premises continuing in occupation after the period of the contract is over, can bequeath his right of occupation by a Will. The Apex Court negatived such a contention. The Hon’ble Apex Court in the decision of Bhavarlal Labhchand Shah held that on a true interpretation of the provisions of the Bombay Rent Act a bequest of the right to the tenancy in respect of premises referred to in Section 5(11)(c)(ii) of the Act after the determination of the lease, which is protected by the Act cannot be made under a Will in favour of a person not referred to in that sub-clause. The view of this Court in the case of Anant Trimbak Sabnis v.Vasant Pratap Pandit 19 holding that the words “to assign or transfer in any other manner his interest therein” in Section 15(1) of the Rent Act had the effect of prohibiting the disposition of the tenancy right by a Will in the absence of a contract to the contrary is approved by the Apex Court in Bhavarlal Labhchand Shah.

The decision of this Court in Anant Trimbak Sabnis was approved by the Apex Court in Vasant Pratap Pandit. The legal principles settled in the decision of Bhavarlal Labhchand Shah are summarised and affirmed in the recent decision of Vinodchandra Kapadia.

40. The Apex Court inVinodchandra Sakarlal Kapadia, observed that various States have enacted legislations seeking to invalidate transfers of agricultural lands made by tribals or socially disadvantaged persons to non-tribals or transferees from non-backward communities, which legislations have gone to the extent of nullifying transactions entered into even before the legislations had come into effect. It is held that the validity of these legislations has been sustained by the Apex Court. It is observed that the common thread running through the various decisions is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent, and where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the Court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. After examining the provisions of the Maharashtra Tenancy and Agricultural Lands Act for considering the legislative scheme, it is held in paragraph 27 as under: “27. A transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the authority concerned so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. As against this, if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a nonagriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. The construction put on the expression “assignment” appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term “assignment” used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.”

41. While dealing with the submissions that any prohibition in the State enactment inconsistent with the principles emanating from the Central legislation, namely, the Succession Act, 1925, must be held to be void, the Hon’ble Apex Court in Vinodchandra Sakarlal Kapadia, held in paragraph 35 as under: “35. If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of the Succession Act, are principally designed to attain and subserve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the authorities concerned, is to be seen in that light as furthering the cause of legislation. Even if, by the process of construction, the expression “assignment” is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the provisions concerned are completely within the competence of the State Legislature and by placing the construction upon the expression “assignment” to include testamentary disposition, no transgression will ensue.” emphasis applied

42. In the decision of Ashoka Marketing Ltd., the question that arose for consideration was whether the provisions of the Public Premises Act would override the provisions of the Delhi Rent Control Act, 1958, in relation to premises which fall within the ambit of both the enactments. It was held that the Rent Control Act can 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 the eviction of unauthorised occupants from public premises. The Public Premises Act must prevail over the Rent Control Act. It is further held that the Public Premises Act has been enacted with a view to provide for eviction of unauthorised occupants from public premises, which shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation and safeguard public interest by making available for public use premises belonging to Central Government, companies in which the Central Government has substantial interest, corporations owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises.

43. In the decision of the Hon’ble Apex Court in the case of Banatwala & Co. v. LIC20, the question arose whether a tenant's application for fixation of standard rent would get ousted from the Maharashtra Rent Control Act (“MRC Act”). The respondent therein, i.e. LIC, contended that what they were charging was permissible increases, whereas the appellant therein contended that what was charged was in excess of what should be the standard rent, and for that purpose, it had filed an application for the fixation of standard rent under the MRC Act. The legal principles settled in Ashoka Marketing with regard to the controversy with respect to the subject of eviction of the unauthorised occupants from the public premises in context with Delhi Rent Act and the Public Premises Act was noted, where it was held that the proceedings under the Public Premises Act were held to be valid and legal, and not those under the Delhi Rent Control Act. The legal principles in Kaiser-I-Hind (P) Ltd and Crawford Bayley & Co. were relied upon and the provisions of the Public Premises Act vis-à-vis the Bombay Rent Act and the MRC Act on the issue of eviction of unauthorised occupants from public premises were considered as under: “48. Before we deal with the rival submissions on the maintainability of the standard rent application, we may note that with respect to the aspect of eviction of unauthorised occupants from the public premises, it is now well settled that the Public Premises Act will apply and not the Bombay Rent Act or the subsequent MRC Act.

