Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 1291 (BOM)

Little & Co. v. Estate Officer

2010-09-06

D.Y.CHANDRACHUD, R.P.SONDURBALDOTA

body2010
JUDGMENT DR. D.Y. CHANDRACHUD, J. 1. Rule. With the consent of all the Learned Counsel, the Petition is taken up for hearing and final disposal. Counsel for the contesting Respondents waive service. 2. The First Petitioner which is a partnership firm of Advocates and Solicitors, obtained under an agreement dated 5 July 1923, premises situated on the third floor of what is known as Central Bank Building at Fort, Mumbai, from the predecessor-in-interest of the Second Respondent. The Second Respondent is the Central Bank of India. On 3 November 1924, a Deed of Assignment was executed between the outgoing partners of the First Petitioner and the continuing partners to which the Second Respondent was a party. The First Petitioner is thus a tenant of the Second Respondent of the premises situated on the third floor since 1923. On 17 October 1961, in a suit which was instituted by the then partners of the First Petitioner against the Third Respondent, Consent Terms were entered into between the parties. Under the Consent Terms, the Third Respondent was treated to have retired from the partnership firm. Clause 17 of the Consent Terms provided that the Third Respondent, so long as he continued to practice as a Lawyer, would be entitled to use a portion of the premises situated on the third floor, more particularly described in the Plan annexed to the Consent Terms. Parties contemplated in Clauses 17 and 18 that an application would be made to the landlord for the creation of a separate tenancy, but until the landlord agreed to do so, the entire rent or compensation of the premises would be paid by the First Petitioner. Under clause 18(b), in the event of the Third Respondent ceasing to use the premises for the purpose of his practice as a lawyer, he was to cease to be entitled to the user of the premises and thereupon the First Petitioner would be entitled to the user thereof. 3. On 7 June 2007, the Second Respondent terminated the tenancy of the Petitioners and in July 2007, an application was moved before the Estate Officer for an order of eviction under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. A notice to show cause was issued to the First Petitioner under Section 4 of the Act on 2 August 2007. A notice to show cause was issued to the First Petitioner under Section 4 of the Act on 2 August 2007. The enquiry against the First Petitioner is pending and is numbered as Enquiry 22 of 2007. Separately a notice to show cause has been issued to the Third Respondent in which the enquiry before the Estate Officer (Enquiry 33 of 2007) is stated to be pending. During the pendency of the proceedings, the Third Respondent by a notice addressed to the First Petitioner on 20 November 2009, recorded that he would cease to use premises from 30 November 2009 and that under the Consent Terms, the First Petitioner would be thereafter entitled to use premises. The First Petitioner was requested to fix an appointment for handing over a duplicate key which was in possession of the Third Respondent to the First Petitioner. A similar notice was addressed by the Third Respondent to the Second Respondent. The premises which are in the occupation of the First Petitioner are described in an internal memo of the Second Respondent as Room No.6 situated on the third floor while the premises in occupation of the Third Respondent are described as Room No.11. Admittedly, the rent/compensation for the use of the premises continues to be paid by the First Petitioner. 4. On 27 November 2009, the Estate Officer issued directions to the Third Respondent in Enquiry 33 of 2007, directing him not to hand over keys of the premises to any one else, apart from the applicant Bank or to deposit the keys before the Estate Officer. On 1 December 2009, a further hearing took place before the Estate Officer during the course of which, the Third Respondent stated that the keys of the premises had not been handed over to the First Petitioner and the directions contained in the previous order had not been breached. Nonetheless the Estate Officer passed an order directing that the premises be sealed pending the hearing and final disposal of the enquiry under Section 4. 5. The order of the Estate Officer, directing that the premises be sealed has been questioned on two grounds. The first submission is that the Estate Officer has no power under the Act to seal the premises pending the enquiry and until an order of eviction is passed. 5. The order of the Estate Officer, directing that the premises be sealed has been questioned on two grounds. The first submission is that the Estate Officer has no power under the Act to seal the premises pending the enquiry and until an order of eviction is passed. Secondly, it is urged that no hearing was afforded to the Petitioners who have a vital interest since the order of sealing would preclude the First Petitioner from using the premises in terms of the Consent Terms that were arrived at in the suit in 1961. 