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2018 DIGILAW 665 (BOM)

Union of India v. Bandra Gas Service

2018-03-07

SHALINI PHANSALKAR-JOSHI

body2018
JUDGMENT : 1. Heard Mr. Desai, learned counsel for the Applicants, and Mr. Sanglikar, learned Senior Counsel, for the Respondents. 2. This Revision Application takes an exception to the Judgment and Order dated 19th October 2013 passed by the learned Judge of the Bombay City Civil Court at Fort, Greater Bombay, in Short Cause Suit No.612 of 2010, thereby overruling the objection raised by the Applicants to the jurisdiction of the Civil Court to entertain the Suit, in view of the bar created under Sections 10 and 15 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, and holding that the Civil Court has jurisdiction to entertain the Suit. 3. The Applicants herein are the owners of the premises, which are given to the Respondents on licence basis, by virtue of an 'Agreement' dated 11th December 1975. Admittedly, the premises are 'public premises' within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, (for short, “Public Premises Eviction Act”). By the notice dated 22nd December 2009, the Applicants terminated the license by giving one month's notice and called upon the Respondents to handover peaceful and vacant possession thereof to the Applicants within one month from 1st January 2010. It was further informed that, on failure of the Respondents to vacate the premises within the stipulated period, the Respondents will be treated as 'unauthorized occupants', after the expiry of the said period, and Applicants shall then initiate the action of eviction, as per the provisions of the Public Premises Eviction Act. 4. Respondents herein had then filed this Suit before the Trial Court for a declaration that the notice dated 22nd December 2009 is unlawful, illegal and void and for further declaration that, the grant of the suit premises to the Respondents is as an 'irrevocable licensee' and, therefore, the Applicants be restrained from acting on the said notice. 5. The Applicants, on their appearance in the Trial Court, filed the application at “Exhibit-2” for rejection of the plaint, under Order 7 Rule 11(d) of CPC, on the ground that the Civil Court has no jurisdiction to entertain the Suit, in view of the bar created under Sections 15 and 10 of the Public Premises Eviction Act. The Trial Court has, accordingly, framed the preliminary issue on that point and directed the parties to adduce evidence. 6. The Trial Court has, accordingly, framed the preliminary issue on that point and directed the parties to adduce evidence. 6. Meanwhile, the Respondents also filed an application at “Exhibit- 66”, claiming the relief that the application filed at “Exhibit-2” be dismissed and Notice of Motion no.626 of 2010 filed by them for grant of temporary injunction be heard and decided along with the Suit. 7. By an order dated 17th April 2012, the Trial Court allowed the application at “Exhibit-66” and rejected the application at “Exhibit-2”, holding that the order of the Estate Officer passed on 7th March 2012 was challenged by the Respondents before the Appellate Authority and it was quashed and set aside on 19th March 2012. The Trial Court held that, in view of the said order, the application at “Exhibit-2”, filed under Order 7 Rule 11(d) of CPC, has become infructuous and, accordingly, dismissed the same. 8. The Applicants had thereafter filed another application at “Exhibit-68”, under Order 7 Rule 11(d) of CPC, for rejection of the plaint on the ground that, the cause of action to file the Suit does not survive, as the eviction proceedings initiated by the Estate Officer, under the Public Premises Eviction Act, were finally disposed of. The Trial Court has rejected the said application by order dated 17th April 2012. This order of the Trial Court was challenged by the Applicants in Civil Application No.78 of 2013 in Civil Revision Application (Stamp) No.5054 of 2013. This Court has, vide its order dated 7th August 2013, allowed the said Civil Revision Application holding that, “6. It is not in dispute that the suit premises are the 'public premises', covered by the provisions of the said Act. It is not in dispute that the licence of the petitioners has been determined. It is not in dispue that only relief claimed in the plaint is for grant of declaration that the suit land has been allotted to the plaintiffs by the defendants as an 'irrevocable licence' and the averment in support of it are made in the plaint. It is not in dispute that the plaintiffs have already led the evidence and the defendants have expressed that they do not want to lead the evidence.” 9. It is not in dispute that the plaintiffs have already led the evidence and the defendants have expressed that they do not want to lead the evidence.” 