48.1. In Kaiser-I-Hind (P) Ltd.v. National Textile Corpn. (Maharashtra North) Ltd.[(2002) 8 SCC 182] one of the questions before the Constitution Bench was whether the provisions of the Bombay Rent Act having been re-enacted after 1971 by the State Legislature with the assent of the President will prevail over the provisions of the Public Premises Act by virtue of Article 254(2) of the Constitution. The Court noted that although the Public Premises Act received the assent of the President on 23-8-1971, in view of Section 1(3) of the Public Premises Act, it is deemed to have come into force from 16-9-1958. On the other hand, the duration of the Bombay Rent Act was extended by Maharashtra Act 12 of 1970. Therefore, the Court held specifically in para 40 of its judgment that Article 254(1) was the relevant one in the present case, and to the extent of repugnancy, the State law will not prevail under Article 254(1), and the law made by Parliament shall hold good.

48.2. Between the Public Premises Act and the MRC Act this Court held in Crawford Bayley & Co.v.Union of India [(2006) 6 SCC 25] that to the extent specific provisions were made in the Public Premises Act for eviction of unauthorised occupants, that Act will apply with respect to the premises of State Bank of India which were in dispute in that matter and not the MRC Act.”

44. In Banatwala & Co. v. LIC, the decision of a threejudge bench in Jain Ink Mfg. Co. was also referred to and relied upon where the provisions of the Public Premises Act, were considered in the light of those of the Delhi Rent Control Act, 1958 and the Slum Areas (Improvement and Clearance) Act, 1956. In that matter, the challenge to the applicability of the Public Premises Act was rejected by holding that the Public Premis said Act es Act, as compared to the Rent Act, which has a very broad spectrum, is a special Act and overrides the provisions of the Rent Act. It was thus concluded in Banatwala & Co. in paragraph 99 as under: “99. In the circumstances, we hold as follows: (a) The provisions of the Maharashtra Rent Control Act, 1999 with respect to fixation of standard rent for premises, and requiring the landlord not to cut off or withhold essential supply or service, and to restore the same when necessary, are not in conflict with or repugnant to any of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. (b) The provisions of the Public Premises Act, 1971 shall govern the relationship between the public undertakings covered under the Act and their occupants to the extent they provide for eviction of unauthorised occupants from public premises, recovery of arrears of rent or damages for such unauthorised occupation, and other incidental matters specified under the Act.

(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.

(d) The application of the appellant and similar applications of the tenants for fixation of standard rent or for restoration of essential supplies and services when necessary, shall be maintainable under the Maharashtra Rent Control Act, 1999.”

45. This Court, in the decision of Zahid Ahmedali Mazgaonwalla relied upon the legal principles in the decision of Vasant Pandit and held that tenancy rights under the Rent Act cannot be bequeathed, and an heir of the deceased tenant cannot claim exclusive tenancy rights, especially in the light of section 5(11)(c) of the Bombay Rent Act. This Court, in the decision of Bettye Menezes, was dealing with a challenge to the order of eviction and damages passed by the Estate Officer under the Public Premises Act, which was confirmed in an appeal by the civil court. The facts of the said case were similar to those of the present case, where the occupant claimed tenancy rights on the grounds that she was residing with the last recorded tenant at the time of his death, and LIC had also accepted rent from her. In the said case, the last recorded tenant had executed a Will, and a Testamentary Petition was filed for probate. The Testamentary Petition was converted into a suit, and consent terms were signed by the occupant, her husband and three children on one hand and the executors on the other hand. Thus, the occupant claimed tenancy on the ground that after the death of the last recorded tenant, she had become the tenant of the subject premises. Even in the said case, the occupant and the last recorded tenant were Parsis. This Court referred to and relied upon the legal principles settled by the Apex Court in Ashok Marketing Ltd and Banatwala and Company and held that a perusal of the definition under Section 2(g) of the said Act shows that the Act recognizes 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. It was thus held that the said Act recognises only two categories, namely, authorised occupation and unauthorised occupation. Therefore, in the light of the well-established legal principles in Ashok Marketing Ltd and Banatwala and Company, this Court held that the occupant in the said case could not claim to have become a tenant.

46. In the decision of New India Assurance Co. Ltd., the Apex Court was dealing with the issue of leading evidence in a proceeding under the Public Premises Act. Hence, the legal principles settled in the said decision are not relevant to the facts of the present case for deciding the issue involved in the present case.