6. An affidavit in reply has been filed in these proceedings on behalf of the Second Respondent in which it has been stated that the direction to seal the premises was passed in order to protect the premises pending final orders and that the First Petitioner has an inherent right to do so. During the course of the hearing of the proceedings, Counsel appearing on behalf of the Second Respondent has stated before the Court that the powers of the Estate Officer to seal the premises in the manner in which he has purported to act, can only be traced to the inherent powers vested in the Estate Officer though there is no specific statutory power authoring him to do. so. 7. Section 4 of the Act provides for a notice to show cause against an order of eviction where the Estate Officer is of the opinion that any person is in unauthorised occupation of public premises and that he should be evicted. The notice is followed by an enquiry and Section 5 provides that after considering the cause shown by any person to whom a notice is issued under Section 4 and after considering the evidence, the Estate Officer if he is satisfied that the public premises are in unauthorised occupation, may make an order of eviction. The Estate Officer is vested with certain specific powers where a person fails to comply with an order of eviction. Subsection (2) of Section 5 empowers the Estate Officer in such a case to take possession of the public premises and to use such force if necessary. Section 5A empowers the Estate Officer to remove unauthorised constructions where a building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of subsection (1) of Section 5A. Section 5A empowers the Estate Officer to remove unauthorised constructions where a building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of subsection (1) of Section 5A. Subsection (2) empowers the Estate Officer to serve a notice for the removal thereof and thereafter to take action. Section 5B empowers the Estate Officer to demolish a construction which is carried out unauthorisedly where the erection of any building or execution of any work has been commenced or is being carried on, or has been completed, on any public premises. Section 5C empowers the Estate Officer to seal unauthorised constructions before or after making an order of demolition under Section 5B. The power to seal premises under Section 5C is, therefore, in aid of the power which is statutorily conferred upon the Estate Officer under Section 5B. Neither Sections 5A, 5B nor for that matter Section 5C empowers the Estate Officer to order sealing of premises even before an order of eviction is passed except in the contingencies set out in Section 5C. The power to seal premises is statutorily restricted to certain specific contingencies noted in Section 5C and that power can be exercised only upon the conditions of the provision being fulfilled. The Estate Officer is conferred with power of a Civil Court, for the purposes of holding an enquiry only in respect of certain specified matters, namely, (i) summoning and enforcing the attendance of any person, (ii) requiring the discovery and production of documents and (iii) any other matter which may be prescribed. 8. The Rules which have been made in exercise of the rule making power inter alia provide for the manner in which possession has to be taken of the public premises. Sub-rule (1) of Rule 7 provides that if any obstruction is offered or the Estate Officer is of the opinion that it is likely to be offered to the taking of possession or to the sealing of erection or work or of the public premises, the Estate Officer may obtain necessary Police assistance. Sub-rule (3) of Rule 7 provides for the manner in which premises can be sealed under Section 5C. Sub-rule (3) of Rule 7 provides for the manner in which premises can be sealed under Section 5C. The rules are in aid of the statutory powers conferred by the Act and hence, the power to seal that is conferred upon the Estate Officer under Rule 7 is in respect of those situations where statutorily, the power to seal can be exercised. Rule 7 does not confer upon the Estate Officer the power to seal premises over and above what is stipulated in the statute. That is of course a natural construction of the rule making power for, a rule making power cannot exceed the parameters of the power that is conferred by the statutory provision itself. 9. The submission which has been urged on behalf of the Estate Officer that he had inherent powers to seal premises is completely specious. The Estate Officer who is conferred with summary powers by the provisions of the Act cannot act in excess of those powers. The powers which have been conferred upon the Estate Officer have clearly been exceeded by a highhanded act of directing that the premises should be sealed, during the pendency of the enquiry and even before the enquiry has been taken to its logical conclusion. 10. For these reasons, we are of the view that the orders passed by the Estate Officer on 27 November 2009 and 1 December 2009 are ultra vires and are in excess of the powers conferred upon him by the provisions of the Act. 11. Rule is accordingly made absolute in terms of prayer clause (a) by quashing the impugned order of the Estate Officer dated 27 November 2009. The Estate Officer shall proceed to remove the seal placed on the premises forthwith. There shall be no order as to costs. Parties to act on the authenticated copy of this order, duly authenticated by the office.