Chong Hsin Wong and Others vs Life Insurance Corporation of India and Others

Dipankar Datta, J.—These writ petitions involve a common legal issue and hence this Bench proposes to decide the same by this common judgment and order.

Shorn of unnecessary details, the claim in W.P. 1134 of 2015 is that premises No. 2, Meredith Street, Bharat Niketan, Kolkata - 700 072 (hereafter the said premises) was originally owned by Bharat Insurance Company Limited (hereafter the company); that, the petitioner''s father, uncle and other family members used to reside in Flat No. D-2 on the 3rd floor of the said premises (hereafter the said flat) since late 1940/early 1950; that, the company had granted tenancy in the name of the petitioner''s uncle in respect of the said flat; that, the petitioner was born in 1954 in the said flat; that, consequent upon nationalisation of life insurance business, the assets and liabilities of the company were taken over by the Life Insurance Corporation of India (hereafter the Corporation), which became the owner of the said premises; that, even thereafter, the tenancy continued; that, the petitioner''s father had become a tenant in respect of the said flat under the Corporation and after his death, other surviving heirs and representatives have relinquished their tenancy rights in favour of the petitioner; that, despite having knowledge of the same, the Corporation refused to grant tenancy in respect of the said flat to the petitioner; that, as and when rent fell due the same was duly paid by the petitioner and received by the Corporation; that, vide a notice dated April 6, 2015 issued by an advocate acting for the Corporation, addressed to the petitioner''s dead father, the tenancy was determined and he was called upon to quit, vacate and deliver vacant possession of the said flat by May 31, 2015; that a notice to show cause was issued by the Estate Officer of the Corporation (hereafter the estate officer) in the name of the petitioner''s dead father under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereafter the 1971 Act) calling upon him to show cause within August 12, 2015 why an order of eviction shall not be made and fixing August 14, 2015 as the date of appearance; that, two other notices, both dated August 1, 2015 had been issued by the estate officer under section 7(3) and 7(1) of the 1971 Act calling upon the petitioner''s dead father to pay varying amounts as indicated therein on account of arrear rent, interest, etc.; and that, further notices have been issued by the estate officer fixing fresh dates of hearing upon brushing aside the response of the petitioner that no proceeding could have been initiated under the Act which is wholly inapplicable.

Since the estate officer has been continuing with the proceeding under the 1971 Act, this writ petition has been presented seeking order for quashing thereof including quashing of the notice to quit and the notices issued under the 1971 Act.

Insofar as the writ petition registered as W.P. No. 24821(W) of 2015 is concerned, it is gathered on perusal thereof that the petitioner, "a multi-purpose co-operative society created sometime on or before 1953 for the welfare of Railway employees", was inducted as a tenant of a portion of the ground floor of premises No. 131-A, Bipin Behari Ganguly Street, Kolkata - 700 012 (hereafter the said property) under the Railway Employees'' Co-operative Insurance Society Ltd. on the basis of a registered deed of lease dated March 13, 1954 for 16 (sixteen) years; that, on expiry of the said period, the petitioner "became a monthly tenant for ever"; that, the Corporation had taken over the property aforesaid "after 1971"; that, upon receipt of a notice under section 4 and section 7 of the 1971 Act dated July 1, 2015 issued by the Estate Officer of the Corporation, the petitioner duly responded by "contending, inter alia, that the tenancy is prior to 1958 September and the instant Act is not applicable against it"; that, the estate officer without reacting to such response has been continuing with the proceeding under the 1971 Act; that, in view of a clear judgment of the Supreme Court holding as to whether the 1971 Act is "applicable against an occupier who is in occupation of the said tenancy before September, 1958", and "to get the effect of the said judgment" the writ petition has been presented seeking, inter alia, Mandamus on the respondents not to proceed further against the petitioner for eviction "as the tenancy was commenced on or before September 1958, in view of the order of the Supreme Court reported in 2014 Sec.IV 657", and an order quashing the proviso to section 5 of the 1971 Act since "it is self-contradictory with the main subsection .... and at the same time which is against principle of natural justice".

