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2023 DIGILAW 255 (ALL)

Rakesh Mehrotra v. State Of U. P.

2023-01-25

SAURABH SHYAM SHAMSHERY

body2023
JUDGMENT : 1. Heard Sri Shesh Kumar, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Ms. Shruti Malviya, learned counsel appearing for Life Insurance Corporation Limited. 2. Premises in question become public premises being Life Insurance Corporation, its owner, when its business was nationalised under the Life Insurance Corporation Act, 1956 (hereinafter referred to L.I.C. Act) on 16.9.1958 i.e. the date from which the L.I.C. Act brought into force. 3. Similar issue raised by other tenants of the same premises in regard to applicability of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was settled against the petitioners therein in S.P. Mehra and another vs. Additional District Judge, Court No. 9, Kanpur Nagar, Civil Misc. Writ Petition No. 66705 of 2010 decided on 18.1.2011 wherein after considering rival submissions, Co-ordinate Bench has held that: “Nazool plot over which structures in question are standing has been leased out by the State Government. Said structures in question have been erected and has been leased out to the petitioner initially by M.N. Bhargav followed by M/s Free India General Insurance Company Ltd which has been succeeded by Life Insurance Corporation of India after nationalization. This is accepted position that State Government has taken policy decision for converting the nazool land into free hold land and pursuant thereto big chunk of land has already been converted into free hold and the premises in question wherein petitioner's structures are standing qua the same also for converting nazool land into free hold land. State Government has been approached by Life Insurance Corporation of India and said application remains un-disposed of. Question is that once lease period of M/s Free India General Insurance Company Ltd succeeded by Life Insurance Corporation of India has come to an end and same has not been renewed then can it be ipso facto treated that same has ceased to be leased property of Life Insurance Corporation of India. Lease has been defined under Section 105 of Transfer of Property Act, as a lease of immoveable property i.e. transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity, in consideration of price paid or promised. Section 106 of the Act, deals with duration of certain leases in absence of written contract or local usage. Section 107 of the Act provides as to how leases are to be made. Section 106 of the Act, deals with duration of certain leases in absence of written contract or local usage. Section 107 of the Act provides as to how leases are to be made. Section 108 deals with rights and liabilities of lessor and lessee. Section 109 deals with rights of lessor's transferee and Section 110 deals with exclusion of day on which term commences. Section 111 deals with determination of lease and Section 115 deals with effect of surrender and forfeiture on under-leases. Section 116 of the Act deals with effect of holding over. In the present case accepted position is that State Government in its turn till today has not taken any action whatsoever against Life Insurance Corporation of India as per the terms and condition of lease and to the contrary record in question reflects that under free hold policy floated by the State Government, steps has been undertaken for converting the nazool land into free hold land wherein in phased manner exercise has been undertaken and qua Phase-1, and Phase-II details mentioned at page 35 of the counter affidavit has been converted into free hold and qua properties described in Phase-III, 2629.80 sq meters has already been made free hold and for balance land which is inclusive of the premises rented to petitioner proceedings for converting the land in question into free hold is still pending. Original lease period is for thirty years, said lease deed contains stipulation for renewal of lease of thirty years, and maximum period of renewal ninety years has also been provided for. Rate has also been provided for to be assessed by the Collector with right of Appeal also. In such a situation and in this background, the tenant who admittedly had taken public premises on rent cannot be permitted to raise question of premises not being taken on lease by the Life Insurance Corporation of India. For taking proceedings under 1971 Act, by Life Insurance Corporation of India is not necessary to substantiate that premises actually belongs to Corporation concerned and in cases where premises has been leased by Corporation concerned qua the same proceedings are liable to be undertaken and form the said public premises unauthorized occupant is liable to be evicted. For taking proceedings under 1971 Act, by Life Insurance Corporation of India is not necessary to substantiate that premises actually belongs to Corporation concerned and in cases where premises has been leased by Corporation concerned qua the same proceedings are liable to be undertaken and form the said public premises unauthorized occupant is liable to be evicted. Provisions of 1971 Act are special provisions providing for eviction of unauthorised occupants from public premises and for certain incidental matters and collaterally petitioners cannot be permitted to dispute the status of lessor specially when inter se State Government and Corporation concerned there is no dispute and lessee has been paying rent the provisions of Transfer of Property Act and the judgment in the case of Bhawanji Lakhamshi and others Vs. Himatlal Jamandas Dani and others reported in 1972 AIR, SC 819 will not at all help the petitioner in the facts of present case. Once Life Insurance Corporation of India is lessor and admittedly has been leased out to the petitioner, in such a situation once premises in question has to be accepted as public premise and as valid notice has been given, and petitioner has failed to vacate the premises in question, as such petitioners' status that of unauthorised occupant. Hon'ble Apex Court in the case Jiwan Dass Vs. Life Insurance Corporation of India reported in 1994 Supp. (3) SCC 694; 1995 ARC 326; 1995 SCFBRC 195 held that Section 106 of the Transfer of Property Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of "unauthorized occupation" as given in Section 2(g) of the Act of 1971 postulates that the tenancy has been determined for any reason whatsoever and therefore, when the Statute itself has given wide power to the public authorities under the Act of 1971 to determine the vacancy. It is not permissible to cut 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 Transfer of Property Act. The extract of para-4 of the reports is reproduce below: "........If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The extract of para-4 of the reports is reproduce below: "........