Gujarat High Court
Ramkumar Sukhchandan Gupta vs O.L. Of The Navjivan Mills Company Ltd. ... on 18 March, 2008
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1. Since common issue is involved in all these Company Applications and since they are being more or less heard together, the same are being disposed of by this common judgment and order.
2. The applicants in all these Company Applications have taken out Judge's Summons praying for quashing and setting aside notice dated 5.6.2006 issued by the Official Liquidator calling upon the applicants to vacate the premises, which are unauthorizedly occupied by them, and to hand over the vacant and peaceful possession of the premises to the Official Liquidator, failing which the Official Liquidator will have to initiate action to forcibly remove them from the premises of the Company in liquidation, with police assistance in order to proceed with the liquidation proceedings of the Company. The applicants have also prayed for the direction to restrain the respondent from disturbing the possession and use of the shop situated at Navjivan Mills premises of Mouje Village - Kalol, Taluka and District - Gandhinagar.
3. An affidavit in support of respective Judge's Summons is filed by each of the applicants. Mr. R.S. Sanjanwala, learned advocate appears for the applicants in Company Application Nos. 421 to 435 of 2007 and Mr. D.S. Vasavda, learned advocate appears for the applicant in Company Application No. 399 of 2007. Ms.Amee Yagnik, learned advocate appears on behalf of the Official Liquidator and Mr. Gaurav S. Mathur, learned advocate appears on behalf of the respondent Nos. 2 to 5 in all these applications.
4. The brief facts giving rise to the present applications are that the applicants are claiming themselves to be the tenants of the respective shops occupied by them, situated at Navjivan Mills premises of Mouje Village - Kalol, Taluka & District - Gandhinagar. It is the say of the applicants that the shops were given either to them or their predecessors on rent by the Company in liquidation. The tenancy rights in the subject premises are evidenced by the documents such as rent note, rent receipt, certification of registration under Bombay Shops and Establishment Act, electricity bill, election card, telephone bills and some miscellaneous documents.
5. It is the say of the applicants that the applicants have been regularly paying the rent for the subject premises as is evidenced by the rent receipt issued by the Company in liquidation and/or the Official Liquidator of the Company in liquidation. The Company or the Official Liquidator had not initiated any proceedings against the applicants for recovering possession of the subject premises either before the order of winding up of the company or thereafter. On and from July, 2003 the Official Liquidator stopped accepting rent of the subject premises. However, the amount payable as and by way of rent was sent to the Official Liquidator by demand draft under cover of Registered Post A.D. letter. It is further contended that if there are any arrears of rent, the applicants have shown their readiness and willingness to deposit the same in Court or to pay the same to the Official Liquidator or to the respondent Nos. 2 to 5. Even after the sale of the property in favour of the respondent Nos. 2 to 5, the applicants have offered rent to respondent Nos. 2 to 5 or any one of them.
6. It is the say of the applicants that after the Company was ordered to be wound up, a letter dated 14.6.1993 was addressed by Security Officer of the Company in liquidation to the Official Liquidator, enclosing therewith statement giving list of tenants and the rent collected from them. It was, therefore, contended that there was no dispute about the fact that the applicants were tenants of the subject property.
7. It is also the say of the applicants that on or around 10.6.2003 an advertisement was issued notifying sale of land of the company in liquidation. The land put up for sale was described as land admeasuring 95212 Sq. Yds., situated at Kalol, District - Gandhinagar, except records of the Company in liquidation. The sale was on Sas is where is whatever there is basis. The offers received were scrutinized by the Official Liquidator and a report was filed being OLR No. 18/2003, inter alia, praying that the sale be confirmed. After considering the report of the Official Liquidator, this Court by order dated 28.11.2003 confirmed the sale in favour of Deep Estate (subsequent purchaser) at Rs. 4.67 crores. It is also the say of the applicants that though the advertisement described the land as admeasuring 95212 Sq. Yards, the valuation report which was produced before this Court divided the land into two parts, namely, 87759 Sq. Yards (73377.21 Sq. Mtrs.) of clear land and 6870 Sq. Yards (5744.42 Sq.Mtrs.) of leasehold land. The building in which shops are situated stand on the leasehold land admesuring 5744.42 Sq.Mtrs. It is, therefore, contended that interest of the area covered by the building in which the applicants' shops were situated, separate valuation was attached by the Official Valuer as well as purchaser and accordingly the prices were quoted. It is further contended that the sale deeds were executed in favour of the purchaser and its three nominees and they have purchased the land obviously on the basis of Sas is where is basis, which includes the tenancy rights of all the occupants of the shops situated in 5744.42 Sq.Mtrs. of land.
