Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1970 OF 2014

(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.20625/2010)

Dr. Suhas H. Pophale …

Appellant

Versus

Oriental Insurance Co. Ltd. and

Its Estate Officer …

Respondents

J U D G E M E N T

H.L. Gokhale J.

Leave granted.

2. This appeal by special leave raises the question as

to whether the rights of an occupant/licensee/ tenant

protected under a State Rent Control Act (Bombay Rent Act,

1947 and its successor the Maharashtra Rent Control Act,

1999, in the instant case), could be adversely affected by

application of the Public Premises (Eviction of Unauthorised

Page 2 Occupants) Act, 1971 (‘Public Premises Act’ for short)? This

question arises in the context of the eviction order dated

28.5.1993 passed by the respondent No. 2, Estate Officer of

the first respondent, invoking the provisions of the Public

Premises Act with respect to the premises occupied by the

appellant since 20.12.1972. The eviction order has been

upheld by the Bombay High Court in its impugned judgment

dated 7.6.2010, rejecting the Writ Petition No.2473 of 1996

filed by the appellant herein.

The facts leading to this appeal are this wise:-

3. One Mr. Eric Voller was a tenant of the Indian

Mercantile Insurance Company Ltd. (hereinafter referred to

as the erstwhile Insurance Co.), the predecessor in title of the

first respondent in respect of the premises being Flat No.3,

Second Floor, Indian Mercantile Mansion (formerly known as

Waterloo Mansion), Wodehouse Road, Opposite Regal

Cinema, Colaba, Mumbai. This Mr. Voller executed a leave

and licence agreement in respect of these premises on

20.12.1972 in favour of the appellant initially for a period of

two years, and put him in exclusive possession thereof. Mr.

2

Page 3 Voller, thereafter migrated to Canada with his family. The

appellant is a practicing physician. The erstwhile insurance

company did not object to the appellant coming into

exclusive possession of the said premises. In fact, it is the

case of the appellant that when Mr. Voller sought the transfer

of the tenancy to the appellant, the General Manager of the

said insurance company, by his reply dated 16.1.1973,

accepted the appellant as the tenant, though for residential

purposes only. The said erstwhile insurance company,

thereafter, started accepting the rent directly from the

appellant. It is also the case of the appellant that on

14.3.1973, he wrote to the said General Manager seeking a

permission for a change of user i.e. to use the premises for

his clinic. It is also his case that on 18.4.1973, the General

Manager wrote back to him that the erstwhile insurance

company had no objection to the change of user, provided

the Municipal Corporation of Greater Mumbai gave no

objection.

4. The erstwhile insurance company subsequently

merged on 1.1.1974 into the first respondent company which

3

Page 4 is a Government Company. The management of the erstwhile

insurance company had however been taken over by the

Central Government with effect from 13.5.1971, pending its

nationalisation and that of other private insurance

companies. The first respondent, thereafter, addressed a

notice dated 12.7.1980 to Mr. E. Voller terminating his

tenancy with respect to the said premises, and then filed a

suit for eviction against Mr. E. Voller and the appellant being

R.A.E. Suit No.1176/3742 of 1981 in the Court of Small

Causes at Mumbai, under the provisions of the then

applicable Bombay Rents, Hotel and Lodging Houses Rates

Control Act, 1947 (‘Bombay Rent Act’ for short). Initially the

suit came to be dismissed for default, but an application was

made under Order 9 Rule 9 of Code of Civil Procedure to set

aside the said order. The application was allowed, and the

suit remained pending.

5. The appellant then sent a letter dated 22.11.1984

to the first respondent requesting them to regularize his

tenancy as a statutory tenant. The first respondent,

however, served the appellant notices under Section 4 and 7

4

Page 5 of the Public Premises Act, to show cause as to why he should

not be evicted from the concerned premises, and to pay

damages as specified therein for unauthorised occupation as

claimed. The first respondent followed it by preferring Case

No.10 and 10A of 1992 before the respondent No. 2 Estate

Officer under the Public Premises Act, to evict Mr. E. Voller

and the appellant, and also to recover the damages. After

initiating these proceedings, the first respondent withdrew on

22.2.1994 the suit filed in the Court of Small Causes. It is,

however, relevant to note that in paragraph No. 4 of their

case before the Estate Officer, the first respondent

specifically accepted that Mr. E. Voller had sublet or given on

leave and licence basis or otherwise transferred his interest

in the said flat to the appellant in or about 1972, though

without any authority from the respondent No. 1. The first

respondent alleged that the appellant had carried out

structural changes. The appellant denied the allegation. He

claimed that he had effected some essential minor repairs for

maintenance of the premises since the first respondent was

neglecting to attend the same. The appellant filed a reply

5

Page 6 pointing out that he had been accepted as a tenant by the

predecessor of the first respondent by their earlier referred

letter dated 16.1.1973. The first respondent, however,

responded on 5.1.1993 stating that they did not have any

record of the erstwhile insurance company prior to 1975. The

second respondent thereafter passed an order on 28.5.1993

directing eviction of Mr. E. Voller and the appellant, and also

for recovery of damages at the rate of Rs.6750 per month

from 1.9.1980.

6. Being aggrieved by the said order, the appellant

filed an appeal before the City Civil Court at Mumbai under

Section 9 of the Public Premises Act, which appeal was

numbered as Misc. Appeal No.79/93. The City Civil Court set

aside the order of damages, and remanded the matter to the

second respondent to reconsider that aspect, but upheld the

order of eviction by its judgment and order dated 17.1.1996.

The appellant thereupon filed a writ petition bearing

No.2473/1996 before the High Court on 15.4.1996 to

challenge that part of the appellate order which upheld the

order of eviction. The High Court dismissed the Writ Petition,

6

Page 7 by the impugned judgment and order dated 7.6.2010, with

costs.

7. The principal contention raised by the appellant

right from the stage of the proceedings before the

respondent No. 2, and even before the High Court, was that

his occupation of the concerned premises was protected

under the newly added S 15A of the Bombay Rent Act with

effect from 1.2.1973, i.e. prior to the first respondent

acquiring the title over the property from 1.1.1974.

Therefore, he could not be evicted by invoking the provisions

of Public Premises Act, and by treating him as an

unauthorised occupant under that act. The impugned order

of the High Court rejected the said submission holding that

the provisions of the Bombay Rent Act were not applicable to

the premises concerned, and the said premises were covered

under the Public Premises Act. The High Court principally

relied upon the judgment of a Constitution Bench of this

Court in Ashoka Marketing Ltd. Vs. Punjab National

Bank reported in 1990 (4) SCC 406. As per the view taken

by the High Court, this judgment rejects the contention that

7

Page 8 the provisions of the Public Premises Act cannot be applied to

the premises which fall within the ambit of a State Rent

Control Act. The High Court held that the Public Premises Act

became applicable to the concerned premises from

13.5.1971 itself i.e. the appointed date under the General

Insurance (Emergency Provisions) Act, 1971 wherefrom the

management of the erstwhile insurance company was taken

over by the Central Government, and not from the date of

merger i.e. 1.1.1974. It is this judgment which is under

challenge in the present appeal.

8. Mr. Rohinton F. Nariman, learned senior counsel

has appeared for the appellant and Mr. Harin P. Raval,

learned senior counsel has appeared for the respondents.

The principal issue involved in the matter:-

9. To begin with, it has to be noted that the

relationship between the erstwhile insurance company as the

landlord and the appellant as the occupant, at all material

times was governed under the Bombay Rent Act. Like all

other rent control enactments, this Act has been passed as a

welfare measure, amongst other reasons to protect the

8

Page 9 tenants against unjustified increases above the standard

rent, to permit eviction of the tenants only when a case is

made out under the specified grounds, and to provide for a

forum and procedure for adjudication of the disputes

between the landlords and the tenants. The legislature of

Maharashtra thought it necessary to protect the licensees

also in certain situations. Therefore, this act was amended,

and a section was inserted therein bearing Section No.15A to

protect the licensees who were in occupation on 1.2.1973.

This Section reads as follows:-

“15A. Certain licensees in occupation

on 1

st

February 1973 to become tenants

(1)Notwithstanding anything contained

elsewhere in this Act or anything contrary in

any other law for the time being in force, or

in any contract where any person is on the

1

st

day of February 1973 in occupation of any

premises, or any part thereof which is not

less than a room, as a licensee he shall on

that date be deemed to have become, for

the purpose of this Act, the tenant of the

landlord, in respect of the premises or part

thereof, in his occupation.

(2)The provisions of sub-section (1) shall

not affect in any manner the operation of

sub-section (1) of section 15 after the date

aforesaid.”

We may note that S 15(1) prohibits sub-letting of

premises.