Mr. Basu, learned advocate for the petitioner in W.P. 1134 of 2015 and Mr. Das Poddar, learned advocate for the petitioner in W.P. No. 24821(W) of 2015 contended that the proceedings initiated under the 1971 Act by the estate officer against the respective petitioners are illegal and without jurisdiction. According to them, the 1971 Act is prospective in its operation i.e. w.e.f. September 16, 1958 and the provisions thereof cannot be invoked against occupants of public premises who have been in possession thereof not only prior to September 16, 1958 but also prior to the Corporation becoming its owner. Relying on the decision of the Supreme Court in Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. and its Estate Officer, , it was contended that to evict the respective petitioners, the Corporation has to take recourse to the provisions of the relevant rent control legislation.

The contention urged on behalf of the respective petitioners does not impress this Bench. Although the dictum in Suhas Pophale (supra), a decision by two learned Judges, prima facie seems to support the contention of the respective petitioners, this Bench is of the further view that the facts of the present cases vis-�-vis the law applicable thereto are so dissimilar that such dictum is inapplicable here; rather, the issue raised in these writ petitions is squarely covered by the dictum of a Bench of larger strength of the Supreme Court in Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, .

It appears that Jain Ink Mfg. (supra) has been noticed in Suhas Pophale (supra) and this is what was observed:

"A judgment of a Bench of three Judges of this Court in Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, , 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 the 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 unauthorised 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 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."

In another recent decision, the same learned Judge who authored the judgment in Suhas Pophale (supra) while presiding over a Bench of two Judges had the occasion to reiterate in Central Bank of India v. National Rayon Corpn. Ltd., reported in (2014) 13 SCC 291, that Jain Ink Mg. Co. (supra) did not consider the issue of protection in a welfare legislation to the tenant, prior to the premises becoming public premises, and the issue of retrospectivity.

It would now be useful to notice the facts leading to the civil appeal before the Supreme Court in Jain Ink Mfg. (supra) and the contentions urged on behalf of the appellant, as recorded in paragraphs 2 and 4 thereof. The same read:

"2. The appellant was inducted as a tenant by one Mithanlal who was the owner of the premises in question and the rent payable at the time of the tenancy was Rs. 55 per month. The premises were, however, purchased by the Life Insurance Corporation of India (for short, LIC) at a court auction on July 19, 1958 and the appellant in view of the same attorned to the new landlord, namely, the LIC. The Delhi Rent Control Act of 1958 (hereinafter referred to as the "Rent Act") came into force on February 9, 1959 and on July 24, 1959 the new landlord gave a notice under Section 106 of the Transfer of Property Act to the appellant determining the tenancy. This notice, however, was subsequently withdrawn and after some correspondence with the appellant the rent was increased by the LIC from Rs. 55 to Rs. 125 per month. Sometime towards the end of July 1966, the LIC gave a fresh notice under Section 106 of the Transfer of Property Act purporting to determine the tenancy. Thereafter, there were some parleys between the LIC and the appellant and ultimately the LIC agreed to accept the enhanced rent of Rs. 300 per month from the appellant with effect from December 1, 1976. On April 23, 1977 the LIC gave another notice under Section 106 superseding the previous notice and directing the appellant to vacate the premises on or before May 31, 1977. As the appellant did not vacate the premises, the LIC filed a complaint with Respondent 2, the Estate Officer, LIC under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the "Premises Act"). Thereafter, the second respondent issued a notice to the appellant under Section 4(1) of the Premises Act to show cause why the appellant be not evicted. The appellant appeared before the Estate Officer and raised certain preliminary objections which having been decided against him, the appellant filed a writ petition in the Delhi High Court against the order of the Estate Officer and reiterated the preliminary objections taken by him before the Estate Officer. After considering the preliminary objections which mainly related to the question of jurisdiction of the Estate Officer to proceed under the Premises Act, the High Court overruled all the objections and dismissed the writ petition in limine, though by a reasoned order. Hence, this appeal to the Supreme Court.