8. Mr. Sanjanwala submitted that the lands belonging to the Company in liquidation alongwith construction standing thereon which would include the subject property, having been sold, the Official Liquidator has lost control or authority over the said property. The Official Liquidator was, therefore, not entitled to demand possession from the applicants or to take steps for taking possession from the applicants. However, by notice dated 5.6.2006, the Official Liquidator describing the applicants' possession as unlawful, directed them to hand over peaceful and vacant possession to the Official Liquidator threatening that in case of failure to do so, the possession would be taken over under the police assistance. The said direction by the Official Liquidator was not in pursuance of any order of this Court nor it is in exercise of any authority or power under the provisions of the Companies Act, 1956. It is further contended that the said directions have been issued at the instance of the respondent Nos. 2 to 5, who for the malafide purpose of removing the applicants from the subject premises, persuaded the Official Liquidator to issue public notice dated 5.6.2006. Thus, applicants have contended that the said notice issued by the Official Liquidator is per-se without jurisdiction or authority in law as the Official Liquidator, after sale of the assets has become functus officio and is not entitled to demand possession from the applicants either in law or on the facts of the case.
9. Mr. Sanjanwala submitted that being aggrieved by the notice issued by the Official Liquidator, the applicants have filed Company Application No. 293 of 2006 before this Court. This Court by an order dated 1.12.2006 allowed the said application. However, OJ Appeal No. 71 of 2007 was preferred against the said order by the respondent Nos. 2 to 5. Vide order dated 6.8.2007, the Division Bench of this Court has set aside the order dated 1.12.2006 of the learned Company Judge and remanded the matter for fresh decision. Under the said order, all the applicants of the Company Application No. 293 of 2006 were directed to file separate individual application. In view of the above referred order, separate individual applications were preferred by the applicants. The applicants have also undertaken to withdraw the Company Application No. 293 of 2006 in view of the present separate individual applications.
10. Mr. Sanjanwala, at the out set, raised an objection against hearing of all these applications by this Court (Coram: K.A.Puj,J.), being a party to the decision of Division Bench in OJ Appeal No. 71 of 2007. This objection is, however, not sustainable as the Division Bench has not expressed any opinion on the merits of the matter. Since the present respondents No. 2 to 5 were not parties in Company Application No. 293 of 2006 and the learned Company Judge has decided the said application and passed an order, without impleading them as parties and without hearing them, the Division Bench has quashed and set aside the said order with a direction to the learned Company Judge to decide afresh after allowing the applicants to file separate applications and after hearing respondents No. 2 to 5 in the matter. Mr. Sanjanwala further raised an objection that scope of remand is very limited and if the applicants were able to produce reliable and cogent evidence at least for the purpose of prima facie satisfying the Company Court that they were lawfully inducted tenants in respect of the property in question, they are entitled to the relief sought for in the applications. Detailed inquiry or appreciation of evidence is not envisaged under the said remand order. He has, therefore, submitted that since the applicants produced reliable and cogent evidence in their favour, prima facie establishing that they are lawfully inducted tenants, the respondents may be directed to approach competent Civil Court seeking eviction of the applicants.