9

Page 10 10. As far as the insurance business in India is

concerned, prior to independence, it was owned and

operated by private entities. The governing law for insurance

in India was, and still is the Insurance Act, 1938. Post-

independence, the Industrial Policy Resolution of 1956 stated

that the Life Insurance industry in India was to be

nationalised. Therefore, the Life Insurance Corporation Act of

1956 was passed creating the Life Insurance Corporation

(LIC), as a statutory corporation, and transferring the assets

of all the private life insurance companies in India to LIC.

Sometimes around 1970-71, it was felt that the general

insurance industry was also in need of nationalisation.

Therefore, first the General Insurance (Emergency Provisions)

Act, 1971 was passed by the Parliament which provided for

the taking over of the management of general insurance

business. Though the Act received the assent of the

President on 17.6.1971, it was deemed to have come into

force on 13.5.1971 from which date the Central Government

assumed the management of General Insurance Business as

an initial step towards the nationalisation. Thereafter, the

10

Page 11 General Insurance Business (Nationalisation) Act, 1972 was

passed on 20.9.1972. Section 16 of this Act contemplated the

merger of the private insurance companies into certain other

insurance companies. Consequently, these private insurance

companies merged into four insurance companies viz.,

(a)The National Insurance Company Ltd.,

(b)The New India Assurance Company Ltd.,

(c)The Oriental Insurance Company Ltd., and

(d)The United India Insurance Company Ltd.

These four companies are fully owned subsidiaries of the

General Insurance Corporation of India which is a

Government Company registered under Companies Act,

1956, but incorporated as mandated under Section 9 of the

above referred Nationalisation Act. The Central Government

holds not less than 51 per cent of the paid up share capital of

the General Insurance Corporation. The above referred

Indian Mercantile Insurance Company Ltd. merged into the

first respondent-Oriental Insurance Company Ltd. w.e.f.

1.1.1974.

11

Page 12 11. There is one more important development which is

required to be noted. The Public Premises Act, 1971 (40 of

1971) came to be passed in the meanwhile. As per its

preamble, it is “an act to provide for eviction of unauthorised

occupants from public premises and for certain incidental

matters” such as removal of unauthorised construction,

recovery of arrears of rent etc. It came into force on

23.8.1971, but Section 1(3) thereof states that it shall be

deemed to have come into force on 16.9.1958, except

Section 11 (on offences and penalty) and Sections 19 and 20

(on repeal and validation). This is because from 16.9.1958, its

predecessor Act viz. The Public Premises (Eviction of

Unauthorised Occupants) Act (32 of 1958) was in force for

similar purposes, and which was repealed by the above

referred Section 19 of the 1971 Act. As provided under

Section 2 (e) (2) (i) of this Act, the definition of ‘Public

Premises’, amongst others, covers the premises belonging to

or taken on lease by or on behalf of any company in which

not less than fifty one per cent of the paid up share capital

12

Page 13 was held by the Central Government. The definition of public

premises under Section 2(e) of this Act reads as follows:-

“2. Definitions…..

[(e) “public premises” means—

(1) any premises belonging to, or taken on lease or

requisitioned by, or on behalf of, the Central

Government, and includes any such premises

which have been placed by the Government,

whether before or after the commencement of

the Public Premises (Eviction of Unauthorised

Occupants) Amendment Act, 1980, under the

control of the Secretariat of either House of

Parliament for providing residential

accommodation to any member of the staff of

that Secretariat;

(2) any premises belonging to, or taken on lease by,

or on behalf of,—

(i) any company as defined in Section 3 of the

Companies Act, 1956 (1 of 1956), in which not

less than fifty-one per cent of the paid-up

share capital is held by the Central

Government or any company which is a

subsidiary (within the meaning of that Act) of

the first-mentioned company,

(ii) any Corporation [not being a company as

defined in Section 3 of the Companies Act,

1956 (1 of 1956), or a local authority]

established by or under a Central Act and

owned or controlled by the Central

Government,

(iii) any University established or incorporated by

any Central Act,

(iv) any Institute incorporated by the Institutes of

Technology Act, 1961 (59 of 1961),

(v) any Board of Trustees constituted under the

Major Port Trusts Act, 1963 (38 of 1963),

13

Page 14 (vi) the Bhakra Management Board constituted

under Section 79 of the Punjab Reorganisation

Act, 1966 (31 of 1966), and that Board as and

when renamed as the Bhakra-Beas

Management Board under sub-section (6) of

Section 80 of that Act;

[(vii) any State Government or the Government of

any Union Territory situated in the National

Capital Territory of Delhi or in any other Union

Territory;

(viii) any Cantonment Board consitituted under

the Cantonments Act, 1924 (2 of 1924); and]

(3) in relation to the [National Capital Territory of

Delhi],—

(i) any premises belonging to the Municipal

Corporation of Delhi, or any municipal

committee or notified area committee,

(ii) any premises belonging to the Delhi

Development Authority, whether such

premises are in the possession of, or leased

out by, the said Authority, [and]

[(iii) any premises belonging to, or taken on lease

or requisitioned by, or on behalf of any State

Government or the Government of any Union

Territory;]”

12. The consequence of this development was that in

view of the merger of the erstwhile insurance company into

the first respondent, (of which not less than 51 per cent share

holding was that of the Central Government,) the Public

Premises Act became applicable to its premises. It is the

contention of the appellant that although the Act is otherwise

14

Page 15 deemed to have come into force from 16.9.1958, as far as

the present premises are concerned, the Act became

applicable to them from 1.1.1974 when the erstwhile

insurance company merged into the first respondent. Then

only it could be said that the premises ‘belonged’ to a

Government Company. However, since the appellant’s

occupation of the said premises was protected by Section

15A of the Bombay Rent Act which Section had become

enforceable prior thereto from 1.2.1973, he could not be said

to be in ‘unauthorised occupation’ and, therefore, could not

be evicted by invoking the provisions of the Public Premises

Act. On the other hand, the contention of the respondents is

that the Public Premises Act became applicable to the

concerned premises from 13.5.1971 itself, when the

management of the erstwhile insurance company was taken

over by the Central Government, and the rejection of the writ

petition by the High Court on that ground was justified. The

principal issue involved in this matter is thus about the

applicability of the Public Premises Act to the premises

occupied by the appellant.

15

Page 16 Submissions of the rival counsel:-

13. Learned Senior Counsel for the appellant, Mr.

Nariman submitted that the finding of the High Court that the

Public Premises Act applies to these premises from 13.5.1971

was an erroneous one. That was the date on which the

Central Government assumed the management of the

erstwhile private insurance company. The erstwhile

insurance company continued to exist until it merged in the

appellant-company w.e.f. 1.1.1974. In the circumstances,

although the Public Premises Act came into force on

23.8.1971 (with deemed date of coming into force being

16.9.1958), and although the appointed date for assuming

management was 13.5.1971, the premises could be said to

have ‘belonged’ to the first respondent as per the definition

under Section 2(E)(2)(i) of the Act, only from 1.1.1974, when

the merger took place. Prior thereto the Bombay Rent Act

had been amended and the licensees in occupation, were

declared as deemed tenants, by virtue of Section 15A of the

said Act. The appellant has been in continuous occupation of

the said premises as a licensee from 20.12.1972. On

16

Page 17 1.2.1973 his status got elevated to that of a ‘deemed tenant’

which was prior to the respondent No. 1 becoming owner of

the building from 1.1.1974. The submission of Mr. Nariman

was that the appellant had a vested right under the statute

passed by the State Legislature protecting the licensees, and

since the Public Premises Act became applicable from

1.1.1974, the rights of the tenants and also those of the

licensees protected under the State Act prior to 1.1.1974,

could not be taken away by the application of the Public

Premises Act which can apply only prospectively. In his

submission the eviction proceedings under the Public

Premises Act against the appellant were therefore, null and

void. The only remedy available for the first respondent for

evicting the appellant would be under the Bombay Rent Act

or under the Maharashtra Rent Control Act, 1999 which has

replaced the said Act with effect from 31.3.2000. We may

note at this stage that Mr. Nariman made a statement that

the appellant is making out a case on the basis of his legal

rights as a protected licencee, and not on the basis of the

17

Page 18 earlier mentioned correspondence between the appellant and

the erstwhile insurance company.

14. Learned senior counsel for the respondents Mr.

Raval, on the other hand, submitted that once the

management of the erstwhile insurance company was taken

over, the Public Premises Act became applicable. Therefore,

it was fully permissible for the first respondent to initiate the

proceedings to evict the appellant from the public premises.

In his view, the legal position, in this behalf, has been settled

by the judgment of the Constitution Bench in the above

referred Ashoka Marketing case, and the view taken by the

High Court with respect to the date of applicability of the

Public Premises Act was in consonance with the said

judgment.

15. As against that, it is the submission of the Mr.

Nariman that the judgment in Ashoka Marketing (supra)

has to be understood in its context, and that it did not lay

down any such wide proposition as Mr. Raval was canvassing.