***

In support of the appeal, Mr. Parmeshwar Rao submitted three main contentions before us. In the first place, he submitted that the provisions of the Premises Act would have no application to the present premises because the appellant could not be described as an unauthorised occupant as he had entered into possession of the premises long before they were purchased by the LIC. It was argued that the condition precedent for the assumption of jurisdiction by the Estate Officer was that the appellant must be an unauthorised occupant, and if the possession of the appellant was lawful, though the property changed hands subsequently, the appellant could not be dubbed as an unauthorised occupant. In this connection, reliance was placed on a decision of this Court in Rajkumar Devindra Singh and Another Vs. The State of Punjab and Others, ."

It was ultimately held:

"We have gone through the decision cited before us and we find that the provisions of the Punjab Act, which was the subject-matter of interpretation by this Court in that case, were substantially and materially different from Section 2(g) of the Premises Act which defines unauthorised occupation. Mr. Rao, however, strongly relied on the following observations made by this Court in the case : (SCC pp. 54-55, para 8)

''If the appellants were in possession before the date of the sale of the property to the government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the government.''

If these observations of this Court are torn from the context they may presumably support the argument of the appellant but we have to read these observations in the light of the specific provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (hereinafter referred to as the "Punjab Act"). Relevant portion of Section 3 of that Act may be extracted thus:

''For purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises:

(a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant.''"

(emphasis ours)

It would be seen that before a person could be said to be in an unauthorised occupation, the Act required the following conditions:

(1) that the occupant had entered into possession before or after the commencement of the Act,

(2) that he had entered into such possession otherwise than under and in pursuance of any allotment, lease or grant.

That Act, therefore, lays special stress on only one point, namely, the entry into possession. Thus, if the entry into possession had taken place prior to the passing of the Act, then obviously the occupant concerned would not be an unauthorised occupant. What made the occupancy unauthorised was his entry into possession at a particular point of time. It was in construing these provisions that this Court held that if the appellants in that case were in possession before the sale of the property to the government, their entry into possession could not be said to be unauthorised. These observations, however, would have absolutely no application to the instant case where Section 2(g) defines unauthorised occupation thus:

''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.''

To begin with, it is manifest that Section 2(g) does not use the word ''possession'' or the words ''entry into possession'' at any point of time at all. The section merely requires occupation of any public premises. Entry into possession connotes one single terminus viz. the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises. What is germane for the purpose of interpretation of Section 2(g) is whether or not the person concerned was in occupation of the public premises when the Premises Act was passed. In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force and in fact accepted the LIC as his landlord. In these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of ''unauthorised occupation'' as contemplated by Section 2(g) . There is yet another aspect of the matter which distinguishes the present case from the language employed in the Punjab Act. Section 2(g) is an inclusive definition and consists of two separate limbs- (1) where a person is in occupation in relation to any public premises without authority for such occupation, and (2) even if the possession or occupation of the tenant continues after the lease is determined. In the instant case, the lease was doubtless determined by the landlord by a notice under Section 106 of the Transfer of Property Act whose validity for purposes of deciding the question of law has not been questioned by the learned Counsel for the appellant. Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined. The second limb mentioned in Section 2(g) is conspicuously absent from the provisions of the Punjab Act. For these reasons, we overrule the first contention raised by the counsel for the appellant and we hold, agreeing with the High Court, that the appellant was undoubtedly in unauthorised occupation of the premises."

The second contention put forward by Mr. Rao was that in view of the provisions of the Rent Act which override the provisions of the Premises Act, Section 14 of the Rent Act completely bars recovery of possession of any premises except in accordance with the procedure laid down in the Rent Act. It was contended by Mr. Rao that although the Premises Act was passed in 1971, it has been given retrospective effect from September 16, 1958 and, therefore, should be construed as a law having been passed in 1958 and as the Rent Act was passed in 1959 it overrides the Premises Act. We are, however, unable to agree with this argument. In the first place, the Premises Act was passed in 1971 and came into force on August 23, 1971, that is to say, long after the Rent Act was passed in 1959. The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is to say, August 23, 1971. In these circumstances, therefore, the Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act. It was further contended by Mr. Rao that the Rent Act being a special law as compared to the Premises Act, it will override the Premises Act without going into the question as to which of the two Acts were prior in point of time. In support of his contention the counsel relied on a decision of this Court in Shri Sarwan Singh and Another Vs. Shri Kasturi Lal, , where this Court observed as follows: (SCC p. 760, para 20)

''When two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.''

