Bombay High Court
American Bureau Of Shipping vs The New India Assurance Company Ltd. And ... on 4 June, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
ppn 1 8.wpl-1210.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1210 OF 2019
American Bureau of Shopping .. Petitioner
Vs.
The New India Assurance
Company Ltd. & Anr. .. Respondents
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Mr.Firdosh Pooniwala a/w Mr.Karl Tamboly, Ms.Vijaya Bhat a/w
Ms.Avan Ardeshir i/by M/s.Mulla & Mulla & Craigie Blunt & Caroe for
the petitioner.
Mr.V.Y. Sanglikar a/w Ms.Vaishali Ugale for the respondent no.1.
---
CORAM : R.D. DHANUKA, J.
DATE : 4th June 2019 P.C.:
. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the orders dated 9 th March 2017 and 15th October 2018 annexed at Exhibits 'O' & 'U' passed by the Estate Officer rejecting the applications filed by the petitioner inter alia praying for dismissal of Case Nos.004 & 004A of 2004 filed by the respondent no.1 under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short "the said Act").
2. Both the applications filed by the petitioner (original opponent) inter alia praying for dismissal of Case Nos.004 and 004A of 2004. The first application was rejected by the learned Estate Officer on 9th March 2017. The said order was not impugned by the petitioner ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 ::: ppn 2 8.wpl-1210.19.doc immediately. The second order came to be passed on 15 th October 2018 on the second application inter alia praying for similar reliefs.
3. Mr.Pooniwala, learned counsel for the petitioner invited my attention to the averments made in the two applications by his client and the impugned orders passed by the Estate Officer. He also strongly placed reliance on the paragraph 64 of the judgment of the Hon'ble Supreme Court in the case of Suhas H. Pophale Vs. Oriental Insurance Company Limited & its Estate Officer, reported in (2014) 4 SCC 657 and the Judgment of Division Bench of this Court in the case of Dr.Preeti Bhatt Vs. Central Bank of India, reported in 2017 (6) Mh.L.J. 330 and would submit that in view of an admitted position that the tenancy of the petitioner was prior to the date of the said Act having come into force, in view of the law laid down by the Supreme Court in Pophale's case (supra), the Estate Officer did not have jurisdiction to proceed with two cases filed by the respondent no.1.
4. Learned counsel for the petitioner invited my attention to the notice of eviction issued by the respondent no.1, some part of oral evidence led by the respondent no.1 before the Estate Officer in support of the submission that it is an admitted position that the petitioner was a tenant of the respondent no.1 prior to the said Act having come into ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 ::: ppn 3 8.wpl-1210.19.doc force. He also placed reliance on the Lease Deed dated 9 th February 1956 in support of the submission that the petitioner was a tenant of the respondent no.1 prior to the said Act having come into force.
5. It is submitted that Division Bench of this Court in the case of Dr.Preeti Bhatt (supra) has held that decision in the case of Suhas Pophale's case (supra) is not per incuriam. Learned counsel for the petitioner placed reliance on the order passed by this Court on 4 th December 2017 in the case of Mucherji Nusserwanji Cama & Anr. Vs. The Board of Trustees of the Mumbai & Ors. in support of the submission that in view of the Hon'ble Supreme Court referring the issue of jurisdiction to larger bench, this Court has stayed the original proceedings before the Estate Officer and thus this Court shall direct the Estate Officer to decide the issue of jurisdiction first.
6. The next submission of the learned counsel is that if issue of jurisdiction along with all other issues including the claims of the petitioner made before the Estate Officer would be considered at the time of final order and if the petitioner is required to file composite appeal, the petitioner may be asked to deposit of amount against the order of compensation, as may be awarded before the Estate Officer which may cause serious prejudice to the petitioner. ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 :::
ppn 4 8.wpl-1210.19.doc
7. Mr.Sanglikar, learned counsel for the respondent no.1, on the other hand, invited my attention to the order passed by the Hon'ble Supreme Court on 28th April 2014 in Special Leave to Appeal (Civil) No.36789 of 2013 arising out of the judgment and order dated 12 th July 2013 passed by this Court in Writ Petition No.2779 of 2013. In the said judgment, the Hon'ble Supreme Court observed that the proceeding before the Estate Officer being summary in nature, the case must go on a day-to-day basis and directed the Estate Officer to pass final orders as expeditiously as possible but not beyond the period of six months. It is submitted by the learned counsel that the evidence of the respondent no.1 is closed before the Estate Officer. The petitioner has not filed affidavit-in-reply though directed by the Estate Officer. It is submitted that in view of the order passed by the Hon'ble Supreme Court directing the Estate Officer to proceed with the matter on day-to- day basis, learned Estate Officer has rightly rejected both the applications on the ground that issue of jurisdiction would be considered along with other issues at the time of passing final order.
8. In so far as the issue as to whether the judgment of the Supreme Court in the Pophale' case (supra) is per incuriam is concerned or that the said judgment is contrary to the decision of the Constitution ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 ::: ppn 5 8.wpl-1210.19.doc Bench rendered in the case of Ashoka Marketing Vs. Pujab National Bank - 1990 (4) SCC 406, learned counsel invited my attention to the order passed by the Supreme Court referring to the said issue to the larger bench. He submits that in the order of reference passed by the Supreme Court, it is clearly observed by the Supreme Court that in fact ratio decided by two-Judges Bench of the Supreme Court in the case of Suhas Pophale's case (supra) is contrary to the decision of the Constitution Bench rendered in the case of Ashoka Marketing (supra) and thus these matters need to be heard by a three-Judge Bench. He submits that the said issue is still pending.
