Shapoorji Pallonji & Company Pvt Ltd v. The New India Assurance Company Ltd

1. By the present Writ Petition, Petitioner has prayed for the following reliefs:- “(a) that this Hon’ble Court be pleased to issue Writ of Certiorari or a Writ in the nature of Certiorari or any other writ order or direction under Article 226 of the Constitution of India to call for the records in relation to the Orders dated 08.07.2022 (Exh. “A”) and 22.07.2022 (Exh. “B”) and after examining the legality or validity thereof quash and set aside the impugned orders; (b) that this Hon’ble Court be pleased to issue Writ of Certiorari or a Writ in the nature of Certiorari or any other writ order or direction under Article 226 of the Constitution of India to call for 1 of 14 the records in relation to the impugned show cause notice dated 29.07.2022 (Exh. “C”) and after examining the legality or validity thereof quash and set aside the impugned show cause notices under Form ‘A’ and ‘F’ of the Act.”

2. Order dated 08.07.2022 allows the amendment application filed by Respondent in the proceedings before the Estate Officer under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short, “the said Act”); order dated 22.07.2022 directs issuance of fresh show-cause-notice to the Petitioner; show-cause-notice dated 29.07.2022 has been issued to the Petitioner. These are under challenge.

3. The subject premises is Flat No. 45, Garage No. 3 along with Room No. 1, 3 and 5 in the building known as Mayfair Gardens, Little Gibbs Road, Malabar Hill, Mumbai – 400 006. Petitioner is tenant of the subject premises since 1940. In 1962, Respondent acquired the building including the subject premises from its predecessor-in-title by indenture of conveyance and Petitioner's tenancy was attorned in favour of Respondent. The said Act was enacted in 1971. Pursuant to enactment of General Insurance Business (Nationalization) Act, 1972, Respondent was converted into a Government Company within the meaning of Section 3 read with Section 617 of the Companies Act,

1956.

4. On 09.02.2001 Respondent issued first termination notice 2 of 14 acknowledging that Petitioner was a monthly tenant and called upon the Petitioner to vacate the subject premises within one month from the date of the said notice. Petitioner replied to the notice seeking reasons for issuance of the same. On 18.02.2002, Respondent issued second termination notice stating the reason that the subject premises were required for accommodating the increasing staff of the Respondent. On March 28.02.2002, Petitioner replied to the notice refuting its contentions.

5. In 2003 Respondent filed a composite application under Sections 5 and 7 of the said Act read with the Rules thereunder before the Estate Officer seeking order of eviction against Petitioner to vacate possession of the subject premises and order for payment of damages under Section 8 of the said Act along with interest thereunder till vacant and peaceful possession of the subject premises was given along with costs. On 08.06.2004 Petitioner filed its written statement and contested the application. Witness Action commenced. On 07.06.2017 affidavit of evidence of Respondent's witness was filed. Cross-examination of Respondent's witness i.e. Mr. Ratan Kumar Purohit commenced on 14.12.2018 and was carried upto 13.06.2019 and remains incomplete as on date.

6. On 21.04.2022 Respondent filed an amendment Application seeking enhancement of the claim post-commencement of trial. 3 of 14 Petitioner filed its reply resisting the amendment application on various grounds. By order dated 08.07.2022, the Estate Officer allowed the amendment application filed by the Respondent. By further order dated 22.07.2022, the Estate Officer directed issuance of fresh show-cause-notices under the said Act. On 29.07.2022 fresh show-cause-notice was issued to the Petitioner. The twin orders dated 08.07.22 and 22.07.22 along with the fresh show-cause-notice dated 29.07.2022 are impugned in the present petition.