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 discriminately 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." Hon'ble Apex Court in the case of M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India reported in AIR 1981 SC 670 , has considered the scope and effect of Section 2(g) of the Act of 1971 and has held that procedure under the said Act is summary in nature and therefore, the law as held in this case still holds field and it being the special Act will override all other Acts. Para 8 of the reports is reproduced below: "8. In the light of the principles laid down in the aforesaid cases we would test the position in the present case. So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government. Thus, the Premises Act has a very limited application. So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government. Thus, the Premises Act has a very limited application. Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves. That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Pvt. Ltd. & Anr. v. State of Punjab & Anr. 1967 (3) SCR 399 such authorities were held to form a class and, therefore, immune from challenge on Art. 14 of the Constitution. Similarly, the summary procedure prescribed by the Premises Act is also not violative of Art, 14 as held by this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay & Ors. 1975 (1) SCR 1 ." This Court in the case of Life Insurance Corporation of India Vs. Advani & Company, Kanpur & others reported in 2002 (2) ARC 62; Shree Bhagwan Goel (Shri) (deceased) represented by Smt. Kamia Goel Vs. Life Insurance Corporation of India Agra and others reported in 2008 (1) ARC 734 and Om Prakash Ashwani Vs. Life Insurance Corporation of India and another reported in 2010 (1) ARC 456 has taken similar view to this effect. On the parameter as set out, once premises in question is public premises within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and valid notice has been given and petitioners have failed to vacate the premises in question then petitioners have to be accepted as unauthorised occupant, in this background Estate Officer as well as Appellate Forum, has rightly passed order against the petitioner.” (Emphasis Supplied) 4. The above judgement was affirmed by the Supreme Court in SLP No. 14569 of 2011 decided on 8.1.2013 whereby challenge to said order was rejected. The above judgement was affirmed by the Supreme Court in SLP No. 14569 of 2011 decided on 8.1.2013 whereby challenge to said order was rejected. In above background, Sri Shesh Kumar, learned counsel for the petitioners has placed reliance on a subsequent judgement passed by the Supreme Court in Suhash Pophale vs. Oriental Insruance Company Limtied and its Estate Officer, (2014) SCC 657 and submitted that proceedings under Public Premises Act cannot be initiated against the petitioners being tenants for last number of decades and further heavy reliance was placed upon its paragraph no. 59, quoted hereinafter: “In Ashoka Marketing Ltd. v. Pubjab National Bank, 1990 4 SCC 406 , this Court was concerned with the premises of two Nationalised Banks and the Life Insurance Corporation. As far as Life Insurance Corporation is concerned, the life insurance business was nationalised under the Life Insurance Corporation Act, 1956. Therefore, as far as the premises of LIC are concerned, they will come under the ambit of the Public Premises Act from 16.9.1958, i.e the date from which the Act is brought into force. As far as Nationalised Banks are concerned, their nationalization is governed by The Banking Companies (Acquisition and Transfer of Undertakings Act, 1970, and therefore, the application of Public Premises Act to the premises of the Nationalised Banks will be from the particular date in the year 1970 or thereafter. For any premises to become public premises, the relevant date will be 16.9.1958 or whichever is the later date on which the concerned premises become the public premises as belonging to or taken on lease by LIC or the Nationalised Banks or the concerned General Insurance Companies like the first respondent. All those persons falling within the definition of a tenant occupying the premises prior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in “unauthorised occupation”. Whatever rights such prior tenants, members of their families or heirs of such tenants or deemed tenants or all of those who fall within the definition of a tenant under the Bombay Rent Act have, are continued under the Maharashtra Rent Control Act, 1999. If possession of their premises is required, that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If possession of their premises is required, that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If person concerned has come in occupation subsequent to such date, then of course the Public Premises Act, 1971 will apply.” 5. Per contra, Ms. Shruti Malviya, learned counsel for LIC submitted that once in regard to same premises a view has been taken that proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are valid and was affirmed by the Supreme Court, therefore, Suhash Pophale (supra) will not extend any help to petitioners. She also submitted that there is no document on record that the petitioners remain tenant even after the death of forefather allegedly been tenant. 6. Heard learned counsel for the parties and perused the record. 7. In regard to factual aspect of the case, there is no document on record in support of contention of petitioners that the tenancy granted in favour of forefather was continued in favour of them whereas in Suhash Pophale (supra) there was no dispute that the petitioners that have valid tenancy, therefore, the above referred paragraph of Suhash Pophale (supra) will not come into rescue the petitioners as there is no document on record that the petitioners fall within the definition of tenant occupying the premise in question prior to the relevant date i.e. 16.9.1958 and in absence of such document, the petitioners would definitely be termed to be persons in “unauthorised occupation”, therefore, a proceeding can be taken under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 8. There is another aspect of the case that under Section 2 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, there is a specific exemption from operation of the said Act of any building of which the Government or Local Authority or a Public Sector Corporation or a Cantonment Board is the landlord and has also held in Suhash Pophale (supra) that the premises in question would fall under the ambit of public premises owned by L.I.C., therefore, there is specific bar to take proceedings under the aforesaid Act against the petitioners. The judgement of S.P. Mehra (supra) squarely covers the facts of the present case, and there is no ground to take any contrary view. The judgement of S.P. Mehra (supra) squarely covers the facts of the present case, and there is no ground to take any contrary view. Therefore, there is no illegality in taking proceedings against the petitioners under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 9. Accordingly, the arguments of petitioners are sans merit and are rejected. 10. The writ petition is, accordingly, dismissed.