He pointed out that the judgment in Ashoka Marketing

(supra) was with respect to the overriding effect of the

18

Page 19 Public Premises Act vis-à-vis the Delhi Rent Control Act, which

are both Acts passed by the Parliament, and where the

premises fall within the ambit of both the enactments. In the

instant case, we are concerned with one Act passed by the

Parliament, and another by a State Legislature. That apart, in

his submission, the Public Premises Act must firstly apply to

the concerned premises, and in his submission the concerned

premises did not fall within the ambit of that act. That being

so, in any case, the rights of the tenants who were protected

under the State Act prior to passing of this Act, could not be

said to have been extinguished by virtue of coming into force

of the Public Premises Act.

Consideration of the submissions

The Judgment in the case of Ashoka Marketing

16. Inasmuch as, the judgment in the case of Ashoka

Marketing (supra) is crucial for determining the issue in

controversy, it would be relevant to refer to the said decision

in detail. When we analyse the judgment in Ashoka

Marketing (supra), we have to first see as to what was the

subject matter of the controversy before this Court in Ashoka

19

Page 20 Marketing? It was with respect to the eviction of the

occupants from the premises owned by Punjab National Bank

and Allahabad Bank which are both nationalised banks, and

by Life Insurance Corporation, which is a Statutory

Corporation. In paragraph 1 of this judgment of the

Constitution Bench, the question framed by the Court for its

consideration was as follows:-

“whether a person who was inducted as a tenant in

premises, which are public premises for the purpose of

the Public Premises (Eviction of Unauthorised Occupants)

Act, 1971 (hereinafter referred to as the ‘Public Premises

Act’), and whose tenancy has expired or has been

terminated, can be evicted from the said premises

as being a person in unauthorised occupation of the

premises under the provisions of the Public Premises Act

and whether such a person can invoke the protection of

the Delhi Rent Control Act, 1958 (hereinafter referred to

as the ‘Rent Control Act’). In short, the question is,

whether the provisions of the Public Premises Act

would override the provisions of the Rent Control

Act in relation to premises which fall within the

ambit of both the enactments .”

(emphasis

supplied)

17. We may refer to the definition of

“unauthorised occupation” as provided under Section

2(g) of the Public Premises Act at this stage. It reads as

follows:-

20

Page 21 “2. Definitions….

(g) “unauthorised occupation”, in

relation to any public premises, means 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.”

As can be seen from this definition, it consists of two parts. In

paragraph 30 of the above judgment also, this Court noted

that the definition of ‘unauthorized occupation’ in Section

2(g) of the Public Premises Act, was in two parts. The first

part of this definition deals with persons who are in

occupation of the Public Premises ‘without authority for such

occupation’, and the second part deals with those in

occupation of public premises, whose authority to occupy the

premises ‘has expired or has been determined for any reason

whatsoever’. As stated in paragraph 1 of the judgment, the

Constitution Bench was concerned with the second part of

the definition. As far as these two parts are concerned, the

Court observed in paragraph 30 as follows:-

21

Page 22 “30. The definition of the expression

‘unauthorised occupation’ contained in Section

2(g) of the Public Premises Act is in two parts. In

the first part the said expression has been

defined to mean the occupation by any person

of the public premises without authority for

such occupation. It implies occupation by a

person who has entered into occupation of any

public premises without lawful authority as well

as occupation which was permissive at the

inception but has ceased to be so. The second

part of the definition is inclusive in nature and it

expressly covers 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. This

part covers a case where a person had entered

into occupation legally under valid authority but

who continues in occupation after the authority

under which he was put in occupation has

expired or has been determined. The words

“whether by way of grant or any other mode of

transfer” in this part of the definition are wide in

amplitude and would cover a lease because

lease is a mode of transfer under the Transfer

of Property Act. The definition of unauthorised

occupation contained in Section 2( g) of the

Public Premises Act would, therefore, cover a

case where a person has entered into

occupation of the public premises legally as a

tenant under a lease but whose tenancy has

expired or has been determined in accordance

with law.”

18. Thereafter, the Court dealt with the issue of conflict

between the two enactments and whether the Public

Premises Act, would override the Delhi Rent Control Act. As

22

Page 23 this Court noted in paragraph 49 of the said judgment, both

these statutes have been enacted by the same legislature,

i.e. Parliament, in exercise of the legislative powers in

respect of the matters enumerated in the Concurrent List.

With respect to the rent control legislations enacted by the

State Legislatures, this Court observed in paragraph 46 as

follows:-

“46.As regards rent control legislation

enacted by the State Legislature the position

is well settled that such legislation falls

within the ambit of Entries 6, 7 and 13 of List

III of the Seventh Schedule to the

Constitution (See. Indu Bhushan Bose Vs.

Rama Sundari Devi

1

, V. Dhanpal Chettiar

case

2

; Jai Singh Jairam Tyagi Vs.

Mamanchand Ratilal Agarwal

3

and

Accountant and Secretarial Services Pvt. Ltd.

Vs. Union of India

4

.”

1. (1969) 2 SCC 289 : (1970) 1 SCR 443, 2. (1979) 4 SCC 214 : (1980) 1 SCR

334

3.(1980) 3 SCC 162 : (1980) 3 SCR 224, 4. (1988) 4 SCC 324

19. As far as Public Premises Act is concerned,

paragraph 48 of this judgment, referred to the earlier

judgments in Accountant and Secretarial Services Pvt.

Ltd. Vs. Union of India reported in 1988 (4) SCC 324, and

Smt. Saiyada Mossarrat Vs. Hindustan Steel Ltd.

reported in 1989 (1) SCC 272. In Accountant and

23

Page 24 Secretarial Service Pvt. Ltd. (supra) , this Court had held

that the Public Premises Act is also referable to Entries 6, 7

and 13 of the Concurrent List. At the end of paragraph 48, of

Ashoka Marketing this Court held:-

“………..There is no inconsistency

between the decisions of this Court in

Accountant and Secretarial Services Pvt. Ltd.

and Smt. Saiyada Mossarrat case in as much

as in both the decisions it is held that the

Public Premises Act insofar as it deals with a

lessee or licensee of premises other than

premises belonging to the Central

Government has been enacted in exercise of

the legislative powers in respect of matters

enumerated in the Concurrent List. We are in

agreement with this view.”

20. Thereafter, on the question as to whether the

Public Premises Act overrides the Delhi Rent Control Act, this

Court observed as follows at the end of paragraph 49:-

“In our opinion the question as to

whether the provisions of the Public

Premises Act override the provisions of the

Rent Control Act will have to be considered

in the light of the principles of statutory

interpretation applicable to laws made by

the same legislature.”

In this context, the Court noted that the two principles which

are to be applied are (i) later laws abrogate earlier contrary

laws, and (ii) a general provision does not derogate from a

24

Page 25 special one. In paragraph 54, the Court noted that Public

Premises Act is a later enactment having been enacted on

23.8.1971, whereas the Delhi Rent Control Act, was enacted

on 31.12.1958. Thereafter the Court observed in paragraph

55 as follows:-

“55. The Rent Control Act makes a

departure from the general law regulating

the relationship of landlord and tenant

contained in the Transfer of Property Act

inasmuch as it makes provision for

determination of standard rent, it specifies

the grounds on which a landlord can seek

the eviction of a tenant, it prescribes the

forum for adjudication of disputes between

landlords and tenants and the procedure

which has to be followed in such

proceedings. The Rent Control Act can,

therefore, 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 eviction of

unauthorised occupants from public

premises. As opposed to the general law

which provides for filing of a regular suit for

recovery of possession of property in a

competent court and for trial of such a suit in

accordance with the procedure laid down in

the Code of Civil Procedure, the Public

Premises Act confers the power to pass an

order of eviction of an unauthorised

occupant in a public premises on a

designated officer and prescribes the

procedure to be followed by the said officer

before passing such an order. Therefore, the

25

Page 26 Public Premises Act is also a special statute

relating to eviction of unauthorised

occupants from public premises. In other

words, both the enactments, namely,

the Rent Control Act and the Public

Premises Act, are special statutes in

relation to the matters dealt with

therein. Since, the Public Premises Act is a

special statute and not a general enactment

the exception contained in the principle that

a subsequent general law cannot derogate

from an earlier special law cannot be

invoked and in accordance with the principle

that the later laws abrogate earlier contrary

laws, the Public Premises Act must prevail

over the Rent Control Act.”

(emphasis supplied)

21. In paragraph 62, this Court noted the objects and

reasons of the Delhi Rent Control Act, which are as follows:-

62.….(a)to devise a suitable machinery for

expeditious adjudication of proceedings

between landlords and tenants;

(b)to provide for the determination of the

standard rent payable by tenants of the

various categories of premises which should

be fair to the tenants, and at the same time,

provide incentive for keeping the existing

houses in good repairs, and for further

investments in house construction; and

(c)to give tenants a larger measure of

protection against eviction……..