47. In the decision of Syndicate Bank, the guidelines relied upon were not issued in exercise of any statutory power under the Public Premises Act or any other statute. It was held that even if there was a violation or non-compliance with the guidelines, the only “remedy” of any person complaining of non-compliance with such guidelines is to bring such violation to the notice of a higher authority. It was therefore held that the enforcement of any right or exercise of any power under the Public Premises Act cannot be set at naught by relying upon or referring to the guidelines issued by the Central Government. The relevant conclusion in paragraph 12 reads as under: “12. We may however add that this order should not be construed as laying down a proposition that the public sector undertakings and financial institutions to whom the guidelines were addressed, could wilfully ignore or violate the same. Whenever any action is proposed to be taken under the Public Premises Act, the authorities concerned are bound to keep the said guidelines in view, to the extent possible on the facts and circumstances of the respective case. If any public sector undertaking or financial institution is of the view that any of the guidelines are contrary to the provisions of the Act or otherwise unworkable or impractical, they can also seek modification of the guidelines or have their own internal guidelines. What is held in this case is that an unauthorised occupant or tenant against whom action is initiated under the Public Premises Act, cannot resist the proceedings on the ground of non-compliance with the said guidelines.”

48. The Hon’ble Apex Court in Jiwan Dass held as under on the issue of termination of tenancy under the Public Premises Act: “4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice if the premises are occupied for agricultural or manufacturing purposes, and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises ‘unauthorised occupation’ under Section 2(g) of the Act postulates that the tenancy “has been determined for any reason whatsoever”. When the statute has advisedly given wide powers to the public authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act. Take for example that a premises is let out at a low rent years back like the present one. The rent is unrealistic. With a view to revise adequate market rent, tenant became liable to ejectment. The contention then is, action is violative of Article 21 offending right to livelihood. This contention too is devoid of any substance. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. So the doctrine of livelihood cannot indiscriminately be extended to the area of commercial operation. Therefore, we do not find any substance in the contentions of the appellant. The appeal is accordingly dismissed. No costs.”

49. This Court, in the decision of Minoo Framroze Balsara, by relying upon the legal principles settled by the Hon’ble Apex Court in the decision of Ashok Marketing Ltd., held that the provisions of the Bombay Rent Act would not prevail in the State of Maharashtra over those of the Public Premises Eviction Act, 1971.

50. Learned senior counsel for respondent no. 1 relied upon the decision of the Hon’ble Apex Court in the case of Gaiv Dinshaw Irani. In this case, the appellants had claimed that leasehold tenancy rights can be bequeathed as against the findings of the trial court, which held that “it is a wellestablished principle that tenancy rights cannot be bequeathed”. The issue involved was regarding a suit premises owned by the local authority of Mumbai, which were subject to the Bombay Rent Act. The Apex Court discussed the decisions in Bhavarlal Labchand Shah, Vasant Pandit, and the State of West Bengal Vs Kailash Kapur, and held that, in general, tenancies are to be regulated by the governing legislation, which favours that tenancy be transferred only to family members of the deceased original tenant. However, in light of the majority decision of the Constitution Bench inGian Devi Anand v.Jeevan Kumar21, it was held that in absence of any specific provisions, general laws of succession to apply, which position is further cemented by the decision inState of W.B. v. Kailash Chandra Kapur which has allowed the disposal of tenancy rights of Government-owned land in favour of a stranger by means of a Will in the absence of any specific clause or provisions. However, in State of W.B. v. Kailash Chandra Kapur, the lease was granted for 999 years, and the issue was not regarding eviction under the Public Premises Act. Thus, the legal principles settled were with reference to the terms and conditions of the lease in that case.

51. While discussing the facts in Gaiv Dinshaw Irani, it was held by the Apex Court that the tenancies owned by BMC and allegedly bequeathed by means of a Will as a residuary legatee in 1946, appeared to be permissible in the light of the Constitution Bench decision. However, as the legal position regarding the permissibility of bequeathing a tenancy by Will in 1946 was not decided, it was held that the transfer of tenancy by BMC based on consent letters was illegal and void ab initio.

52. Even in Gian Devi Anand, the question that arose for consideration was whether, under the Delhi Rent Control Act, 1958, the heirs of a deceased tenant whose contractual tenancy in respect of commercial premises has been determined are entitled to the same protection against eviction afforded by the Act to the tenant. It was held that the tenant, even after the determination of the tenancy, continues to have an estate or interest in the tenanted premises, and the tenancy rights, both in respect of residential premises and commercial premises, are heritable. It was further held that in the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.

