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PETITIONER:

SHANGRILA FOOD PRODUCTS LTD. & ANR.

Vs.

RESPONDENT:

LIFE INSURANCE CORPORATION OF INDIAAND ANOTHER

DATE OF JUDGMENT: 09/07/1996

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

MANOHAR SUJATA V. (J)

CITATION:

1996 SCC (5) 54 JT 1996 (6) 522

1996 SCALE (5)289

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Punchhi, J.

Leave granted.

This appeal is virtually against the judgment and order

of a learned Single Judge of the Bombay High Court dated 9-

11-1993 passed in Writ Petition No.2949 of 1993 against

which Letters Patent Appeal No.1 of 1994 was dismissed

summarily by a Division Bench of that Court on 14-1-1994.

The learned Single Judge was spared the ordeal of

recounting the checkered history of the litigation between

the parties because of the reasonable stand taken by both

the sides. We assume that we too have been spared likewise

and the parties continue to be reasonable. It so happens

that there is a building known as Great Social Building

situate at 60, Sir P.M. Road, Fort, Bombay, which once

belonged to the Great Social Life Insurance Co. Ltd. It

appears that M/s. Interseas Corporation had taken on rent

the fourth floor of the said building sometime in the year

1944. A portion carved out therefrom by a wooden partition

was apparently sublet by M/s. Interseas Corporation to the

appellant M/s. Shangrila Food Products Ltd. in July 1951. It

also appears that M/s. S.M. Enterprises also became sub-

lessees of M/s. Interseas Corporation of another portion of

the property.

On the setting up of the Life Insurance Corporation of

India under the Life Insurance Corporation of India Act,

1956 all the assets and liabilities of the said Great Social

Life Insurance Company were taken over by the Life Insurance

Corporation of India. It is appellants' case that in

consequence thereof, M/s. Interseas Corporation became the

tenant of the Life Insurance Corporation and the appellant

company became the sub-tenant by operation of law in

relation to the premises in question. Further it is the case

of the appellant company that it has become a deemed tenant

under the respondent Life Insurance Corporation because of

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the Bombay Rents Hotel and Lodging Houses Rates Control

(Amendment) Ordinance of 1959.

Legal proceedings were initiated by the Life Insurance

Corporation of India, the respondent herein, against the

appellant Company and one of its shareholders-cum-Directors,

for possession of the premises in question under the

provisions of The Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (for short "the Act"). The Estate

Officer after conducting the requisite inquiry as

contemplated under the Act passed an order of eviction of

the original tenants as also the appellant-Company holding

it as unauthorised occupant being unlawful sub-tenant of the

original tenant. The Estate Officer also passed an order for

damages to the tune of about Rs.12 lakhs.

Being aggrieved against the said order of eviction as

well as damages, appeals were preferred by the appellant

Company as well as the original tenant before the Principal

Bench, City Civil Court, Bombay. The appellate Court upheld

the order of eviction but reversed the order relating to

damages, coming to the conclusion that there was no evidence

in support of the order. The said order of eviction was thus

challenged by the appellant Company before the High Court of

Bombay. But the respondent-Life Insurance Corporation of

India, did not choose to file any Writ Petition challenging

those orders whereby its claim for damages had been

negatived by the appellate Court.

The learned Single Judge of the High Court examined the

files relating to the case and entertained the belief that

the Estate Officer had not dealt with the matter

satisfactorily inasmuch as material from the earlier

litigation, which had been fought prior to the instant

proceedings, had per se been inducted into the files and

there was hardly any effective or clear discussion on the

issue whether the appellant Company was an unlawful sub-

tenant and therefore in unauthorised occupation. On the

basis thereof, the learned Single Judge expressed his views

that the interest of justice required that the matter be

remanded to the Estate Officer for fresh decision. It is at

that juncture that the learned counsel appearing for the

Life Insurance Corporation took exception to such course and

yet at the same time bargained that if remand be considered

necessary, it should open an opportunity to the Life

Insurance Corporation to raise its claim for damages in

accordance with law. This plea was objected to by learned

counsel appearing for the appellants on the procedural plea

that when the appellate court had quashed the order of

damages and there had not been any petition preferred by the

Life Insurance Corporation before the High Court, the matter

could not be raked up; all the more when it concerned the

original tenant as well, who had been deleted from the array

of parties before the learned Single Judge, by consent. In

the result, the learned Single Judge held as follows:

". ....I am of the clear view that

if at all the matter is to be

remanded to offer opportunity to

the petitioners to prove their case

of lawful sub-tenancy, in the facts

and circumstances of the case, the

interest of justice also require

that the Corporation as a public

body should get an opportunity to

press its claim for tne damages, in

the event prove that the

petitioners were unlawful sub-

tenants and therefore in

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unauthorised occupation of public

premises."

(emphasis ours)

As a result, both the orders of the Estate Officer

dated 17-3-1992 passed in Cases No.187/187-A of 1991 in

proceedings under Section 5 and 7 of the Act and the

appellate order of the Principal Judge, City Civil Court,

Bombay, in Miscellaneous Appeal No.85 of 1992 were quashed

in putting the matter back on the file of the Estate

Officer, to be dealt with in accordance with law. It was

made clear that the orders were set aside only insofar as

the appellant company was concerned and not in respect of

other parties.