22. In paragraph 63, this Court noted the statement of

objects and reasons of the Public Premises Act, which are as

follows:-

26

Page 27 “63………”The court decisions, referred

to above, have created serious difficulties for

the government inasmuch as the

proceedings taken by the various Estate

Officers appointed under the Act either for

the eviction of persons who are in

unauthorised occupation of public premises

or for the recovery of rent or damages from

such persons stand null and void.... It has

become impossible for government to

take expeditious action even in flagrant

cases of unauthorised occupation of

public premises and recovery of rent or

damages for such unauthorised

occupation. It is, therefore, considered

imperative to restore a speedy machinery for

the eviction of persons who are in

unauthorised occupation of public premises

keeping in view at the same time the

necessity of complying with the provisions of

the Constitution and the judicial

pronouncements, referred to above.”

Thereafter, the Court observed:-

“63…….This shows that the Public

Premises Act, has been enacted to deal with

the mischief of rampant unauthorized

occupation of public premises by providing

a speedy machinery for the eviction of

persons in unauthorized occupation…….”

(emphasis supplied)

23. In paragraph 64, this Court then noted that the

Rent Control Act and the Public Premises Act operated in two

different areas, and the properties ‘belonging to’ the Central

Government, Government Companies or Corporations would

27

Page 28 be excluded from the application of the Rent Control Act.

The Court observed to the following effect:-

“64. It would thus appear that, while the

Rent Control Act is intended to deal with the

general relationship of landlords and tenants in

respect of premises other than government

premises, the Public Premises Act is intended

to deal with speedy recovery of possession of

premises of public nature, i.e. property

belonging to the Central Government, or

companies in which the Central Government

has substantial interest or corporations owned

or controlled by the Central Government and certain

corporations, institutions, autonomous bodies and

local authorities. The effect of giving overriding effect

to the provisions of the Public Premises Act over the

Rent Control Act, would be that buildings belonging

to companies, corporations and autonomous bodies

referred to in Section 2(e) of the Public Premises Act

would be excluded from the ambit of the Rent

Control Act in the same manner as properties

belonging to the Central Government.…….”

(emphasis supplied)

Thereafter, the Court observed:-

“…..The reason underlying the exclusion of

property belonging to the Government from the ambit of

the Rent Control Act, is that the Government while

dealing with the citizens in respect of property

belonging to it would not act for its own purpose

as a private landlord but would act in public

interest……”

(emphasis

supplied)

28

Page 29 24. Paragraph 66 of the judgment makes it clear that

this Court was concerned with a contractual tenancy and

ruled out a dual procedure for eviction. In that context it

observed as follows:-

“66……….This would mean that in order

to evict a person who is continuing in

occupation after the expiration or

termination of his contractual tenancy in

accordance with law, two proceedings will

have to be initiated. First, there will be

proceedings under Rent Control Act before

the Rent Controller followed by appeal

before the Rent Control Tribunal and revision

before the High Court. After these

proceedings have ended they would be

followed by proceedings under the Public

Premises Act, before the Estate Officer and

the Appellate Authority. In other words,

persons in occupation of public premises

would receive greater protection than

tenants in premises owned by private

persons. It could not be the intention of

Parliament to confer this dual benefit on

persons in occupation of public premises.”

It is relevant to note that, it is in this context that the Court

rendered its decision in Ashoka Marketing , and upheld the

orders of eviction under Public Premises Act.

25. It was submitted by Mr. Nariman, that as can be

seen from above, the Court was concerned with the second

part of the definition of “unauthorised occupation” under

29

Page 30 Section 2(g) of the Public Premises Act, which is concerning

expiry or determination of the authority to occupy. He

submitted that the ‘determination of tenancy’ is referable to

Section 111 of the Transfer of Property Act, and similarly the

concept of expiry of the authority to occupy. Paragraph 30

quoted above specifically refers to the Transfer of Property

Act. He submitted that the latter part of this definition was

indicating a reference to contractual tenancy, and in this

behalf referred to the above referred paragraph 66 which

also speaks about the contractual tenancy. His submission

was that since the first part of the definition under Section

2(g) referred to a person who is occupying the premises

without any authority, it would exclude a person who is

occupying the premises under the authority of law. In his

submission, since the appellant was a deemed tenant under

the state law, such a statutory tenant will have to be

considered as protected by authority of law and cannot be

called a person in “unauthorised occupation”. He referred to

the judgment of this Court in Chandavarkar Sita Ratna

Rao Vs. Ashalata S. Guram reported in 1986 (3) SCR

30

Page 31 866, which held that the amendment brought about by

section 15A was an attempt to protect very large number of

legitimate persons in occupation. The judgment also made a

distinction in the position of a statutory tenant as against that

of a contractual tenant. In that judgment it is held that a

statutory tenant is entitled to create a licence, whereas a

contractual tenant can create a sub-lease. However, the

proposition canvassed by Mr. Nariman would mean that a

licensee protected by statute will not be in an unauthorised

occupation, but a contractual tenant could be, since, his

authority to occupy can be determined, and he would be in

an unauthorised occupation thereafter. Thus, a protected

licensee would be placed on a pedestal higher than that of a

principal contractual tenant. In our view, this judgment does

not state so, nor can it lead us to accept any such proposition

as it would mean accepting an incongruous situation.

From what date would the Public Premises Act apply

to the concerned premises?

26. The question that is required to be examined,

however, is whether the tenants as well as licencees, who

are protected under the State Law, could be called

31

Page 32 unauthorised occupants by applying the Public Premises Act

to their premises as ‘belonging’ to a Government Company,

and if so from what date. As we have noted earlier, to initiate

the eviction proceedings under this statute, the premises

concerned have to be public premises as defined under

Section 2(e) of the Act. Besides, as far as the present

premises are concerned, it is necessary that they must

belong to a Government Company. The definition of public

premises will, therefore, have to be looked into, and it will

have to be examined as to from what date the premises can

be said to be belonging to a Government Company. Section

19 of the Public Premises Act, 1971 repeals the Public

Premises (Eviction of Unauthorised Occupants) Act, 1958.

While repealing this predecessor Act, Section 1(3) of the

1971 Act lays down that it shall be deemed to have come

into force on the 16th day of September, 1958 except

sections 11, 19 and 20 which shall come into force at once

(i.e. from 23.8.1971). Section 11 deals with offences and

penalties. Section 19 is the repealing Section as stated

above, and Section 20 is the section on validation of any

32

Page 33 judgment, decree or order of any competent court which

might have been passed under Public Premises (Eviction of

Unauthorised Occupants) Act, 1958. The conjoint reading of

Section 1(3) and Section 2(e) defining Public Premises will be

that although the provisions with respect to eviction under

the Act of 1971 are deemed to have come into force from

16.9.1958, they will apply to the concerned premises only

from the date when they become public premises.

27. Thus, in the case of a company under the

Companies Act, 1956 as in the present case, it is necessary

that the premises must belong to or must be taken on lease

by a company which has not less than 51 per cent paid up

share capital held by the Central Government. The

submission of the respondents is that the date on which the

management of the erstwhile Insurance Company was taken

over i.e. 13.5.1971 would be the relevant date, and from that

date the premises would be said to have become public

premises. It was submitted that after coming into force of the

said Act, it was not open to the erstwhile company to transfer

or otherwise dispose of any assets or create any charge,

33

Page 34 hypothecation, lease or any encumbrance thereto without

the previous approval of the persons specified by the Central

Government. It was contended that as a result, the

provisions of Bombay Rent Act will have to be held as not

applicable to the said premises from such date i.e. 13

th

May,

1971.

28. The submission of the respondent was accepted by

the High Court by relying upon an earlier judgment of a

Division Bench of the Bombay High Court in the case of M.

Mohd vs. Union of India reported in AIR 1982 Bombay

443. In para 22 thereof, the High Court held as follows:-

“…..There is no doubt that the

expression “belonging to” does not mean the

same thing as “owned by”. The two expressions

have two different connotations. The expression

“belonging to” will take within its sweep not only

ownership but also rights lesser than that of

ownership.”

It is relevant to note that the appellants therein were

government employees occupying premises allotted to them

as service premises. The premises were situated in privately

owned buildings, and taken on lease by the Government.

The appellants had retired from their services, but were not

34

Page 35 vacating the premises, and hence eviction orders were

passed against them under the Public Premises Act. The

premises were admittedly taken on lease, and were therefore

premises belonging to the Central Government. At the end of

paragraph 21 of its judgment, the High Court in terms held as

follows, “Once the factum of lease is established, which has

been done in the present case, the authorities under the act

get jurisdiction to inquire under the act.” The submission of

the appellants therein was that the premises could not be

said to be belonging to the respondents, and therefore, not

public premises. It is in this context that the High Court held

that the expression ‘belonging to’ will take within its sweep

rights lesser than that of ownership. The observations

quoted above will have to be read in that context. It is

however, relevant to note what the Division Bench has

thereafter added:-

“It must be remembered in this

connection that the expressions used in the

statute are to be interpreted and given meaning

in the context in which they are used.”