53. The learned senior counsel for respondent no. 1, by relying upon the decision in the case of Gaiv Dishaw Irani, submitted that the legal principles settled in the said decision support the proposition that the present case, governed by the Transfer of Property Act, is qualitatively different from those cases governed by the provisions of the State Rent Legislation. The legal principles settled in Gaiv Dishaw Irani, as discussed above, do not pertain to the tenancy covered under the Public Premises Eviction Act.

54. In the decision of Rajendra Chaubal, this court held that the show cause notice not giving reasons for finding the addressee as unauthorized occupant, and the grounds of satisfaction to evict him, the order of eviction passed by the Estate Officer would be liable to be quashed.

ANALYSIS AND CONCLUSIONS:

55. In the present case, one of the objections to challenge the show cause notice issued by the Estate Officer was on the ground that Dr Bharucha died without leaving behind any Class-I heir, which shows non-application of mind, as the parties are Parsis and there is no concept of Class-I heir. However, the show cause notice is also issued on the ground that the occupant’s claim of tenancy, on the ground of being a distant relative of Dr Bharucha, is untenable and unacceptable. Thus, the applicant refused to recognise respondent no. 1 as a tenant. According to the applicant respondent no. 1 was in an unauthorised occupation of the subject premises; hence, on the death of Dr Bharucha, who was the last recorded tenant, termination notice was issued to the heirs and legal representatives, that is, the executors of the Will of Dr Bharucha, and respondent no. 1, that is, the occupant, was called upon to vacate the subject premises. The satisfaction for the eviction of respondent no. 1 is thus recorded in the show cause notice, and only the reference to the Class-I heir of Dr Bharucha would not make the show cause notice invalid. The Estate Officer held that Dr Bharucha executed the Will in favour of respondent no. 1 in breach of the terms and conditions of the tenancy; hence, respondent no. 1 was not entitled to claim tenancy through Dr Bharucha and respondent no. 1 was an unauthorised occupant. Thus, satisfaction for eviction was recorded in the show cause notice and the eviction order. Hence, the legal principles settled in Rajendra Chaubal would not apply to the facts of the present case.

56. Another reason to challenge the show-cause notice and the eviction order on the ground that the show-cause notice is completely silent about the guidelines or policy of the applicant, also has no substance. In the decision of Syndicate Bank, the Apex Court held that the enforcement of any right or exercise of any power under the Public Premises Act cannot be set at naught by relying upon or referring to the guidelines issued by the Central Government. It was held that an unauthorised occupant or tenant against whom action is initiated under the Public Premises Act cannot resist the proceedings on the ground of non-compliance with the guidelines.

57. There is no substance in the submissions on behalf of the occupant that, since she was residing along with Dr Bharucha and the tenancy rights were bequeathed by executing a Will, the occupant becomes a contractual tenant by operation of law and deeming provision. There is also no substance in the submission that the occupant has also paid rent for two years up to 1997, which was accepted by the applicant; hence, she cannot be evicted. In similar facts, this court in the decision of Bettye Menezes, referred to and relied upon the legal principles settled by the Apex Court in Ashok Marketing Ltd and Banatwala and Company and held that the occupation by any person of the public premises without authority, whether claimed by way of grant or any other mode of transfer, would be an unauthorised occupation. Therefore, in the light of the well-established legal principles in Ashok Marketing Ltd and Banatwala and Company, this Court held that the occupant in the said case could not claim to have become a tenant.

58. The decision in Gaiv Dinshaw Irani, relied upon by the learned senior counsel for respondent no. 1, involves the issue regarding a suit premises owned by the local authority of Mumbai, which were subject to the Bombay Rent Act. In view of the well-settled legal principles as discussed above with respect to the aspect of eviction of unauthorised occupants from the public premises, the Public Premises Eviction Act will apply and not the Bombay Rent Act or the subsequent MRC Act. Hence, the decision in the case of Gaiv Dinshaw Irani would not be of any assistance to the arguments made on behalf of respondent no. 1.