11. Mr. Sanjanwala submitted that after the lands of the Company in liquidation were purchased by the respondent Nos. 2 to 5 or after the rights were acquired in the said lands by them, the efforts were made by the respondent Nos. 2 to 5 to remove the applicants. All efforts to remove the applicants were, however, opposed. Some of the applicants have filed Regular Civil Suit No. 41 of 2006 in the Court of learned Civil Judge (J.D.) Kalol against Mahendra Kashiram Patel, Jyotindra Ambalal Barot, Ramesh Kashiram Patel, who is President of Kamdhenu Non-trading Association, the present respondent No. 4, M/s.Deep Estate Developers Pvt. Ltd., the present respondent No. 2 and Shri Amrut Kashiram Patel. The plaintiffs of the said suit have contended that they are the tenants of various shops mentioned in the plaint and that the said defendants by removing roof of certain shops on the first floor are trying to damage the shops of the plaintiffs of the said suit. The plaintiffs of the said suit also filed application Ex.5 for interim injunction restraining the defendants of the said suit from disturbing the use and occupation of the properties of the plaintiffs of the said suit. By an order passed on 5.3.2007, ad-interim injunction was granted directing the defendants of the said suit that they shall not remove the roof of the shops of the plaintiffs of the suit and the staircase leading towards the plaintiffs' shops. After bi-parte hearing, trial Court directed status quo to be maintained in respect of the roof and the staircase of the properties, which are subject matter of the said suit. The trial Court while passing the above order has accepted the tenancy rights of the plaintiffs of the said suit. He has, therefore, submitted that in the reply/written statement filed by the defendants of the said suit, the tenancy rights of the plaintiffs of the suit are admitted by the defendants.
12. In the above background of the matter, Mr. Sanjanwala submitted that the notice issued by the Official Liquidator treating the possession of the applicants as unlawful and unauthorized and calling upon them to hand over the vacant and peaceful possession of the subject premises is per-se without authority of law and without jurisdiction and de horse the provisions of the Companies Act, 1956. It is further contended that the properties having been sold by this Court, the Official Liquidator has lost control and authority over the subject property and cannot demand possession from the applicants. The possession of the property was not demanded prior to sale in favour of the respondent Nos. 2 to 5 and the sale of the subject property was on 'as is whereis whatever there is basis' and hence the notice issued by the Official Liquidator is required to be quashed and set aside.
13. Mr. Sanjanwala further submitted that if at all the respondent Nos. 2 to 5 are desirous of obtaining vacant and peaceful possession of the subject property, they are entitled to the remedies in law. It is alternatively contended that the Official Liquidator could not have straightway issued notice treating the applicants' possession as unlawful and demanding vacant and peaceful possession from the applicants. If any property of the Company in liquidation is found in possession of the third party, the Official Liquidator has to move appropriate proceedings under the Companies Act, before the Company Court seeking appropriate order in this regard. The action of the Official Liquidator is, therefore, arbitrary and unauthorized exercise of powers and hence the notice is required to be quashed and set aside.
14. Mr. Sanjanwala further submitted that, even otherwise, the applicants are lawful tenants of the subject premises as is evident from the documents produced alongwith their respective applications and are entitled to protection under the Bombay Rents Hotel and Lodging Housing Rates Control Act, 1947. The possession of the subject premises as tenant cannot be disturbed otherwise than by following the procedure prescribed by the law. He has therefore submitted that the respondent Nos. 2 to 5 ought to be relegated to their remedies in law, if they desire, to have vacant and peaceful possession of the subject property. The issue can better be adjudicated by a competent Civil Court on appreciation of oral as well as documentary evidence that may be led by respective parties. The impugned notices are, therefore, required to be quashed and set aside even on this ground.
15. Mr. D.S. Vasavda, learned advocate appearing for the applicant in Company Application No. 399 of 2007, has adopted more or less the arguments and submissions of Mr. Sanjanwala and submitted that the notice issued by the Official Liquidator is barred by period of limitation. The applicant being the ex-workmen of the Mills Company and was allotted the premises for his residence and he has been paying rent to the ex-management prior to winding up and thereafter, to the Official Liquidator, he cannot be evicted by the Official Liquidator without due process of law. Mr. Vasavda further submitted that once the property in question having been sold to the respondents Nos. 2 to 5 by public auction in pursuance of an order of the Court, the sale became absolute and the title vested in them. The Official Liquidator, thereafter cannot issue any notice for eviction. He relied on the decision of the Hon'ble Supreme Court in the case of B.Arvind Kumar, AIR SCW 4080. He, therefore, prayed for quashing and setting aside the impugned notice and to allow the application filed by the applicant.