(emphasis supplied)

It is true that in both the Acts there is a non-obstante clause but the question to be determined is whether the non-obstante clauses operate in the same field or have two different spheres though there may be some amount of overlapping. The observations cited above clearly lay down that in such cases the conflict should be resolved by reference to the object and purpose of the laws in consideration. In Shri Ram Narain Vs. The Simla Banking and Industrial Co. Limited, , this Court made the following observations:

''It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.''

In the light of the principles laid down in the aforesaid cases we would test the position in the present case. So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government. Thus, the Premises Act has a very limited application. Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves. That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, , such authorities were held to form a class and, therefore, immune from challenge on Article 14 of the Constitution. Similarly, the summary procedure prescribed by the Premises Act is also not violative of Article 14 as held by this Court in Maganlal Chhaganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay and Others, .

Thus, it would appear that both the scope and the object of the Premises Act is quite different from that of the Rent Act. The Rent Act is of much wider application than the Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in Section 2 of the Premises Act. The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither a corporation nor government or corporate bodies. It would be seen that even under the Rent Act, by virtue of an amendment a special category has been carved out under Section 25-B which provides for special procedure for eviction to landlords who require premises for their personal necessity. Thus, Section 25-B itself becomes a special law within the Rent Act. On a parity of reasoning, therefore, there can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a special Act and overrides the provisions of the Rent Act.

It was also suggested by Mr. Rao that in view of Section 3(a) of the Rent Act, which is extracted below, it would appear that the intention of the legislature in passing the Rent Act was merely to exclude from its operation only premises belonging to the government and if the intention was to exclude other premises belonging to corporate Bodies or corporations, then Section 3(a) should have been differently worded:

''3. Nothing in this Act shall apply:

(a) to any premises belonging to the government."

This, in our opinion, does not advance the case of the appellant any further because once the Premises Act becomes a special Act dealing with premises belonging to Central Government, corporations and other statutory Bodies, the Rent Act stands superseded. We have to consider the provisions of the two Acts, they having been passed by the same legislature viz. Parliament, and the rule of harmonious construction would have to apply in such cases.

For these reasons, we overrule the second preliminary objection taken by the appellant.

(underlining for emphasis by this Bench)

The third objection and how the same was dealt with by the Supreme Court not being relevant for the present discussion, is not adverted to.

The decision in Jain Ink Mfg. (supra) has been quoted in extenso with a purpose. But for the same, its applicability to the facts of the instant writ petitions would seem to be obfuscated.

It is the admitted case of the petitioner in W.P. 1134 of 2015 that consequent upon nationalisation of life insurance business, the assets and liabilities of the company were taken over by the Corporation. Although no date has been referred to, this Bench can take judicial notice of the fact that the Life Insurance Corporation Act, 1956, which was enacted to provide for the nationalisation of life insurance business in India by transferring all such business to a Corporation established for the purpose and to provide for the regulation and control of the business of the Corporation and for matters connected therewith or incidental thereto, came into force w.e.f. July 1, 1956. Therefore, the said flat became a public premises w.e.f. September 16, 1958 i.e. the date from which the 1971 Act was given retrospective operation.

The passage in Jain Ink Mfg. (supra), which has been underlined by this Bench, provides a complete answer to the issue that has arisen in this writ petition. The Corporation became the owner of the said premises before September 16, 1958. Not only that, the petitioner in W.P. 1134 of 2015 also accepted the Corporation as the owner by paying rent to it. It is only on the premise that occupation of the petitioner has been considered to be unauthorised that notice under section 4 of the 1971 Act has been issued. Since the 1971 Act and section 2(g) thereof defining unauthorised occupation do not even remotely refer to the point of ''entering into possession'' and is concerned only with occupation of a public premises, whether authorised or not, the mere fact that the petitioner''s predecessor-in-interest had entered into possession of the said premises under a private landlord makes no difference and Suhas Pophale (supra) which, to the mind of this Bench, would apply to Maharashtra and other Indian states having provisions exactly similar to the Maharashtra Rent Control Act, 1999, can have no application here.