9. It was, thus, held that, as the suit premises are the 'public premises', covered by the provisions of the Public Premises Eviction Act and, apparently, the question as to 'whether the Suit, as framed, is barred by the provisions of Sections 15 and 10 of the Public Premises Eviction Act', is purely a question of law, it needs to be decided by the Trial Court and as in none of the orders challenged before this Court, the said question was decided, this Court set aside both the orders passed by the Trial Court and sent back the matter to the Trial Court with a direction to decide the preliminary issue as to jurisdiction afresh in accordance with law. 10. Accordingly, the Trial Court heard learned counsel for both the parties and vide its impugned order, was pleased to hold that, as the Respondents herein are challenging the notice dated 22nd December 2009, terminating their license over the suit premises, claiming that their license in respect of the suit premises is 'irrevocable license', in view of these allegations in the plaint, the Civil Court alone has jurisdiction to determine the issue raised in the Suit and, accordingly, answered the preliminary issue framed for its consideration in the affirmative. 11. This order of the Trial Court is challenged in this Revision Application by learned counsel for the Applicants by submitting that, the impugned order passed by the Trial Court cannot be sustainable in law. According to him, once it is an admitted position that the suit premises are the 'public premises', covered under the provisions of the Public Premises Eviction Act, then, in respect of any action of eviction, whether by way of termination or revocation of licence or otherwise, the jurisdiction of the Civil Court is expressly barred, having regard to the provisions of Sections 15 and 10 of the Public Premises Eviction Act. It is submitted that, Section 10 of the Public Premises Eviction Act gives finality to the orders passed by the Estate Officer or Appellate Officer under the said Act and specifically provide that, they shall not be called in question in any original Suit, application or execution proceedings and no injunction shall be granted by any Court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act; whereas, Section 15 of the Public Premises Eviction Act places an express bar to the jurisdiction of Civil Court in respect of any action pertaining to eviction from the public premises. 12. Here in the case, it is submitted that, the notice dated 22nd December 2009 was issued by the Applicants herein for termination of the license of the Respondents with a specific understanding and direction that, if the Respondents fail to comply with the said notice, then, their possession will be treated as that of 'unauthorized occupants' and necessary action will be taken under the provisions of the Public Premises Eviction Act. Accordingly, such action of eviction is also being taken; however, by the present Suit, the Respondents are challenging the said action, that too, in a Civil Suit. Whether the Respondents are the 'irrevocable licensee' or otherwise, that question also squarely falls within the jurisdiction of the Estate Officer and hence, the Trial Court has committed an error in overruling the objection of the Applicants to the jurisdiction of the Civil Court and answering the preliminary issue of jurisdiction in the affirmative. According to learned counsel for the Applicants, therefore, the impugned order needs to be quashed and set aside, as the proceedings before the Trial Court are initiated just to give go-bye to the eviction proceedings, contemplated under the Public Premises Eviction Act. 13. Per contra, learned Senior Counsel for the Respondents has supported the impugned Judgment and Order of the Trial Court by pointing out that, the eviction proceedings initiated against the Respondents by the Estate Officer, under the provisions of the Public Premises Eviction Act, already stands disposed of, in view of the order passed in Miscellaneous Civil Appeal No.37 of 2012 and, therefore, now Civil Court alone has the jurisdiction to decide whether the Respondents are the 'irrevocable licensee' in respect of the suit plot. The subject of the license being covered under the Indian Easements Act, 1882, it is submitted that, the Trial Court has rightly held that the Civil Court alone has jurisdiction to entertain the Suit. According to learned Senior Counsel for the Respondents, therefore, no interference is warranted in the jurisdiction exercised by the Trial Court in the instant case, as the order passed by the Trial Court is in exercise of its jurisdiction and discretion. 14. Learned counsel for both the parties have relied upon the number of Judgments of the Apex Court and this Court in support of their respective contentions. 15. In the light of the facts of the present case and the Judgments relied upon by learned counsel for both the parties, this Court has to 8decide now 'whether the jurisdiction exercised by the Trial Court in holding that the Civil Court alone has jurisdiction to decide the Suit is legal, proper and correct?' 