59. In the present case, after the death of the original recognised tenant, the tenancy was transferred to her husband, i.e. Dr Bharucha, on the terms of the tenancy recorded in writing on 19th May 1986, signed by him for acceptance of the terms and conditions. There is no dispute that Dr Bharucha was therefore occupying the subject premises in view of the authority granted by the applicant under the terms and conditions recorded in writing on 19th May 1986, thereby transferring the tenancy to him. Clause 9 of the terms and conditions provided that the tenant, i.e. Dr Bharucha, shall not assign, sub-let, or part with possession of the subject premises without prior written consent of the applicant, even where allowed by law. Admittedly, the applicant had never consented to any transfer or assignment of any nature whatsoever. Thus, the grant of authority to Dr Bharucha to occupy the subject premises is a contractual tenancy on the terms and conditions recorded in writing, putting an embargo on transfer, assign, sublet or part with possession without prior consent of the applicant. In view of the correspondence between the applicant and Dr Bharucha before the transfer of tenancy to him, he had confirmed in writing that, except for him, no one was occupying the subject premises. Admittedly, respondent NO. 1 is not the immediate family member of Dr Bharucha. However, she claims rights based on the Will.

60. In the present case, clause 9 of the terms of the contract to transfer the tenancy to Dr Bharucha contained a covenant that prevented him, i.e. the last recorded tenant, from assigning, sub-letting, or parting with possession of the subject premises, even if permitted by law.

61. If a testamentary disposition of a public premises contrary to the contract is permitted, the property can be bequeathed to a total stranger, who may not fulfil the requirements to be recognised as a tenant of the public premises and be eligible to be a transferee without the consent of the owner/authority of the public premises and may also render the natural heirs of the tenant without any support or sustenance. It is a well-established legal principle that the Public Premises Eviction Act provides for a speedy mechanism to secure the eviction of unauthorised occupants from public premises, which shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation and safeguard public interest by making available for public use premises belonging to Central Government, companies in which the Central Government has substantial interest, corporations owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises. Thus, by applying the principles settled in Vinodchandra Kapadia, the assignment made in the present case, by testamentary disposition, is in breach of the terms of the transfer of the tenancy in favour of the last recorded tenant and thus is not valid. Hence, respondent no. 1 would not be entitled to claim any tenancy rights based on the Will.

62. The statute empowers the applicant to act in the public interest and determine the tenancy before taking action under Section 5 of the said Public Premises Act. In view of the well-established legal principles discussed above, Section 106 of the Transfer of Property Act does not contemplate giving any reason for terminating the tenancy. The definition of ‘unauthorised occupation’ under Section 2(g) of the Act postulates that the tenancy “has been determined for any reason whatsoever”. In the present case, the authority to occupy granted solely to Dr. Bharucha ended on his death. His heirs and legal representatives have not claimed any tenancy in their favour on his death.

63. Hence, the occupant is not entitled to claim any right under the Will. The provisions of the Rent Act do not apply to the present case. Hence, by relying upon the provisions of the Rent Act, the applicant is not entitled to claim tenancy on the ground that she was residing with Dr Bharucha at the time of his death.

64. The reasons in the impugned order on the ground of defective show cause notice and by relying upon the decisions of the Gujarat High Court and the Karnataka High Court would not be sustainable in view of the wellestablished legal principles of this Court and the Apex Court as discussed in the preceding paragraphs.

65. The Estate Officer relied upon the evidence led by the officer of the applicant and the valuer for quantifying the damages, as no adverse evidence was brought on record by respondent no.1. The appellate Court set aside the Estate Officer’s order by holding that the show cause notice was defective and thus eviction order was also defective. Hence, it was held that the order of damages was not sustainable. The appellate Court has not recorded any reasons to reverse the findings of the Estate Officer for quantifying the damages. There is nothing shown to controvert the applicant’s evidence and the valuer’s evidence in support of the claim for damages. For want of any adverse evidence, I do not see any reason to disturb the Estate Officer’s findings on quantifying damages.

66. Hence, for the reasons recorded above, the impugned order would not be sustainable. The order of the Estate Officer must be confirmed. The Civil Revision Application is allowed by passing the following order: a) The judgment and order dated 2nd May 2009 passed by the City Civil Court Mumbai in Miscellaneous Appeal No. 149 of 2008 is quashed and set aside. Miscellaneous Appeal No. 149 of 2008 is dismissed. b) The judgment and order dated 29th May 2008, passed by the Estate Officer in Case Nos. 25 and 25A of 1999, is confirmed. (GAURI GODSE, J.)