16. The Official Liquidator has filed his report on 24.12.2007 in all these Company Applications. Based on this report, Ms.Amee Yagnik, learned advocate appearing for the Official Liquidator submitted that there is a specific clause in the conveyance deed, under which the Official Liquidator is not only authorized/empowered but is duty bound to take all such actions as may be necessary for the purpose of granting, conveying and transferring the title and possession of the properties more perfectly and absolutely in favour of the purchaser. She has further submitted that the Division Bench of this Court vide order dated 6.8.2007 passed in OJ Appeal No. 71 of 2007 held that the respondent Nos. 2 to 5 were necessary parties and the Company Application No. 293 of 2006 could not have been decided without joining the respondent Nos. 2 to 5 as party respondents and without giving them an opportunity of reasonable hearing and the applicants were not entitled to succeed merely on the ground that the Official Liquidator had become functus officio and they were required to show their title to the land and to produce reliable and cogent evidences at least for the purpose of prima facie satisfaction of the Company Court that they were lawfully inducted tenants in respect of the property in question. The Division Bench has decided the said Appeal keeping contentions of the parties open for deciding the controversy by the learned Company Judge on filing separate individual applications by the applicants.
17. So far as merits of the applications and the contentions raised therein are concerned, Ms.Yagnik has submitted that the Company did not execute any lawful and valid lease deed in favour of the applicants and, therefore, they have never been lawful tenants of the Company in liquidation. The applicants have not produced on record any lawfully and validly executed lease deed in their favour or even rent note conferring any right upon them to hold or continue to hold possession of the property for ever. The applicants have produced certain documents establishing their possession. In fact, possession is not in dispute, but their right to continue in possession is very much in dispute. The documents produced by the applicants on record, do not and cannot establish any permanent tenancy in their favour or a lawful right to remain in possession. She has further submitted that the Official Liquidator had never admitted or acknowledged the tenancy claim of the applicants. However, since the premises was not required by the Official Liquidator immediately for the winding up purposes, the applicants were not evicted immediately on passing of the winding up order, and a compensation as a license fee was received from some of them. She has, therefore, submitted that the applicants do not have any right, title or interest in the property of the Company and they do not have any lawful right to retain the possession of the properties of the Company and the Official Liquidator is duty bound to evict and remove them from their unauthorized and illegal occupation of the properties of the Company so as to enable him to hand over vacant and peaceful possession of the properties of the Company to the purchaser for the purpose of concluding the winding up proceedings. She has, therefore, submitted that the applications deserve to be rejected with further direction to the applicants to hand over vacant and peaceful possession of the premises in their unauthorized and illegal occupation, to the Official Liquidator forthwith.
18. On behalf of the respondent Nos. 2 to 5 affidavit-in-reply is separately filed in each of these applications. Mr. Gaurav Mathur, learned advocate appearing for respondents Nos. 2 to 5 submitted that the applicants are not the tenants nor in lawful possession of the subject premises. The applicants have not produced on record any rent note or agreement in the name of the applicants. The rent receipts issued by the Official Liquidator are not considered to be the valid rent receipts. It was further contended that the Company in liquidation could not have given the premises on lease to the applicants as the shops were situated on the lease hold land. The alleged tenancy was not bonafide tenancy and the alleged rent receipts issued by the Official Liquidator cannot confer any tenancy right nor do they suffice to say that the applicants are tenants of the subject premises. With regard to the dispute raised about the lease hold land, he has submitted that the area of 5744.42 Sq.Mtrs., of lease hold land, sold to the respondent Nos. 2 to 5 refers to the land that the Company had acquired on lease. The same does not and cannot mean that the said land was given on lease and the sale of the said property on 'as is whereis and whatever there is basis' would be inclusive of the alleged tenancy rights of the applicants. With regard to the averments made about Civil Suit filed before the Kalol Court, he has submitted that the said suit does not pertain to the property claimed by the applicants as the same pertains to City Survey Nos. 3159 to 3160 and not the City Survey No. 3172, which is being claimed by the applicants. In any case, in the said suit there was no prayer for declaration of tenancy right. Even otherwise, the order dated 5.3.2007 passed by the trial Court is manifestly erroneous since the trial Court has relied on the order dated 1.12.2006 passed by this Court wherein this Court has expressly stated in para-8 that the said order does not express any opinion on merits and does not decide the right and legality of the occupation of the applicants. It is further contended that the sale deed clearly provides that the Official Liquidator conveys and assures the said property to the purchasers i.e. respondent Nos. 2 to 5, with all rights and privileges appurtenant thereto with the right to or enjoyed therewith without any interruption, obstruction, claim or demand whatsoever at law and in equity. The said Deed further provides that the purchasers i.e. respondent Nos. 2 to 5 are assured by the Official Liquidator of use and benefit of the said property as absolute owners thereof, without any interruption, obstruction, claim or demand whatsoever at law and in equity. It is further contended that even at the time of bidding and confirmation of sale of the said property, there were illegal encroachers upon the said property as noted by this Court in the said confirmation order, pursuant to which the sale deed was executed.