16. Admittedly, the suit premises are 'public premises' within the meaning of Section 2(e) of the Public Premises Eviction Act. This factual aspect of the case is not disputed by learned Senior Counsel for the Respondents and it is also affirmed and confirmed by this Court in its earlier order passed in Civil Application No.78 of 2013 on 7th August 2013. 17. It is a matter of record that, the notice dated 22nd December 2009, which was issued by the Applicants to Respondents, was for termination of license of the suit premises and calling upon the Respondents to vacate the suit premises, otherwise, the Applicants would be constrained to initiate action as per the provisions of the Public Premises Eviction Act. Accordingly, the Applicants had also initiated the said action, as the Respondents had failed to vacate the possession of the suit premises on the expiry of the stipulated period of one month. Accordingly, the Applicants had also initiated the said action, as the Respondents had failed to vacate the possession of the suit premises on the expiry of the stipulated period of one month. Therefore, on 24th March 2010, the Applicants had issued notice to the Respondents, under Section 4 of the Public Premises Eviction Act, informing them that, as they are now in unauthorized occupation of the public premises, as a result of termination of their license with effect from 31st January 2010 and as the premises are required by the Applicants for its bonafide use in further development, this notice of show cause was issued to the Respondents, under Section 4 of the Public Premises Eviction Act, as to why an order of eviction should not be initiated against them. 18. However, even before this notice of eviction was issued under Section 4 of the Public Premises Eviction Act, about which the Respondents had very much intimation, in view of the notice dated 22nd December 2009, the Respondents had filed this Suit before the Trial Court for declaration that, this notice dated 22nd December 2009 is unlawful, illegal and void in law and for further declaration that, the grant of suit plot to them is as an 'irrevocable licensee'. Consequential relief of injunction is also sought to restrain the Applicants from taking any action in pursuance of this notice and from dispossessing the Respondents from the suit plot. 19. In this backdrop, the provisions of Section 15(a) of the Public Premises Eviction Act need to be considered. The said Section clearly provides that, “15. Bar of Jurisdiction : No Court shall have jurisdiction to entertain any Suit or proceeding in respect of – (a) The eviction of any person, who is in unauthorized occupation of any public premises”. 20. Section 15(a) of the Public Premises Eviction Act, therefore, places an express bar to the jurisdiction of the Civil Court in respect of eviction of any person, who is in unauthorized occupation of any ‘public premises’. 20. Section 15(a) of the Public Premises Eviction Act, therefore, places an express bar to the jurisdiction of the Civil Court in respect of eviction of any person, who is in unauthorized occupation of any ‘public premises’. In the present case, therefore, as the suit premises are, admittedly, 'public premises' and the action initiated by the Applicants is in respect of the “eviction” of the Respondents from the said premises, after the Respondents' possession became of an “unauthorized occupants”, in view of termination of the license issued to them, it follows that, there is express bar to the jurisdiction of the Civil Court to entertain the present Suit, in view of Clause (a) of Section 15 of the Public Premises Eviction Act, as by this Suit, the Respondents are restraining the Applicants from taking any action of eviction in respect of the 'public premises', either on the basis of the notice issued on 22nd December 2009 or thereafter. 21. The submission of learned Senior Counsel for the Respondents is that, the prayer to declare this notice dated 22nd December 2009 as unlawful, illegal and void in law, is deleted by the Respondents from the plaint and, therefore, now the only prayer, which remains, is for declaration that the grant of the suit premises to the Respondents is as an 'irrevocable licensee' and Civil Court, therefore, alone has jurisdiction to decide the Suit. 22. However, in my considered opinion, this contention also cannot be accepted as the perusal of the plaint clearly goes to show that, the cause of action for filing the present Suit arose on account of receipt of this notice dated 22nd December 2009. In paragraph Nos.63, 68, 73, 77, 78, 81 and even in paragraph Nos.82 and 83 of the plaint, Respondents have categorically stated that, the cause of action for the Suit arose on account of the receipt of this notice dated 22nd December 2009 and how that notice is illegal in view of their license being irrevocable. Therefore, mere deletion of the prayer clause for declaring that the notice dated 22nd December 2009 as illegal, is not sufficient as the entire claim of the Respondents is based on the said notice, in pursuance of which their possession is declared as that of an unauthorized occupants. 