This orders as said before, was left uninterfered with

by the Letters Patent Bench.

The aggrieved appellant Company maintains that the High

Court could not have deprived it of the advantage gained by

the orders of the Principal Judge, City Civil Court, in

rejecting the petition under Section 7 of the Act relating

to the question of damages. It is asserted that the High

Court has deprived the appellant-Company a validly accrued

right, gained under the processual law of the country. Under

the Act, Section 2(f) defines 'rent' in relation to any

public premises, to mean the consideration payable

periodically for the authorised occupation of the premises,

together with certain inclusions. Sections 4 and 5 provide

for issuance of notice to show-cause against an order of

eviction and the ultimate eviction of the unauthorised

occupant. Section 7 confers power on the Estate Officer to

require payment of rent or damages in respect of public

premises. If a person is an authorised occupant, he can be

required to pay the rent within such time and in such

instalments as may be specified in the order. Likewise, an

unauthorised occupant of any public premises may be required

by the Estate Officer to pay damages within such time and in

such instalments as may be stipulated in the order. Of

course, the Estate Officer in assessing damages would have

regard to such principles of assessment of damages as may be

prescribed as also to assess damages on account of use and

occupation of such premises. It is thus plain and clear that

unless the occupant is first adjudged as an unauthorised

occupant, his liability to pay damages does not arise. In

other words, if he is an authorised occupant, he may be

required to pay rent but not damages. The quality of

occupation and the quality of recompense for the use and

occupation of the public premises go hand in hand and are

inter-dependent. Such is the scheme of the Act.

The inherent temper of restraint of the High Court

under Article 226 of the Constitution was posed and pressed

into service by learned counsel for the appellants

contending that the High Court should not have opened up a

finalised litigation relatable to damages to barter a remand

on the question of the quality of occupation of the

appellant Company, i.e. whether it was authorised or

unauthorised. It was maintained that by conducts the Life

Insurance Corporation, respondent, had submitted to those

orders and had not put them to challenge in proceedings

under Article 226 and or Article 227 of the Constitution. On

that axis it was asserted that the direction on remand to

resettle the question of damages may be quashed, maintaining

the other direction and order with regard to the nature of

occupation. Regretfully we are not persuaded to adopt such

course.

It is well-settled that the High Court in exercise of

its jurisdiction under Article 226 of the Constitution can

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take cognisance of the entire facts and circumstances of the

case and pass appropriate orders to give the parties

complete and substantial justice. This jurisdiction of the

High Court, being extraordinary, is normally exercisable

keeping in mind the principles of equity. One of the ends of

the equity is to promote honesty and fair play. If there be

any unfair advantage gained by a party priorty, before

invoking the jurisdiction of the High Court, the court can

take into account the unfair advantage gained and can

require the party to shed the unfair gain before granting

relief. What precisely has been done by the learned Single

Judge, is clear from the above emphasised words which be re-

read with advantage. The question of claim to damages and

their ascertainment would only arise in the event of the

Life Insurance Corporation, respondent, succeeding to prove

that the appellant Company was an unlawful sub-tenant and

therefore in unauthorised occupation of public premises. If

the finding were to go in favour of the appellant Company

and it is proved to be a lawful sub-tenant and hence not an

unauthorised occupant, the direction to adjudge the claim

for damages would be rendered sterile and otiose. It is only

in the event of the appellant Company being held to be an

unlawful sub-tenant and hence an unauthorised occupant that

the claim for damages would be determinable. We see

therefore no fault in the High Court adopting such course in

order to balance the equities between the contestants

especially when it otherwise had power of superintendance

under Article 227 of the Constitution in addition. We cannot

be oblivious to the fact that when the occupation of the

premises in question was a factor in continuation the

liability to pay for the use and occupation thereof, be it

in the form of rent or damages, was also a continuing

factor. The cause of justice, as viewed by the High Court,

did clearly warrant that both these questions be viewed

inter-dependently. For those who seek equity must bow to

equity.

Besides, it is noteworthy that the Principal Judge of

the City Civil Court, had negatived the claim of damages on

taking a technical view of the matter because in his view

the assessment had been made more no assumptions than on

concrete evidence which was required to be adduced. Nowhere

was the finding recorded by that Court that damages were

altogether not due or that the appellant Company was not

liable; the period involved therein being from 1-3-1979 to

28-2-1992. Much time has elapsed thereafter. The respondent

Company continues to be in possession of the premises in

question. It would in any case be liable to pay for the use

and occupation thereof and that liability was only required

to be given a legal, character, depending upon the quality

of occupation. The High Court, in our view, committed no

wrong in putting the negated claim of damages on the scale

of justice as a balancer, before granting relief, in setting

aside the orders of eviction and effecting a remand, for

fresh disposal in accordance with law.

For the foregoing reasons, we find no case is made out

for our interference. As a result, this appeal fails and is

hereby dismissed, with costs.