19. In view of the sale confirmation order and the provisions contained in the sale deed, the Official Liquidator has rightly issued the impugned notices dated 5.6.2006 for eviction, calling upon them to vacate said property from their unauthorized occupation and hand over the vacant and peaceful possession of the premises to the Official Liquidator. He has, therefore, submitted that all these applications deserve to be rejected.
20. After having heard learned advocates appearing for the respective parties and after having gone through the applications, documents attached therewith report of the Official Liquidator and affidavit-in-reply filed on behalf of the respondents Nos. 2 to 5 and after having considered very carefully the relevant statutory provisions contained in the Bombay Rent Act as well as Companies Act, 1956, and the authorities cited before the Court, this Court is of the view that none of the applicants before this Court is entitled to the relief claimed in their respective applications. First of all, there is no substance in the argument that the scope of remand order is very limited. As a matter of fact, the applicants are required to show their title to the land. They are supposed to produce reliable and cogent evidence to satisfy that they were lawfully inducted tenant in respect of the property in question. Barring two or three applicants, all others were not even able to produce rent notes before the Court. The rent receipts, electricity bills, election card,, telephone bills, etc are not such documents which prima facie satisfy the Court that they are lawfully inducted tenants. Even rent notes, produced are not capable enough to confer any right on those applicants to retain the possession of the Company's premises after it went into liquidation. Section 456 of the Companies Act, 1956 provides that where a winding up order has been made or a Provisional Liquidator has been appointed, the Liquidator or the Provisional Liquidator as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the Company is or appears to be entitled. Property which is in the possession of a tenant is the property of the Company, and on the appointment of the Provisional Liquidator or the Liquidator under the authority of the Court, the Liquidator is entitled to take into his hands all the properties which belong to or which appear to belong to the Company. Section 457(1)(c) of the Act authorises the Liquidator in a winding up to have power with the sanction of the Court to sell the immovable and movable property and actionable claims of the Company by public auction or private contract, with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels. The Liquidator would also be entitled to do all such other things as may be necessary for winding up the affairs of the Company and distributing its assets. Section 477(6) of the Act provides that if, on his examination, any such officer or person admits that he has in his possession any property belonging to the Company, the Court may order him to deliver to the Provisional Liquidator/Liquidator, as the case may be, that property or any part thereof, at such time, in such manner and on such terms as seem just to the Court. The endeavour of a Company Judge in the case of a Company in liquidation is to convert every property of the Company into cash and distribute it either pari passu or pro rata in accordance with the provision of the Companies Act. If the applicant - Company was allowed to continue as tenant it would not be an act of prudence and was likely to reduce the value of the property. This view is fortified by the decision of Patna High Court in the case of Rohtas Industries Ltd., and Anr. v. Official Liquidator reported in 128 Company Cases 421 (Patna).