23. Therefore, mere deletion of the prayer clause for declaring that the notice dated 22nd December 2009 as illegal, is not sufficient as the entire claim of the Respondents is based on the said notice, in pursuance of which their possession is declared as that of an unauthorized occupants. 23. Apart from that, whether the possession of the Respondents in the suit premises is that of an 'irrevocable licensee' or otherwise, can also be decided only by the Estate Officer and not by the Civil Court. As held by the Apex Court in the case of B. Sharma Rao H. Ganeshmal and Anr. Vs. Head Quarters Assistant and Ors., (1998) 9 SCC 577 , whether the Respondents are now 'authorized occupants' or not is required to be determined by the Estate Officer, under Section 5 of the Public Premises Eviction Act and not by the Civil Court. In this reported authority also, the Petitioners had filed a Suit challenging eviction proceedings on the ground that, they were not unauthorized occupants, but they were in occupation as 'tenants' of the premises, by virtue of Section 116 of the Transfer of Property Act and, therefore, Civil Court alone has jurisdiction to entertain the Suit. While rejecting this contention, it was held that, “Whether the Petitioners are unauthorized occupants or not is required to be determined by the Estate Officer under Section 5 of the Act and a person feeling aggrieved by such determination can assail the same in appeal before the Appellate Authority. Therefore, the Suit filed by the Petitioners could not be entertained by the Civil Court, in view of the bar to jurisdiction contained in Section 16 of the Central Act and Section 16 of the Karnataka State Act”. 24. In the instant case also, whether in view of the notice dated 22nd December 2009, terminating the license of the Respondents over the suit premises, whether the possession of the Respondents over the suit premises is unauthorized occupation or not, can be considered by the Estate Officer alone and Civil Court cannot have any jurisdiction even to consider whether their possession is that of an 'irrevocable licensee' or not. It will be only for the Estate Officer to decide and determine this issue, under Section 5 of the Public Premises Eviction Act, and if Respondents felt aggrieved by such determination, they can assail the said finding in the Appeal before the Appellate Authority; however, the Civil Court cannot enter into that issue. 25. Moreover, as rightly submitted by learned counsel for the Applicants, the Respondents have accepted the jurisdiction of the Estate Officer to determine the question of eviction from the suit premises. It is pertinent to note that, in pursuance of the notice dated 24th March 2010 issued by the Estate Officer, under Section 4 of the Public Premises Eviction Act, the Estate Officer has passed an order on 7th March 2012, under Section 5-A(2) of the Public Premises Eviction Act, calling upon the Respondents to vacate the suit premises. Respondents have challenged the said order by preferring Miscellaneous Civil Appeal No.37 of 2012, under Section 9 of the Public Premises Eviction Act. Thus, the Respondents have accepted the jurisdiction of the Estate Officer and challenged the order passed by him, by taking recourse to the remedy provided under the Public Premises Eviction Act. Now Respondents cannot say that, it is not the Estate Officer, but, the City Civil Court, which has the jurisdiction to decide the dispute between the parties. 26. It is apart that, the Miscellaneous Civil Appeal No.37 of 2012 came to be allowed by the City Civil Court, Bombay, but that was not on the ground that the Estate Officer has no jurisdiction to issue the notice, but, on the ground that, the notice of termination of licensee did not contain a single word about 'unauthorized construction' and, therefore, it was held that, the notice under Section 5-A(2) of the Public Premises Eviction Act was not legal. It was also found that, there was apparent bias shown by the Estate Officer and hence, the action taken by him was set aside. But, the fact remains that, the Estate Officer was considered to be having jurisdiction, in view of the fact that the suit premises are 'public premises' and the action was required to be taken and accordingly taken, under the Public Premises Eviction Act. But, the fact remains that, the Estate Officer was considered to be having jurisdiction, in view of the fact that the suit premises are 'public premises' and the action was required to be taken and accordingly