7. Mr. Siwach, learned Advocate for Petitioner (original opposite party before the Estate Officer) would submit that the impugned order erroneously holds that the fundamental principles of the Civil Procedure Code (CPC) are not applicable to the proceedings before the Estate Officer. He would submit that it is settled law that fundamental provisions of the CPC are applicable to the proceedings before the Estate Officer considering that the CPC being the procedural law is an embodiment of natural justice and fair play. He would therefore submit that the finding returned by the Estate Officer that he is not bound by the provisions of the CPC is legally erroneous and unsustainable. He would submit that the impugned order dated 08.07.2022 is vitiated by legal and jurisdictional errors and infirmity since the provisions of Order 6 Rule 17 of the CPC are mandatory in nature. If a party files an application seeking amendment post- 4 of 14 commencement of the trial, it is incumbent upon such party to show that in spite of due diligence on its part it could not have raised the matter before commencement of the trial. In the present case, he would submit that the amendment application dated 21.04.2022 seeking an enhanced claim post-commencement of trial is filed much belatedly and therefore the liberal approach adopted by the Estate Officer in allowing the amendment at this stage cannot be taken. He would submit that perusal of the amendment application would reveal that no sufficient cause is pleaded therein and / or case of due diligence has been pleaded as prescribed in law. He would submit that the only averment made in the application is that the amendment is necessary without giving any supporting reasons. He would submit that while allowing the amendment application, the Estate Officer has merely observed that rejecting the amendment application would mean shutting out the Respondent from relying on a scientific basis for their claim. He would next submit that by virtue of the amendment, Respondent is attempting to better and improve its case after 19 years of filing the composite application under trial and such an improvement after enormous lapse of time cannot be allowed. He would submit that in any event considering that the original composite application filed by the Petitioner is at the stage of cross-examination of the Respondent's witness and therefore cannot be allowed at this stage. He would submit that the relief allowed by the Estate Officer 5 of 14 directing issuance of fresh show-cause-notices for enhancement after 19 years of filing the composite application was not even prayed for by the Respondent in the amendment application. He would submit that the fresh show-cause-notice issued by the Estate Officer is barred by limitation in as much as as per Article 67 of the Limitation Act, 1963, the proceedings concerning recovery of possession are to be instituted within 12 yeas of determination of tenancy and further in terms of Section 27 of the Limitation Act, the Petitioner has obtained a substantial right over the subject premises. In support of the above submissions, Petitioner has referred to and relied upon the following decisions:-

(i) Nandini J. Shah & Anr. Vs. Life Insurance Corporation[1];

(ii) Vidyabai Vs. Padmalatha[2];

(iii) Maratha Market People's Co-op Bank Ltd., In re[3],

(iv) Kalu Ram Vs. NCT of Delhi[4]

8. PER CONTRA, Mr. Sanglikar, learned Advocate for the Respondent has drawn my attention to the Petition and contended that the Petition challenges the order dated 08.07.2022 allowing amendment to the claim for damages. He would submit that Petitioner is the opponent in case No. 12 and 12A of 2003 filed by the Respondent before the Estate Officer. Case No. 12/03 is for eviction

6 of 14 whereas Case No. 12A/03 is for damages for unauthorized occupation by the Petitioner. Both the cases arise out of the composite application dated 16.01.2003 seeking eviction and damages. Admittedly both cases are pending over 20 years before the Estate Officer. He would inform that affidavit of evidence of Respondent's witness was filed on 07.06.2017 and his cross-examination is still incomplete. He would submit that the amendment has been rightly allowed by the Estate Officer by holding that Section 8 of the said Act limits applicability of the CPC to the cases under the said Act. He would submit that the amendment sought by the Respondent does not amount to improving the case of the Applicant before the Estate Officer as damages have to be assessed as per Rule 8 of the Public Premises Rules, 1971. He would next submit that the amendment sought for and allowed by the Court cannot in any manner cause any prejudice to the Petitioner as the Estate Officer has determined that the Petitioner shall be given a fair opportunity to contest the enhancement of claim in the trial. He would submit that merits or correctness of the case pleaded in the amendment application cannot be considered for deciding the amendment application itself. He would further submit that the Limitation Act does not apply to the proceedings under the said Act as held by this Court vide order dated 23.07.2012 in the case of Saurashtra Cement Ltd Vs. National Aviation Co of India Ltd & Anr. in Writ Petition No. 8312 of 2010. He would next submit that the 7 of 14 Division Bench of this Court in its order dated 22.02.2018 in OS Writ Petition (L) No. 21 of 2018 in the case of G E T & D India Ltd Vs. The New India Assurance Company Ltd & Anr. has upheld an identical amendment which has been further upheld by the Supreme Court in SLP(C) No. 10690 of 2091[8]. He would therefore submit that the present Petition be dismissed.

9. I have heard Mr. Siwach, learned Advocate for the Petitioner and Mr. Sanglikar, learned Advocate for Respondent and with their able assistance, perused the pleadings of the case. Submissions made on behalf of the parties have received due consideration of this Court.