It is material to note that it was not a case like the present

one, where the occupant has claimed protection under the

35

Page 36 State Rent Control Law available to him prior to the Public

Premises Act becoming applicable. The High Court had relied

upon a judgment of this Court in Mahomed Amir Ahmad

Khan vs. Municipal Board of Sitapur reported in AIR

1965 SC 1923, wherein this Court has observed:-

“Though the word “belonging” no doubt

is capable of denoting as absolute title, is

nevertheless not confined to connoting that

sense.”

This was a matter wherein the appellant was alleged to have

disputed the title of the respondent landlord by contending

that the premises were belonging to the appellant. The Court

noted that all that he meant by using the word ‘belonging’

was that he was a lessee, and nothing more. It was in this

sense that this Court observed as above while allowing his

appeal.

29. In the present matter we are concerned with the

question, whether the respondents could resort to the

provisions of the Public Premises Act at a time when the

merger of the erstwhile insurance company into the first

respondent was not complete. The question is whether

taking over of the management of the erstwhile company can

36

Page 37 confer upon the respondent No. 1 the authority to claim that

the premises belong to it to initiate eviction proceedings

under the Public Premises Act, to the detriment of an

occupant who is claiming protection under a welfare

enactment passed by the State Legislature. At this juncture

we may profitably refer to the judgment of this Court

concerning another welfare enactment in Rashtriya Mill

Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and

Anr. reported in AIR 1984 SC 1813. The issue before the

Court was whether upon the appointment of an authorised

controller under Section 18A of the Industries (Development

and Regulation) Act, 1951 (IDR Act short) in respect of an

industrial undertaking, when it is run by him under the

authority of a Department of the Central Government, the

employees of the undertaking would get excluded from the

application of the Payment of Bonus Act, 1965, in view of the

provision contained in Section 32(iv) of the Bonus Act. The

court made a distinction between the concept of taking over

of management and taking over of ownership. Inasmuch as

the taking over of the management did not result into the

37

Page 38 Central Government becoming the owner of the textile mills,

the right of the workmen to receive bonus was not

extinguished. The Court held as follows:

“10. Thus the significant consequence that ensues on

the issue of a notified order appointing authorised

controller is to divert the management from the

present managers and to vest it in the authorised

controller. Undoubtedly, the heading of Chapter III-A

appears to be slightly misleading when it says that the

Central Government on the issue of a notified order

assumes direct management of the industrial

undertaking, in effect on the issuance of a notified

order, only the management of the industrial

undertaking undergoes a change. This change of

management does not tantamount to either

acquisition of the industrial undertaking or a

take over of its ownership because if that was to be

the intended effect of change of management, the Act

would have been subjected to challenge of Article 31

and 19 (1) (f) of the Constitution. One can say

confidently that was not intended to be the

effect of appointment of an authorised

controller. The industrial undertaking continues

to be governed by the Companies Act or the

Partnership Act or the relevant provisions of law

applicable to a proprietary concern. The only

change is the removal of managers and appointment of

another manager and to safeguard his position

restriction on the rights of shareholders or partners or

original proprietor. This is the net effect of the

appointment of an authorised controller by a notified

order.”

(emphasis

supplied)

A similar approach was adopted by the Court in Bhuri Nath

and Ors. Vs. State of J&K and Ors. reported in AIR 1997

38

Page 39 SC 1711. Here the issue before the Court was with respect

to the constitutionality of the Jammu and Kashmir Shri Mata

Vaishno Devi Shrine Act, 1988 (XVI of 1988) which was made

to provide better management, administration and

governance of Shri Mata Vaishno Devi Shrine, its

endowments, all temples, and sum total of the properties,

movable and immovable, attached or appurtenant to the

Shrine. While addressing an argument with respect to the

violation of Article 31 of the Constitution, the Court observed

in para 29 as follows:

“29. ……….The right to superintendence

of management, administration and

governance of the Shrine is not the property

which the State acquires. It carries with it no

beneficial enjoyment of the property to the

State. The Act merely regulates the

management, administration and governance

of the Shrine. It is not an extinguishment of

the right. The appellants-Baridarans were

rendering pooja, a customary right which was

abolished and vested in the Board. The

management, administration and governance of

the Shrine always remained with the Dharamarth

Trust from whom the Board has taken over the

same for proper administration, management and

governance. In other words, the effect of the

enactment of the Act is that the affairs of the

functioning of the Shrine merely have got

transferred from Dharmarth Trust to the Board.

39

Page 40 The Act merely regulates in that behalf;

incidentally, the right to collect offerings enjoyed

by the Baridarans by rendering service of pooja

has been put to an end under the Act. The State,

resultantly, has not acquired that right onto itself.

……..”

(emphasis

supplied)

30. As far as the present matter is concerned it is

required to be noted that the Principal Agencies floated by

the promoters of the erstwhile private Insurance Companies

were controlling their business. In the ‘History of Insurance

of India’ published by Insurance Regulatory and Development

Authority’ (IRDA) on its official website on 12.07.2007 under

Ref: IRDA/GEN/06/2007 it is stated as follows:

“The Insurance Amendment Act of 1950 abolished

Principal Agencies. However, there were a large number or

insurance companies and the level of competition was high.

There were also allegations of unfair trade practices. The

Government of India, therefore, decided to nationalize

insurance business.”

Thus, as far as the erstwhile Insurance Company in the

present case is concerned, as an initial step, its management

was taken over by the Central Government w.e.f. 13.5.1971,

and it was entrusted with the custodian appointed by the

Central Government. It would definitely entail a right in the

40

Page 41 custodian to take necessary steps to safeguard the property

of the erstwhile insurance company. But it was a transitory

arrangement. The properties of the erstwhile insurance

companies did not belong to the Government Companies or

the Government at that stage. The Public Premises Act,

undoubtedly provides a speedy remedy to recover the

premises from the unauthorised occupants. At the same

time, we have also to note that in the instant case the

occupant is claiming a substantive right under a welfare

provision of the State Rent Control Act, which gave him a

protected status in view of the amendment to that Act. The

question is whether this authority of management bestowed

on the Government Company can take in its sweep the right

to proceed against such protected tenants under the Public

Premises Act, by contending that the premises belonged to

the Government Company at that stage itself, and that the

State Rent Control Act no longer protected them. Considering

that the Rent Control Act is a welfare enactment, and a

further protective provision has been made therein, can it be

permitted to be rendered otiose and made inapplicable to

41

Page 42 premises specifically sought to be covered thereunder, and

defeated by resorting to the provisions of the Public Premises

Act? In the present case, it must also be noted that the

appellant is seeking a protection under Section 15A of the

Bombay Rent Act, which has a non-obstante clause. The

respondent No. 1 is undoubtedly not without a remedy, and it

can proceed to evict an unauthorised occupant under the

Rent Control Act, if an occasion arises. It can certainly resort

thereto until the managerial right fructifies into a right of

ownership. However by enforcing a speedier remedy, a

welfare provision cannot be rendered nugatory. The

provisions of the two enactments will have to be read

harmoniously to permit the operation and co-existence of

both of them to the extent it can be done. Therefore, the

term ‘belonging to’ as occurring in the definition of Public

Premises in Section 2(e) will have to be interpreted

meaningfully to imply only the premises owned by or taken

on lease by the Government Company at the relevant time.

In the facts of this case what we find is that the appellant had

the status of a deemed tenant under the Bombay Rent Act,

42

Page 43 1947 prior to the concerned premises ‘belonging to a

Government Company’ and becoming public premises. If at

all he had to be evicted, it was necessary to follow the due

process of law which would mean the process as available

under the Bombay Rent Act or its successor Maharashtra

Rent Control Act, 1999, and not the one which is provided

under the provisions of the Public Premises Act.

Can the Public Premises Act be given retrospective

effect?

31. There is another aspect of the matter. Mr. Raval,

learned senior counsel for the respondents has contended

that the appellant’s submission that he was protected under

the Bombay Rent Act, and that protection has been

continued under the Maharashtra Rent Control Act, 1999, is

not available before the Estate Officer. The question,

therefore, comes to our mind as to what happens to the

rights of the appellant made available to him under the State

Act at a time when the erstwhile company had not merged in

the first respondent Government Company? Can it be said

43

Page 44 that he was occupying the premises without the authority for

such occupation? Can it be said that with the application of

the Public Premises Act to the premises occupied by the

appellant, those rights get extinguished? It has been laid

down by this Court time and again that if there are rights

created in favour of any person, whether they are property

rights or rights arising from a transaction in the nature of a

contract, and particularly if they are protected under a

statute, and if they are to be taken away by any legislation,

that legislation will have to say so specifically by giving it a

retrospective effect. This is because prima facie every

legislation is prospective (see para 7 of the Constitution

Bench judgment in Janardan Reddy Vs. The State

reported in AIR 1951 SC 124 ). In the instant case, the

appellant was undoubtedly protected as a ‘deemed tenant’

under Section 15A of the Bombay Rent Act, prior to the

merger of the erstwhile insurance company with a

Government Company, and he could be removed only by

following the procedure available under the Bombay Rent

Act. A ‘deemed tenant’ under the Bombay Rent Act,

44

Page 45 continued to be protected under the succeeding Act, in view

of the definition of a ‘tenant’ under Section 7(15)(a)(ii) of the

Maharashtra Rent Control Act, 1999. Thus, as far as the

tenants of the premises which are not covered under the

Public Premises Act are concerned, those tenants who were

deemed tenants under the Bombay Rent Act continued to

have their protection under the Maharashtra Rent Control

Act, 1999. Should the coverage of their premises under the

Public Premises Act make a difference to the tenants or

occupants of such premises, and if so, from which date?

