Full Judgment Text
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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.