9. Be that as it may, issue as to whether learned Estate Officer has jurisdiction to decide two cases filed by the respondent no.1 is a mixed question of fact and law and has to be decided at the time final order on the basis of evidence to be led by both the parties. It is not in dispute that issue decided by the Supreme Court in the Pophale's case (supra) is referred to larger bench by the Hon'ble Supreme Court by an order 18th March 2015. It is also not in dispute that the Hon'ble Supreme Court has directed the Estate Officer to decide the cases filed by the respondent no.1 by observing that the proceedings before the Estate Officer being summary in nature, the case must go on a day-to- ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 :::
ppn 6 8.wpl-1210.19.doc day basis. The Hon'ble Supreme Court has further directed to pass final order as expeditiously as possible but not beyond the period of six months from the date of the said order i.e. 28th April 2014.
10. It is also not in dispute that evidence of the petitioner is not concluded. The respondent no.1 has already concluded its evidence. The petitioner is required to file affidavit of evidence but has not filed the same though directed by the Estate Officer. Though first application for seeking similar reliefs was rejected by the Estate Officer as far back as on 9th March 2017, the petitioner has challenged the said order by filing this petition in this Court in the month of April 2019 along with second order which was also for similar reliefs. In my view, since first application was already rejected by the Estate Officer, the petitioner could not have filed second application for similar relief. There was no change in circumstances.
11. In so far as the issue as to whether there is any inconsistency between the views taken by the Supreme Court in the Suhas Pophale's case (supra) and the views taken by the Supreme Court in the Ashoka Marketing's case (supra) is concerned, the order of reference clearly indicates that there is inconsistency between these two judgments and thus the matter was required to be referred to larger ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 ::: ppn 7 8.wpl-1210.19.doc bench. In my view, learned counsel for the respondent no.1 is right in his submission that issue of jurisdiction in this case is mixed question of fact and law and thus no finding on the issue of jurisdiction was rightly rendered by the Estate Officer at this stage.
12. In so far as the evidence already led by the respondent no.1 and some portion of evidence about tenancy of the petitioner is concerned, learned Estate Officer can consider the entire evidence after the petitioner's evidence is concluded and then can take a view in the matter. This Court thus need not make any comment on the alleged admission by the respondent no.1 in the notice of eviction or on the oral evidence already led so far before the Estate Officer.
13. In so far as the judgments of the Hon'ble Supreme Court in the case of Srinivasa Rice Mills & Ors. Vs. ESI Corporation reported in (2007 ) 1 SCC 705 and in the case of Arun Kumar & Ors. Vs. Union of India & Ors., reported in (2007) 1 SCC 732 in support of the submission that issue of jurisdiction as already raised is bound to be decided by the Estate Officer is concerned, a perusal of the impugned orders clearly indicates that the Estate Officer has not rendered any finding at this stage on the issue of jurisdiction but has only postponed the adjudication of that issue along with other issues. These two ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 ::: ppn 8 8.wpl-1210.19.doc judgments rendered by the Hon'ble Supreme Court thus would not assist the case of the petitioner.
14. In view of the fact that the Hon'ble Supreme Court has directed the Estate Officer to proceed with the matter on a day-to-day basis, I am not inclined to issue any directions to the Estate Officer to decide the said issue of jurisdiction first on the evidence or on the documents filed in the matter. The Estate Officer shall decide the issue of jurisdiction along with other issues expeditiously and shall not grant adjournment to any of the parties on any unnecessary ground. Any delay on the part of the parties or the learned Estate Officer would amount to a contempt against the directions issued by the Supreme Court by an order dated 28th April 2014. Both the parties are accordingly directed to co-operate with each other and with the learned Estate Officer to proceed and decide the aforesaid two cases on day-to-day basis. No interference is warranted in the impugned orders passed by the Estate Officer. All contentions of the parties on issue of jurisdiction are kept open.
15. The petitioner is directed to file affidavit of evidence of witnesses and copy to be served upon the advocate for the respondent no.1 and shall make the witnesses available for the purpose of cross- ::: Uploaded on - 12/06/2019 ::: Downloaded on - 14/07/2019 07:14:41 :::
ppn 9 8.wpl-1210.19.doc examination before the Estate Officer. Affidavit of evidence shall be filed within three weeks from the date of communication of this order before the Estate Officer. It is made clear that no further extension of time would be granted. Issue of jurisdiction shall be decided by the Estate Officer along with the other issues on its own merits. This Court has not expressed any views on merits of the matter.
16. I am not inclined to accept the submission of the learned counsel for the petitioner that issue of damages which is one of the prayers in the two cases filed by the respondent no.1 shall be directed to be decided after four weeks from the decision on the issue of jurisdiction. The said direction cannot be issued in this order as suggested by the learned counsel for the petitioner. Writ petition is dismissed accordingly. No order as to costs.
R.D. DHANUKA, J.
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