32. It has been laid down by this Court through a

number of judgments rendered over the years, that a

legislation is not be given a retrospective effect unless

specifically provided for, and not beyond the period that is

provided therein. Thus, a Constitution Bench held in

Garkiapati Veeraya Vs. N. Subbiah Choudhry reported in

AIR 1957 SC 540 that in the absence of anything in the

enactment to show that it is to be retrospective, it cannot be

so constructed, as to have the effect of altering the law

applicable to a claim in litigation at the time when the act

45

Page 46 was passed. In that matter, the Court was concerned with

the issue as to whether the appellant’s right to file an appeal

continued to be available to him for filing an appeal to the

Andhra Pradesh High Court after it was created from the

erstwhile Madras High Court. The Constitution Bench held

that the right very much survived, and the vested right of

appeal can be taken away only by a subsequent enactment,

if it so provides expressly or by necessary intendment and

not otherwise.

33. Similarly, in Mahadeolal Kanodia Vs. The

Administrator General of West Bengal reported in AIR

1960 SC 936 , this Court was concerned with the

retrospectivity of law passed by the West Bengal legislature

concerning the rights of tenants and in paragraph 8 of the

judgment the Court held that:-

“8.The principles that have to be

applied for interpretation of statutory provisions of

this nature are well-established. The first of these is

that statutory provisions creating substantive rights

or taking away substantive rights are ordinarily

prospective; they are retrospective only if by

express words or by necessary implication……”

46

Page 47 34. In Amireddi Raja Gopala Rao Vs. Amireddi

Sitharamamma reported in AIR 1965 SC 1970 , a

Constitution bench was concerned with the issue as to

whether the rights of maintenance of illegitimate sons of a

sudra as available under the Mitakshara School of Hindu Law

was affected by introduction of Sections 4, 21 and 22 of the

Hindu Adoption and Maintenance Act, 1956. The Court held

that they were not, and observed in paragraph 7 as follows:-

“A statue has to be interpreted, if possible so as

to respect vested rights, and if the words are open

to another construction, such a construction should

never be adopted.”

The same has been the view taken by a bench of three

Judges of this Court in J.P. Jani, Income Tax Officer, Circle

IV, Ward G, Ahmedabad Vs. Induprasad Devshanker

Bhatt reported in AIR 1969 SC 778 in the context of a

provision of the Income Tax Act, 1961, in the matter of

reopening of assessment orders. In that matter the Court

was concerned with the issue as to whether the Income Tax

Officer could re-open the assessment under Section 297(2)

(d) (ii) and 148 of the Income Tax Act, 1961, although the

right to re-open was barred by that time under the earlier

47

Page 48 Income Tax Act, 1922. This Court held that the same was

impermissible and observed in paragraph 5 as follows:-

“5…… The reason is that such a construction

of Section 297 (2) (d) (ii) would be tantamount to

giving of retrospective operation to that section

which is not warranted either by the express

language of the section or by necessary implication.

The principle is based on the well-known rule of

interpretation that unless the terms of the statute

expressly so provide or unless there is a necessary

implication, retrospective operation should not be

given to the statute so as to affect, alter or destroy

any right already acquired or to revive any remedy

already lost by efflux of time.”

35. In Arjan Singh Vs. State of Punjab reported in

AIR 1970 SC 703, this court was concerned with the issue of

date of application of Section 32KK added into the Pepsu

Tenancy and Agricultural Lands Act, 1955. This Court held in

paragraph 4 thereof as follows:-

“4. It is a well-settled rule of construction

that no provision in a statute should be given

retrospective effect unless the legislature by

express terms or by necessary implication has

made it retrospective and that where a provision is

made retrospective, care should be taken not to

extend its retrospective effect beyond what was

intended.”

36. In Ex-Capt., K.C. Arora Vs. State of Haryana

reported in 1984 (3) SCC 281 , this Court was concerned

48

Page 49 with a service matter and with the issue as to whether an

amendment in the law could take away the vested rights with

retrospective effect. The Court held that such an amendment

would be invalid if it is violative of the present acquired or

accrued fundamental rights of the affected persons.

37. In the case of K.S. Paripoornan Vs. State of

Kerala reported in AIR 1995 SC 1012 , a Constitution Bench

of this Court was concerned with the retrospective effect of

Section 23(1A) introduced in the Land Acquisition Act. While

dealing with this provision, this Court has observed as

follows:-

“44.A statute dealing with substantive

rights differs from a statute which relates to

procedure or evidence or is declaratory in nature

inasmuch as while a statute dealing with

substantive rights is prima facie prospective unless

it is expressly or by necessary implication made to

have retrospective effect, a statute concerned

mainly with matters of procedure or evidence or

which is declaratory in nature has to be construed

as retrospective unless there is a clear indication

that such was not the intention of the legislature. A

statute is regarded retrospective if it operates on

cases or facts coming into existence before its

commencement in the sense that it affects, even if

for the future only, the character or consequences

of transactions previously entered into or of other

past conduct. By virtue of the presumption against

retrospective applicability of laws dealing with

49

Page 50 substantive rights transactions are neither

invalidated by reason of their failure to comply with

formal requirements subsequently imposed, nor

open to attack under powers of avoidance

subsequently conferred. They are also not

rendered valid by subsequent relaxations of the

law, whether relating to form or to substance.

Similarly, provisions in which a contrary intention

does not appear neither impose new liabilities in

respect of events taking place before their

commencement, nor relieve persons from liabilities

then existing, and the view that existing obligations

were not intended to be affected has been taken in

varying degrees even of provisions expressly

prohibiting proceedings. (See: Halsbury's Laws of

England, 4th Edn. Vol. 44, paras 921, 922, 925 and

926).”

38. In the case of Gajraj Singh Vs. State Transport

Appellate Tribunal reported in AIR 1997 SC 412 , the

Court was concerned with the provisions of Motor Vehicle Act

and repealing of some of its provisions. In para 30 referring

to Southerland on Statutory Construction (3

rd

Edition) Vol.I,

the Court quoted the following observations:-

“30……Effect on vested rights

Under common law principles of construction and

interpretation the repeal of a statute or the

abrogation of a common law principle operates to

divest all the rights accruing under the repealed

statute or the abrogated common law, and to halt

all proceedings not concluded prior to the repeal.

However, a right which has become vested is not

dependent upon the common law or the statute

under which it was acquired for its assertion, but

50

Page 51 has an independent existence. Consequently, the

repeal of the statute or the abrogation of the

common law from which it originated does not

efface a vested right, but it remains enforceable

without regard to the repeal.

In order to become vested, the right must be a

contract right, a property right, or a right arising

from a transaction in the nature of a contract which

has become perfected to the degree that the

continued existence of the statute cannot further

enhance its acquisition.……”

39. Having noted the aforesaid observations, it is very

clear that in the facts of the present case, the appellant’s

status as a deemed tenant was accepted under the state

enactment, and therefore he could not be said to be in

“unauthorised occupation”. His right granted by the state

enactment cannot be destroyed by giving any retrospective

application to the provisions of Public Premises Act, since

there is no such express provision in the statute, nor is it

warranted by any implication. In fact his premises would not

come within the ambit of the Public Premises Act, until they

belonged to the respondent No. 1, i.e until 1.1.1974. The

corollary is that if the respondent No. 1 wanted to evict the

appellant, the remedy was to resort to the procedure

available under the Bombay Rent Act or its successor

51

Page 52 Maharashtra Rent Control Act, by approaching the forum

thereunder, and not by resorting to the provisions of the

Public Premises Act.

When are the provisions of Public Premises Act to be

resorted to?

40. In the context of the present controversy, we must

refer to one more aspect. As we have noted earlier in

paragraph 63 of Ashoka Marketing , the Constitution Bench

has referred to the objects and reasons behind the Public

Premises Act wherein it is stated that it has become

impossible for the Government to take expeditious action

even in ‘flagrant cases of unauthorised occupation’ of public

premises. The Court has thereafter observed in that very

paragraph that the Public Premises Act is enacted to deal

with mischief of ‘rampant unauthorised occupation’ of public

premises.