taken, under the Public Premises Eviction Act. No contention was raised by the Respondents in the said proceedings that they were in possession as an 'irrevocable licensee' and, therefore, the Estate Officer has no jurisdiction to pass such order. If such contention was raised, even the Appellate Authority would have held that the Appeal not to be maintainable, in view of Section 9 of the Public Premises Eviction Act. 27. Thus, the point to be stressed is that, once the premises are held to be 'public premises' and the action is taken for “eviction”, then, it follows that, the jurisdiction of the Civil Court stands expressly barred under Section 15(a) of the Public Premises Eviction Act. 28. As regards the Judgment of the Apex Court in the case of Dr. Suhas H. Pophale Vs. Oriental Insurance Company Limited and its Estate Officer, (2014) 4 SCC 657 , relied upon by learned Senior Counsel for the Respondents, admittedly, it cannot be made applicable to the facts of the present case, as, in that case, the issue raised for consideration before the Apex Court was, 'whether the provisions of the Public Premises Eviction Act can be retrospectively made applicable to the premises, which were let out even prior to 16th September 1958 i.e. prior to the Act becoming applicable ?'. Here in the case, admittedly, the suit premises are let out to the Respondents in the year 1975 i.e. after the Public Premises Eviction Act became applicable. Therefore, the said Judgment cannot be of any assistance. 29. Even as regards the Judgment of this Court [Coram : M.S. Sonak, J.] in Civil Writ Petition No.6075 of 2014, along with connected matters, in the case of Life Insurance Corporation of India Vs. Smt. Alexander Pothen, dated 7th September 2015, also, the premises were let out prior to the Public Premises Eviction Act became applicable. Hence, it was held that, the order passed by the Trial Court, declining to frame preliminary issue on the point of jurisdiction, did not call for any interference in the Revision. Smt. Alexander Pothen, dated 7th September 2015, also, the premises were let out prior to the Public Premises Eviction Act became applicable. Hence, it was held that, the order passed by the Trial Court, declining to frame preliminary issue on the point of jurisdiction, did not call for any interference in the Revision. It was also found that, the Life Insurance Corporation has not, till then, issued notice under Public Premises Eviction Act or commenced any proceedings under the said Act. In view thereof, it was held that, the view taken by the Trial Court cannot be regarded as being in patent excess of jurisdiction, so as to warrant interference therein under Article 227 of the Constitution of India. 30. In the instant case, when, admittedly, the premises are given on license to the Respondents, after the Public Premises Eviction Act became applicable and as the relief sought by the Respondents in the Suit is against the proposed eviction and not any other relief, as contemplated under the Rent Act or the Easement Act, as held in the case of Banatwala and Company Vs. Life Insurance Corporation of India and Anr., (2011) 13 SCC 446 , like, control of rent, repairs of certain premises, eviction of certain premises etc., neither the Civil Court, nor the Small Causes Court, either under the Easement Act or under the Rent Act, can have jurisdiction to entertain the Suit. 31. The impugned order, therefore, passed by the Trial Court, overruling the objection raised by the Applicants to the jurisdiction of the Civil Court and holding that the Civil Court has jurisdiction to entertain the Suit, being against the express bar laid down under Section 15(a) of the Public Premises Eviction Act, is patently illegal, without jurisdiction and hence, liable to be quashed and set aside. 32. The Revision Application is, accordingly, allowed. The impugned order passed by the Trial Court stands quashed and set aside. 33. As a result, it is held that, the Civil Court has no jurisdiction to entertain the Suit. Hence, the Suit stands dismissed. 34. At this stage, learned Senior Counsel for the Respondents seeks continuation of interim protection granted to them during pendency of this Revision Application, in order to enable the Respondents to approach the Hon'ble Supreme Court. 35. 33. As a result, it is held that, the Civil Court has no jurisdiction to entertain the Suit. Hence, the Suit stands dismissed. 34. At this stage, learned Senior Counsel for the Respondents seeks continuation of interim protection granted to them during pendency of this Revision Application, in order to enable the Respondents to approach the Hon'ble Supreme Court. 35. Considering the fact that, the interim protection was granted during the pendency of the proceeding before the trial Court and also in this Court, the said interim protection is extended for a period of eight weeks from today.