21. Once the property of the company is sold and possession is handed over to the purchaser, the duty and function of the Official Liquidator is not over, even if the sale is SAs is whereis and whatever there is basis. The Official Liquidator and the purchaser both are bound by the terms and conditions of tender document and the provisions of conveyance deed. While executing the deed of conveyance in favour of the respondents Nos. 2 to 5, the Official Liquidator gave an assurance to the respondents Nos. 2 to 5 that they shall be in a position to use and enjoy the property sold to them without any claim, hindrance, obstruction or demand. He has also covenanted to do all such acts and deeds required to affirm the said assurance. The Official Liquidator, therefore, cannot be said to be functus officio nor can he be prevented from asking vacant and peaceful possession of the premises occupied by the applicants.
22. Considering statutory provisions contained in the Companies Act, 1956, the Court is of the view that the Official Liquidator is entitled to claim possession of the premises in question on termination of the lease agreement, if any, as soon as Company went into liquidation. In the case of K.K. Dhawan v. Dr. (Mrs.) Promila Suri reported in All India Rent Control Journal 1998 (1) 181, the Delhi High Court has held that relationship of landlord and tenant is created by a contract, mere payment of rent does not necessarily establish the relationship of landlord and tenant. The Hon'ble Supreme Court in the case of Sheodhari Rai v. Suraj Prasad Singh , has held that payment of rent does not necessarily establish relationship of landlord and tenant. Such payment may only prove permissive occupation not amounting to any right or title to possession. Even in case of D.H. Maniar v. Waman Laxman Kudav , the Hon'ble Supreme Court has held that a person continuing in possession of the premises after termination, withdrawal or revocation of the license continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
23. Judgments relied upon by Mr. Sanjanwala in support of his various contentions would not render much assistance to the applicants.
24. The decision of the Hon'ble Supreme Court in the case of Smt. Nirmala R. Bafna and Ors. v. Khandesh Spinning and Weaving Mills Co. Ltd., (Supra) would not apply to the facts of the present case. In the case before the Hon'ble Supreme Court, the liquidated Company was a tenant and had sub-let the portion of tenanted premises with the consent of the landlord. The consent of landlord however was not duly established before the High Court. The High Court disbelieving factum of landlord's consent directed the Liquidator to take possession of tenanted premises of liquidated Company, permitted the sub-tenant to occupy the portion of it as agent of Liquidator, enhanced the rent and passed other directions. The consent of landlord to creation of sub-tenancy was later on established before the Supreme Court which in turn held that in the above circumstances, the sub-tenant's claim of protection of Bombay Rent Control Act cannot be rejected. In this context, the Hon'ble Supreme Court held that merely because a Company goes into liquidation and a Liquidator / Official Liquidator is appointed, the rights of the Company vis.a.vis its landlord and/or its tenants do not undergo any change and in view of these facts and circumstances, the directions made by the High Court were not really warranted.
25. In the present case, the Company in liquidation has not created any tenancy or sub-tenancy nor given its consent to the alleged tenancy rights of the applicants. On the contrary, the Official Liquidator issued notices of eviction and pursuant to the directions of this Court, he tried to implement the said notices. Since there being no tenancy rights of the applicants, there is no question of undergoing any change in the rights of the Company vis.a.vis the applicants.
26. Similarly, the decision in the case of Tirath Ram Gupta v. Gurubachan Singh and Anr. (Supra), is relied upon by the applicants for limited purpose to contend that the law does not require a written agreement of lease and tenancy can be brought about by an oral agreement between the parties. The case before the Hon'ble Supreme Court was eviction of sub-tenant's on surrender of lease by the tenant. An agreement of lease was not in dispute. It was observed in this context that a lease is a transfer of a right to enjoy the property. It creates an interest in the property by virtue of the contract of lease which may be either oral or written. The interest created in the property can be put an end to by terminating the contract. The contract, however, cannot be terminated in part. Since agreement of lease was not in dispute and that was sought to be terminated in part, the above observations were made. Here in the present case, there is no admission of leasehold or tenancy rights of the applicants nor there are any valid documents to this effect. Hence, there is no question of presuming any oral or written contract between the company and the applicants.