41. It is relevant to note that there has been a criticism

of the use of the powers under the Public Premises Act, and

the manner in which they are used in an arbitrary way to

evict the genuine tenants from the public premises causing

serious hardships to them. The Central Government itself has

52

Page 53 therefore, issued the guidelines to prevent such arbitrary use

of these powers. These guidelines were issued vide

Resolution No. 21012/1/2000-Pol.1, dated 30

th

May, 2002,

published in the Gazette of India, Part I, Sec.1 dated 8

th

June,

2002. They read as follows:-

”GUIDELINES TO PREVENT ARBITRARY USE OF

POWERS TO EVICT GENUINE TENANTS FROM

PUBLIC PREMISES UNDER THE CONTROL OF

PUBLIC SECTOR UNDERTAKINGS / FINANCIAL

INSTITUTIONS

1. The question of notification of guidelines to

prevent arbitrary use of powers to evict genuine

tenants from public premises under the control of

Public Sector Undertakings/financial institutions has

been under consideration of the Government for

some time past.

2. To prevent arbitrary use of powers to evict

genuine tenants from public premises and to limit

the use of powers by the Estate Officers appointed

under section 3 of the PP(E) Act, 1971, it has been

decided by Government to lay down the following

guidelines:

(i) The provisions of the Public Premises (Eviction

of Unauthorised Occupants) Act, 1971 [(P.P.(E) Act,

1971] should be used primarily to evict totally

unauthorised occupants of the premises of public

authorities or subletees, or employees who have

ceased to be in their service and thus ineligible for

occupation of the premises.

(ii)The provisions of the P.P. (E) Act, 1971 should

not be resorted to either with a commercial motive

or to secure vacant possession of the premises in

order to accommodate their own employees, where

the premises were in occupation of the original

53

Page 54 tenants to whom the premises were let either by the

public authorities or the persons from whom the

premises were acquired.

(iii) A person in occupation of any premises should

not be treated or declared to be an unauthorised

occupant merely on service of notice of termination

of tenancy, but the fact of unauthorized occupation

shall be decided by following the due procedure of

law. Further, the contractual agreement shall not be

wound up by taking advantage of the provisions of

the P.P.(E) Act, 1971. At the same time, it will be

open to the public authority to secure periodic

revision of rent in terms of the provisions of the

Rent Control Act in each State or to move under

genuine grounds under the Rent Control Act for

resuming possession. In other words, the public

authorities would have rights similar to private

landlords under the Rent Control Act in dealing with

genuine legal tenants.

(iv) It is necessary to give no room for allegations

that evictions were selectively resorted to for the

purpose of securing an unwarranted increase in

rent, or that a change in tenancy was permitted in

order to benefit particular individuals or institutions.

In order to avoid such imputations or abuse of

discretionary powers, the release of premises or

change of tenancy should be decided at the level of

Board of Directors of Public Sector Undertakings.

(v) All the public Undertakings should immediately

review all pending cases before the Estate Officer or

Courts with reference to these guidelines, and

withdraw eviction proceedings against genuine

tenants on grounds otherwise than as provided

under these guidelines. The provisions under the

P.P. (E) Act, 1971 should be used henceforth only in

accordance with these guidelines.

3. These orders take immediate effect.”

54

Page 55 42. Thus as can be seen from these guidelines, it is

emphasized in Clause 2(i) thereof, that the Act was meant to

evict (a) totally unauthorised occupants of the public

premises or subletees, or (b) employees who have ceased to

be in their service, and were ineligible to occupy the

premises. In Clause 2(ii), it is emphasized that the provisions

should not be resorted to (a) either with a commercial

motive, or (b) to secure vacant possession of the premises in

order to accommodate their own employees, where the

premises were in occupation of the original tenants to whom

the premises were let out (i) either by the public authorities,

or (ii) by persons from whom the premises were acquired,

indicating thereby the predecessors of the public authorities.

Clause 2 (iii) of these guidelines is very important. It states

on the one hand that it will be open for the public authority to

secure periodic revision of rent in terms of the provision of

the Rent Control Act in each state, and to move under

genuine grounds under the Rent control Act for resuming

possession. This Clause on the other hand states that the

public authorities would have rights similar to private

55

Page 56 landlords under the Rent Control Act in dealing with genuine

legal tenants. This clause in a way indicates that for

resuming possession in certain situations, where the tenants

are protected under the State Rent Control Act prior to the

Public Premises Act becoming applicable, the public

authorities will have to move under the Rent Control Acts on

the grounds which are available to the private landlords.

Clause 2(iv) seeks to prevent imputations or abuse of

discretionary powers in this behalf by stating that there

should be no room for allegation that evictions were

selectively resorted for the purpose of securing an

unwarranted increase in rent or change in tenancy to benefit

particular individuals or institutions. It, therefore, states that

the release of premises or change of tenancy should be

decided at the level of Board of Directors of Public Sector

Undertakings. Clause 2(v) goes further ahead and instructs

all public undertakings that they should review all pending

cases before the Estate Officer or Courts with reference to

these guidelines, and withdraw the proceedings against

56

Page 57 genuine tenants on grounds otherwise than as provided

under the guidelines.

43. The instructions contained in this Resolution are

undoubtedly guidelines, and are advisory in character and do

not confer any rights on the tenants as held in para 23 of

New Insurance Assurance Company Vs. Nusli Neville

Wadia reported in 2008 (3) SCC 279 . At the same time,

the intention behind the guidelines cannot be ignored by the

Public Undertakings which are expected to follow the same.

When it comes to the interpretation of the provisions of the

statute, the guidelines have been referred herein for the

limited purpose of indicating the intention in making the

statutory provision, since the guidelines are issued to

effectuate the statutory provision. The guidelines do throw

some light on the intention behind the statute. The guidelines

are issued with good intention to stop arbitrary use of the

powers under the Public Premises Act. The powers are given

to act for specified reasons, and are expected to be used only

in justified circumstances and not otherwise.

The overall consequence

57

Page 58 44. In Ashoka Marketing (supra) , 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

58

Page 59 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 person concerned has come in occupation

subsequent to such date, then of course the Public Premises

Act, 1971 will apply.

45. It is true that Section 15 of the Public Premises Act

creates a bar of jurisdiction to entertain suits or proceedings

in respect of eviction of any person in an unauthorised

occupation. However, as far as the relationship between the

respondent No. 1, the other General Insurance Companies,

LIC, Nationalised Banks and such other Government

Companies or Corporations, on the one hand and their

59

Page 60 occupants/licencees/tenants on the other hand is concerned,

such persons who are in occupation prior to the premises

belonging to or taken on lease by such entities, will continue

to be governed by the State Rent Control Act for all purposes.

The Public Premises Act will apply only to those who come in

such occupation after such date. Thus, there is no occasion

to have a dual procedure which is ruled out in paragraph 66

of Ashoka Marketing. We must remember that the

occupants of these properties were earlier tenants of the

erstwhile Insurance Companies which were the private

landlords. They have not chosen to be the tenants of the

Government Companies. Their status as occupants of the

Public Insurance Companies has been thrust upon them by

the Public Premises Act.

46. This Court has noted in Banatwala and Co. Vs.

LIC reported in 2011 (13) SCC 446 that the Public Premises

Act, 1971 is concerned with eviction of unauthorised

occupants and recovery of arrears of rent or damages for

such unauthorised occupation, and incidental matters

specified under the act. As far as the Maharashtra Rent

60

Page 61 Control Act is concerned, this Court noted in paragraph 25 of

that judgment that as per the preamble of the said Act, it is

an Act relating to five subjects, namely (i) control of rent, (ii)

repairs of certain premises, (iii) eviction, (iv) encouraging the

construction of new houses by assuring fair return of

investment by the landlord, and (v) matters connected with

the purposes mentioned above. In that matter, the Court was

concerned with the issue of fixation of standard rent and

restoration and maintenance of essential supplies and

services by the landlord. It was held that these two subjects

were not covered under the Public Premises Act, and infact

were covered under the Maharashtra Rent Control Act.

Operative para 99(c) of the judgment therefore specifically

held as follows:-

“99 (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.”

47. A judgment of a bench of three Judges of this

Court in M/s Jain Ink Manufacturing Company v. L.I.C

61

Page 62 reported in (1980) 4 SCC 435 was relied upon by Mr. Raval.

In this matter also a plea was raised on behalf of the

appellant tenant for being covered under the Delhi Rent

Control Act, 1958 which came to be repelled. Mr. Raval

stressed upon the observations in Para 5 of the judgment to

the effect that Section 2(g) merely requires occupation of any

public premises to initiate the action. Mr. Nariman on the

other hand pointed out that in the earlier part of the very

paragraph the Court had observed, although after referring to

the provision of Punjab Public Premises and Land (Eviction

and Rent Recovery), Act 1959 that if the entry into

possession had taken place prior to the passing of the act,

then obviously the occupant would not be an unauthorized

occupant. That apart, Mr. Nariman submitted that the

judgment was essentially on the second part of Section 2(g)

defining ‘unauthorised occupation’. It is, however, material to

note that in that case the premises were owned by LIC from

19.7.1958, i.e. prior to the Delhi Rent Control Act becoming

applicable from 9.2.1959. Besides, the issue of protection

under a welfare legislation being available to the tenant prior

62

Page 63 to the premises becoming public premises, and the issue of

retrospectivity was not under consideration before the Court.

