Bombay High Court
Anil Devraj Sarad vs The New India Assurance Co. Ltd on 10 June, 2022
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
11 WPL-10264-2022.doc
BDP-SPS-TAC
BHARAT
DASHARATH
PANDIT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
BHARAT
DASHARATH
PANDIT
ORDINARY ORIGINAL CIVIL JURISDICTION
Date: 2022.07.12
11:10:55 +0530
WRIT PETITION (L) NO. 10264 OF 2022
Anil Devraj Sarad .... Petitioner.
V/s
The New India Assurance Co. Ltd. ..... Respondent.
----
Mr. Girish Godbole a/w Jayom Shah i/b Aagam Doshi & Co. for the
Petitioner.
Mr. V. Y. Sanglikar alongwith Vaishali Ugale for the Respondent.
----
CORAM: NITIN W. SAMBRE, J.
DATE: JUNE 10, 2022
P.C.:-
1] Impugned in the present Petition is an order passed in Case
No.001 and 001A of 2021 (New India Assurance Company Ltd. vs. Anil Devraj Sarad) by the Estate Officer of the Respondent - New India Assurance Company Ltd., whereby Application dated 18/11/2021 preferred by the Petitioner for staying eviction proceedings before the Estate Officer until decision of R.A.D. Suit No.85 of 2021 pending on the file of the Small Causes Court, Mumbai came to be rejected.
2] Facts necessary for deciding the present Petition are as under:-
3] Respondent - New India Assurance Company Ltd. issued a legal 1/5 11 WPL-10264-2022.doc notice terminating tenancy of the Petitioner in respect of suit premises and initiated Case No.001 and 001A of 2021 before the Estate Officer for eviction under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to for the sake of brevity as "Eviction Act") 4] Petitioner on 28/12/2020 initiated a Suit being R.A.E. Suit No.85 of 2021 against the Respondent herein, seeking declaration of tenancy rights in respect of the suit premises, which is pending adjudication before the Small Causes Court. In the said suit, prayer of the Petitioner for grant of temporary injunction came to be allowed on 30/7/2021 and Respondent - New India Assurance Company Ltd. is restrained from dispossessing the Petitioner/Plaintiff or interfering with the possession of the Plaintiff over the suit property till disposal of the suit.
5] In this backdrop, having regard to the nature of the prayer of the Petitioner in the Plaint in R.A.D. Suit No. 85 of 2021, Application for stay of the proceedings were taken out before the Estate Officer till decision of the aforesaid suit which is rejected vide order impugned dated 21/01/2022. As such, this Petition.
6] Contentions of Mr. Godbole, learned Counsel appearing for the Petitioner are, Petitioner as well as his father were inducted in the suit premises in 1956. The suit property was acquired by the Respondent in 1974. Respondent accepted the Petitioner as tenant of 2/5 11 WPL-10264-2022.doc the premises as reflected in the communication dated 12/5/1997. In the aforesaid backdrop, once the Petitioner was accepted as tenant, he would urge that provisions of Eviction Act are not attracted in the present case and that being so, Petitioner cannot be termed as unauthorized occupant. As such, he would urge that proceedings under the provisions of Eviction Act are without jurisdiction and not maintainable against the Petitioner. He would further urge that in the suit of the Petitioner for declaration and injunction that he is tenant and governed by the provisions of the Maharashtra Rent Control Act, already there operates temporary injunction and therefore Petitioner cannot be dispossessed till disposal of the aforesaid suit. He would further urge that if suit of the Petitioner is decreed and he is declared as tenant, Petitioner will suffer irreparable loss, if Estate Officer orders his eviction, as the proceedings before Estate Officer become without jurisdiction.
7] Drawing support from the judgment of the Apex Court in the matter of Suhas H. Pophale vs. Oriental Insurance Company Limited and its Estate Officer reported in (2014) 4 SCC 657, so also judgment of this Court in the matter of Dr. Preeti Bhatt vs. Central Bank of India in Writ Petition No. 1290 of 2021 decided on 20/7/2017, he would urge that provisions of Eviction Act are not attracted to the facts of the present case and as such order impugned passed by the Estate Officer is liable to be quashed and set aside, thereby allowing the prayer for staying the proceedings before the Estate Officer.
3/511 WPL-10264-2022.doc 8] While countering the aforesaid submissions, Mr. Sanglikar, learned Counsel appearing for the Respondent would urge that the issue canvassed about powers of the Estate Officer and maintainability of the eviction proceedings is no more res integra. He would draw support from the provisions of sub-clause (g) of Section 2 of the Eviction Act and urge that the Petitioner is rightly treated as an unauthorized occupant. He would claim that judgment in the matter of Suhas H. Pophale, cited supra is not applicable to the facts of the present case. According to him, in the matter of New India Assurance Company Ltd vs. Nusli Neville Wadia and Another reported in (2008) 3 SCC 279, Apex Court has already held that Eviction Act provides for speedy remedy and as such it is applicable to the case in hand. He has also drawn support from the judgment of this Court in the matter of Union of India and others vs. Bandra Gas Service, Mumbai and another reported in 2018(3) Mh.L.J 136 so as to claim that Eviction Act is applicable once the license is terminated as the occupation becomes unauthorized. He would claim that since the premises are covered within the definition of "public premises" under Eviction Act, proceedings are maintainable and has drawn support from the judgment of this Court in the matter of Pradeep Babubhai Chinal & Anr. vs. Sindhu Resettlement Corporation Ltd., Bombay & Ors reported in 2009(6) AIR Bom R 786. He has also relied on the judgment of the Apex Court in the matter of New India Assurance Co. Ltd. Vs. Nusli Neville Wadia & Anr reported in AIR 2008 SC 876.
9] I have appreciated the above submissions.
4/511 WPL-10264-2022.doc 10] Fact remains that even though Petitioner is accepted as a tenant as is claimed by Mr. Godbole, however tenancy was terminated on 25/9/2020. As a consequence, Petitioner becomes unauthorized occupant as the premises are covered within the meaning of "public premises". It cannot be held that Civil Court has jurisdiction in the present matter. Rather, it will be the Estate Officer who will have jurisdiction in view of the provisions of Eviction Act. Though Mr. Godbole has claimed that suit for declaration and injunction is pending in which temporary injunction operates, however mere institution of suit and operation of injunction will not tie hands of the Estate Officer under Eviction Act. Rather, perusal of injunction order reflects that there is no injunction ordered against the Estate Officer from proceeding ahead with eviction proceedings. It was always open for the Petitioner to seek such injunction which he has failed to. Apart from above, in view of the fact that Petitioner is recognized as tenant on 12/5/1997, claim of the Respondent that provisions of Eviction Act are applicable appears to be quite justified in the facts of the case.
11] In this backdrop, in my opinion, order of Estate Officer herein which is interlocutory in nature does not call for any interference in extraordinary jurisdiction. Petition as such fails and same stands dismissed.
( NITIN W. SAMBRE, J. ) 5/5