27. In the case of Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad and Ors. (Supra), the appellant was a tenant of certain residential premises situate at Anand and belonging to the respondent - landlords. There was a contract of lease and the appellant did not pay rent nor evicted the premises despite service of notice under Section 12(3)(a) of the Bombay Rent Act. The respondents landlords, therefore, filed the suit for ejectment basing their claim ejectment on the provisions of Section 12(3)(a) of the Bombay Rent Act. In this context, the Hon'ble Supreme Court held that the provisions of Section 12 of Bombay Act 57 of 1947 will operate against the landlord after the determination of the tenancy by any of the modes referred to in Section 111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined. The section does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. A landlord's right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not on account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what Sub-section (1) requires of him. Hence, where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under Section 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him, it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under Sub-section (2) of Section 12 of the Act.
28. Here in the present case, applicants are not the tenants under any agreement and they are not in possession of the premises under a lease from the Company.
29. In the case of Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai (Supra), admittedly, there is relationship of landlord and tenant between the parties and the landlord called upon the tenant to deliver possession of the premises alleging that the tenant had failed to pay rent and the tenant in reply contended that he had paid rent at the agreed rate and that he was entitled to get credit for certain amount being the costs incurred by him for Selectric installation in the premises with the consent of the landlord and that the rent stipulated was excessive. In this context, it was observed that the clause applies to a tenant who continues to remain in occupation after the contractual tenancy is determined. It does not grant a right to evict a contractual tenant without determination of the contractual tenancy. Protection from eviction is claimable by the tenant even after determination of the contractual tenancy so long as he pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy consistent with the provisions of the Act.
30. The Court is also not much impressed with the argument that the property sold to the respondents Nos. 2 to 5 is comprising free-hold as well as lease hold land and the lease hold land refers to the property, which is given on lease to the applicants. The price at which the lease hold property was sold to the respondents Nos. 2 to 5 are less as compared to the price of free-hold land. This argument canvassed on behalf of the applicants is contrary to the facts and evidence on record. As a matter of fact, the Company was holding free-hold as well as lease hold land and refers to the lease hold land means the land held by the Company on lease. It is not referring to the properties occupied by the applicants and the sale of the property Sas is whereis and whatever there is basis does not include the alleged tenancy rights of the applicants. Reliance placed by the applicants on the Civil Court proceedings and the order passed by the learned Civil Judge (J.D.) Kalol below an application Ex.5 in Civil Suit No. 41 of 2006 does not in any case support the case of the applicants. There was no prayer for declaration of tenancy right in the said suit. Even otherwise, the alleged admission of the defendants in the said suit regarding acceptance of plaintiffs as tenants is contrary to the entire proceedings, as all through out the defendants have denied by teeth and nail the tenancy rights of the plaintiffs. While granting the interim relief the trial Court has relied on the order passed by this Court on 1.12.2006. However, in the said order it was specifically made clear by this Court that the said order does not express any opinion on merit and does not decide the right and legality of the occupation of the applicants. The applicants are, therefore, not justified in contending that they were accepted as tenants in the Civil proceeding. This Court is, therefore, of the view that looking to the sale confirmation order and the provisions contained in the sale deed, the Official Liquidator is justified in issuing the impugned notices dated 5.6.2006 for eviction, calling upon the applicants to vacate the said property from their unauthorized occupation and hand over the vacant and peaceful possession of the premises to the Official Liquidator.
31. In view of the above legal and factual position, none of the applicants deserve any relief in these applications. All these applications are, therefore, rejected. The Official Liquidator is hereby directed to implement notices issued by him on the applicants on 5.6.2006 and the applicants are also directed to hand over vacant and peaceful possession of the premises to the Official Liquidator forthwith. If the possession is not handed over by the applicants to the Official Liquidator, the Official Liquidator is hereby permitted to initiate action to forcibly remove them from the premises of the Company in liquidation with police assistance in order to proceed with the liquidation proceedings of the Company. The Official Liquidator is further permitted to engage the labour force if necessary for the purpose of implementing his notices and/or carrying out the direction issued by the Court in the present proceedings.
32. Subject to the aforesaid direction and observation all these applications are accordingly rejected.
33. At this stage Mr. S.H. Sanjanwala, learned Senior Counsel appearing with Mr. Dilip L. Kanojiya, learned advocate for the applicants prays for stay against operation and implementation of this order. Considering the ensuing Holi festival and intervening holidays, this order is stayed upto 28.3.2008.