The observations of the Court in that matter will have to be

understood in that context.

48. As far as the eviction of unauthorised occupants

from public premises is concerned, undoubtedly it is covered

under the Public Premises Act, but it is so covered from

16.9.1958, or from the later date when the concerned

premises become public premises by virtue of the concerned

premises vesting into a Government company or a

corporation like LIC or the Nationalised Banks or the General

Insurance Companies like the respondent no.1. Thus there

are two categories of occupants of these public corporations

who get excluded from the coverage of the Act itself. Firstly,

those who are in occupation since prior to 16.9.1958, i.e.

prior to the Act becoming applicable, are clearly outside the

coverage of the Act. Secondly, those who come in

occupation, thereafter, but prior to the date of the concerned

premises belonging to a Government Corporation or a

Company, and are covered under a protective provision of

63

Page 64 the State Rent Act, like the appellant herein, also get

excluded. Until such date, the Bombay Rent Act and its

successor Maharashtra Rent Control Act will continue to

govern the relationship between the occupants of such

premises on the one hand, and such government companies

and corporations on the other. Hence, with respect to such

occupants it will not be open to such companies or

corporations to issue notices, and to proceed against such

occupants under the Public Premises Act, and such

proceedings will be void and illegal. Similarly, it will be open

for such occupants of these premises to seek declaration of

their status, and other rights such as transmission of the

tenancy to the legal heirs etc. under the Bombay Rent Act or

its successor Maharashtra Rent Control Act, and also to seek

protective reliefs in the nature of injunctions against

unjustified actions or orders of eviction if so passed, by

approaching the forum provided under the State Act which

alone will have the jurisdiction to entertain such proceedings.

49. Learned senior counsel for the respondents Mr.

Raval submitted that the judgment of the Constitution Bench

64

Page 65 in Ashoka Marketing had clarified the legal position with

respect to the relationship between the Public Premises Act

and the Rent Control Act. However, as noted above, the

issue concerning retrospective application of the Public

Premises Act was not placed for the consideration of the

Court, and naturally it has not been gone into it. It was

submitted by Mr. Raval that for maintenance of judicial

discipline this bench ought to refer the issue involved in the

present matter to a bench of three Judges, and thereafter

that bench should refer it to a bench of five Judges. He relied

upon the judgment of this Court in the case of Pradip

Chandra Parija Vs. Pramod Chandra reported in 2002 (1)

SCC 1 in this behalf. He also referred to a judgment of this

Court in Sundarjas Kanyalal Bhatija Vs. Collector,

Thane, Maharashtra and Ors. reported in 1989 (3) SCC

396 and particularly paragraph 18 thereof for that purpose.

What is however, material to note is that this paragraph also

permits discretion to be exercised when there is no declared

position in law. The Bombay Rent Act exempted from its

application only the premises belonging to the government or

65

Page 66 a local authority. The premises belonging to the Government

Companies or Statutory Corporations were however covered

under the Bombay Rent Act. This position was altered from

16.9.1958 when the Public Premises (Eviction of

Unauthorised Occupation) Act, 1958 came in force which

applied thereafter to the Government Companies and

Statutory Corporations, and that position has been reiterated

under the Public Premises Act of 1971 which replaced the

1958 Act. Under these Acts of 1958 and 1971, the Premises

belonging to the Government Companies or Statutory

Corporations are declared to be Public Premises. Thus, the

Parliament took away these premises from the coverage of

the Bombay Rent Act under Article 254(1) of the Constitution

of India. This was, however, in the matter of the subjects

covered under the Public Premises Act, viz. eviction of

unauthorised occupants and recovery of arrears of rent etc.

as stated above. Thereafter, if the State Legislature wanted

to cover these subjects viz. a viz. the premises of the

Government Companies and Public Corporations under the

Maharashtra Rent Control Act, 1999, it had to specifically

66

Page 67 state that notwithstanding anything in the Public Premises

Act of 1971, the Government Companies and Public

Corporations would be covered under the Maharashtra Rent

Control Act, 1999. If that was so done, and if the President

was to give assent to such a legislation, then the Government

Companies and Public Corporation would have continued to

be covered under the Maharashtra Rent Control Act, 1999 in

view of the provision of Article 254(2). That has not

happened. Thus, the Government Companies and Public

Corporations are taken out of the coverage of the Bombay

Rent Act, and they are covered under Public Premises Act,

1971, though from the date specified therein i.e. 16.9.1958.

After that date, the Government Companies and Public

Corporations will be entitled to claim the application of the

Public Premises Act, 1971 (and not of the Bombay Rent Act or

its successor Maharashtra Rent Control Act, 1999), but from

the date on which premises belong to these companies or

corporations and with respect to the subjects specified under

the Public Premises Act. In that also the public companies

67

Page 68 and corporations are expected to follow the earlier

mentioned guidelines.

50. We have not for a moment taken any position

different from the propositions in Ashoka Marketing . We

are infact in agreement therewith, and we are not accepting

the submission of Mr. Nariman, that only contractual

tenancies were sought to be covered under that judgment,

and not statutory tenancies. Tenancies of both kinds will be

covered by that judgment, and they will be covered under

the Public Premises Act for the subjects specified therein.

The only issue is with effect from which date. That aspect

was not canvassed at all before the Constitution Bench, and

that is the only aspect which is being clarified by this

judgment. We are only clarifying that the application of the

Public Premises Act will be only from 16.9.1958, or from such

later date when concerned premises become Public Premises

on the concerned landlord becoming a Government Company

or Public Corporation. When the law laid down by the

different Benches of this Court including by the Constitution

Benches on retrospectivity is so clear, and so are the

68

Page 69 provisions of the Public Premises Act, there is no occasion for

this Court to take any other view. When this judgment is only

clarifying and advancing the proposition laid down in Ashoka

Marketing, there is no reason for us to accept the objections

raised by Mr. Raval, that the issues raised in this matter

should not be decided by this bench but ought to be referred

to a larger bench.

51. In this context we may note that since the issue of

retrospective application of the Public Premises Act, to

tenancies entered into before 16.9.1958, or before the

property in question becoming a public premises, was neither

canvassed nor considered by the bench in Ashoka

Marketing (supra), the decision does not, in any way,

prevent this Bench from clarifying the law regarding the

same. This follows from the judgment of the Supreme Court

in State of Haryana Vs. Ranbir @ Rana reported in

(2006) 5 SCC 167 wherein it was held that a decision, it is

well-settled, is an authority for what it decides and not what

can logically be deduced therefrom. The following

observations of this court from paragraph 39 of

69

Page 70 Commissioner of Income Tax Vs. M/s. Sun Engineering

Works (P.) Ltd. reported in AIR1993 SC 43 are also

pertinent:

“The judgment must be read as a whole and

the observations from the judgment have to

be considered in the light of the questions

which were before this Court. A decision of this

Court takes its colour from the questions involved

in the case in which it is rendered and while

applying the decision to a later case, the courts

must carefully try to ascertain the true principle

laid down by the decision of this Court and not to

pick out words or sentences from the judgment,

divorced from the context of the questions under

consideration by this Court, to support their

reasonings.

(emphasis

supplied)

It is clear from a reading of the very first paragraph of

Ashoka Marketing that the question before it was

‘whether the provisions of the Public Premises Act

would override the provisions of the Rent Control Act

in relation to premises which fall within the ambit of

both the enactments.’ The Court answered this in the

affirmative, and we respectfully agree with the same.

However, Ashoka Marketing (supra) can not be said to be

an authority on the retrospective application of the Public

70

Page 71 Premises Act, or where the premises fall within the ambit of

only one act, as that issue was not before the Court.

52. For the reasons stated above, we allow this appeal

and set-aside the impugned judgment and order dated

7.6.2010 rendered by the High Court of Bombay in Writ

Petition No. 2473 of 1996. The said Writ Petition shall stand

allowed, and the judgment and order dated 17.1.1996 passed

by the City Civil Court, Mumbai, as well as the eviction order

dated 28.5.1993 passed by the respondent No. 2 against the

appellant will stand set aside. The proceedings for eviction

from premises, and for recovery of rent and damages

initiated by the first respondent against the appellant under

the Public Premises Act, 1971, are held to be bad in law, and

shall therefore stand dismissed. We however, make it clear,

that in case the respondents intend to take any steps for that

purpose, it will be open to them to resort to the remedy

available under the Maharashtra Rent Control Act, 1999,

provided they make out a case therefor. The parties will bear

their own costs.

71

Page 72

…………………………………..J.

[ H.L. Gokhale ]

……………………………………

J.

[ J. Chelameswar ]

New Delhi

Dated: February 11, 2014

72

Page 73