Insofar as W.P. 24821(W) of 2015 is concerned, interesting features emerge on perusal of an order passed by a coordinate Bench on August 30, 2007 while hearing a civil revisional application filed by the petitioner [C.O. No. 2784 of 2000] and a judgment dated August 24, 2012 passed by an appellate officer under section 9 of the 1971 Act (the Judge, Fourth Bench, City Civil Court, Calcutta). The petitioner was proceeded against earlier under the 1971 Act for non-payment of monthly rent and sub-letting. The parties arrived at a settlement pursuant whereto the Corporation received rent from the petitioner @ Rs. 1,210/- per month till March, 1997. In the meanwhile, the eviction proceeding stood disposed of at the end of the estate officer on October 25, 1994. The Corporation thereafter prayed before the estate officer for revival of the eviction proceeding, which was refused by an order dated June 23, 1999. The Corporation carried such order in appeal with a prayer for condonation of delay. Delay was condoned by an order dated August 3, 2000 of the appellate officer under section 9 of the 1971 Act (the Chief Judge, City Civil Court, Calcutta). Such order condoning the delay in preferring the appeal was subjected to challenge by the petitioner in the above referred revisional application. The coordinate Bench by its order dated August 30, 2007 allowed the revisional application by setting aside the order impugned and directing the appellate officer to consider the prayer for condonation of delay afresh. Following such order, the appellate officer vide judgment dated August 24, 2012 held the appeal to be not maintainable under section 9 of the 1971 Act observing that an appeal would lie thereunder against specified orders of the estate officer and not against all orders, and the order refusing revival was not one of such specified orders.

In the order dated August 30, 2007, the coordinate Bench had the occasion to rule:

"Having considered the submissions of the learned Advocates of both the sides and on going through the record, I find that it is not in dispute that the petitioner is a tenant under the respondent No. 1 and that the dispute between the parties shall be governed by the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971."

The above ruling has attained finality, by reason of the same remaining unchallenged. The contention of Mr. Das Poddar that the petitioner''s tenancy is protected under the West Bengal Premises Tenancy Act, 1956 cannot be considered since res judicata stands in the way. Once it has been declared by a competent Court of law that the dispute between the petitioner and the Corporation would be governed by the 1971 Act, it is impermissible for this Bench to reopen the issue on this writ petition. The contention obviously has to be overruled.

Even otherwise, the contention on merits would fail having regard to the discussion made above while dealing with W.P.1134 of 2015. Nationalisation of insurance business occurred in 1956 and not 1971, as averred in the writ petition. The Corporation became the owner of the said property in 1956, which became ''public premises'' as defined in section 2(e) of the 1971 Act w.e.f. September 16, 1958. Although the pleadings are silent on the point of payment of rent to the Corporation by the petitioner, the judicial orders referred to above record that the petitioner accepted the Corporation as its landlord and paid rent to it. Moreover, ''entering into possession'' is not relevant for invocation of the 1971 Act, as held in Jain Ink Mfg. (supra). If occupation of a property that is ''public premises'' is unauthorised, meaning thereby that section 2(g) is attracted, the owner of such public premises would be well within its right to initiate proceedings for recovery of possession and other relief. Also, section 3 of the West Bengal Premises Tenancy Act, 1997 excludes properties of statutory corporations from its purview. From whichever angle one views it, the conclusion is inescapable that the proceeding initiated against the petitioner is not liable to be interdicted on the authority of Suhas Pophale (supra), which is clearly distinguishable.

In the result, the challenge laid to the impugned notices fail. The writ petitions are dismissed, without costs.

The respective petitioners shall be entitled to raise such defence before the estate officer as are available to them in law, other than those raised in these writ petitions and the estate officer shall proceed to decide the same, also in accordance with law.

Photocopy of this judgment and order duly countersigned by the Assistant Court Officer shall be retained with the records of W.P. No. 24821(W) of 2015.

Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.

Later: Mr. Basu and Mr. Poddar, learned advocates, have prayed for stay of operation of the order. The same is considered and refused.