IMPORTANT POINT
If for the purpose of deciding the dispute of unauthorised and illegal activity affecting maintenance and preservation of the property in custodia legis it becomes necessary to determine any right claimed under a statute or flowing from some action inter parte, it is desirable that the Court would refrain from such determination in the summary proceeding initiated before it on the complaint of the receiver.

Headnote:RECEIVER-Appointment of-Rights and obligations of third parties in respect of properties-Allegation of unauthorised and illegal activities of a tenant affecting maintenance and preservation of property in custodia legis-Tenant pleading a specific case that structures in question were there before his induction as a tenant-Supporting affidavits filed-Tenant contended that landlords and receiver were fully aware of existence of structures long back-Tenant also claimed right to operate in a portion of tenanted premises a permit room for serving liquor to customers of hotel after obtaining licence-Such contentions should not be decided in a summary proceeding to dispose of reports of receiver-Impugned order of demolition of alleged unauthorised constructions is not sustainable. (See also paras 17 to 20)
Held : In the facts of the case, however, it appears to us that the appellant tenant has come out with a specific case that the structures in question were there before his induction as a tenant. In support of such contention, a number of supporting affidavits have been filed. The appellant has also contended that the landlords and the receiver were fully aware of the existence of the structures long back, and according to the appellant, at one point of time an agreement was reached between the landlords and the appellant for payment of a sum of Rs. 120/- for such construction covering about 60 sq. ft. besides further amount on account of additional premium to be paid by the landlords and an Advocate s letter was sent to the receiver apprising the receiver of such understanding between the parties. The appellant has also claimed right to operate in a portion of the tenanted premises a permit room for serving liquor to the customers of the hotel after obtaining licence from the statutory authority on the footing that such right is incidental and ancillary to his right to operate an eating house or restaurant. Such contentions should not be decided in a summary proceeding to dispose of reports of the receiver or a complaint by a party to the suit about alleged illegal activities by a tenant in a property in suit. Any summary disposal of such dispute on the claim of some legal right by the tenant is likely to seriously affect the tenant, because once some constructions in the tenanted premises are removed on a finding that such constructions were made illegally and unauthorisedly by the tenant, the tenant not only suffers the said direction of removal at presenti but becomes liable to be evicted from the suit premises for such unauthorised construction by him. Similarly, the finding against the tenant on the question of running a permit room cannot but seriously affect the tenant s right to operate a permit room and is also likely to expose him to the risk of being evicted from the suit premises. (Paras 21 & 22)

JUDGMENT

G.N. Ray, J.-Leave granted.

2. Heard learned counsel for the parties. The order dated February 23, 1996 passed by the Division Bench of the Bombay High Court in Appeal (Lodged) No. 3 of 1996 in Suit No. 1010 of 1973 in the Ordinary Original Civil Jurisdiction arising out of the Order dated December 6, 1995 passed by the learned Single Judge on the reports of the receiver appointed by the Court in the said Suit No. 1010 of 1973 in so far as the same affects the appellant, Mr. Anthony C. Leo. is the subject matter of challenge in this appeal.

3. Nandlal Balkrishnan Khanna and other partners of Khanna Construction House obtained a lease of Plot No. 44 of Scheme No. 58, Worli Estate, Bombay from the Municipal Corporation of Greater Bombay. The said partners constructed a building on the said plot known as Khanna Construction House. The appellant claims tenancy in respect of a room in the said premises under the said partners where he is running a business named and styled as Flore Chinese Restaurant. In view of disputes arising between the partners of M/s Khanna Construction House, one of the partners filed a suit in the ordinary original civil jurisdiction of the Bombay High Court being Suit No. 1010 of 1973 against other partners for dissolution of the firm and distribution of assets including the building Khanna Construction House. The appellant is not a party in the said suit. Some time in 1973, the Bombay High Court appointed a Receiver in the said suit in respect of the assets of the partnership firm including the said building Khanna Construction House.

4. The appellant s case is that the landlords of the building granted tenancy to Abdul Rehman Noor Monammad and others in respect of ground floor premises where the said tenants started a restaurant in the name of Flora Restaurant. Same time in 1965, the said business together with the goodwill and benefit of tenancy rights was taken over by J.S. Khanna and S.G. Khanna. In April, 1967, the said Shri J.S. Khanna and S.G. Khanna assigned the said business as a going concern together with goodwill and benefit of tenancy rights to Father S. Perreira. On April 10, 1970. Father Perreira transferred the said restaurant business to the appellant together with the goodwill and benefit, of tenancy. After taking over the said business, the appellant changed the name of the business to Flora Chinese Restaurant. It is the specific case of the appellant that when he got assignment of tenancy and business of the restaurant, the tenanted premises had already in it lofts and two stand like boxes attached on the outer wall for storing gas cylinders and air conditioning units.

5. The appellant has contended that in 1979, the landlords made a demand for additional compensation for the box type stands affixed on the outer wall of the premises for storing gas cylinders and air conditioning units. The landlord also raised same dispute regarding the chimney duct in the restaurant premises. According to the appellant, a meeting was held between the appellant and the landlords at the instance of court receiver, and the landlords demanded extra compensation at the rate of Rs. 2/- per square foot of the area where the said two stands for housing gas cylinders and air conditioning units were installed. On measurement, the said area was found to be 60 sq.ft. and the appellant had agreed to pay additional amount of Rs. 120/- per month. The landlords also insisted that the appellant would bear additional insurance premium and the appellant had agreed to such demand. The appellant has contended that under the Fire Brigade Rules, the gas cylinders cannot be stored inside the premises but such gas cylinders are required to be stored outside the premises. The appellant further contends that by letter dated June 25, 1979, the learned Advocate of the appellant had informed the court receiver about such agreement between the landlords and the appellant. The appellant has also contended that in a meeting betw

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