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2011 Supreme(Bom) 354
High Court of Judicature at Bombay
V.M. KANADE
Mohan Pandurang Borade since deceased through his Lrs.
Versus
Union of India & Others
SECOND APPEAL NO.435 OF 1989 WITH CIVIL APPLICATION NOS.262 OF 2002, 296/2002, 19/2004 IN SECOND APPEAL NO.435 OF 1989 WITH CIVIL APPLICATION NOS.1449 OF 2007 WITH CIVIL APPLICATION NO.289 OF 2008 IN SECOND APPEAL NO.435 OF 1989 WITH CIVIL APPLICATION NO.106 OF 2010 IN SECOND APPEAL NO.435 OF 1989 ALONGWITH SECOND APPEAL NO.448 OF 1989 WITH CIVIL APPLICATION NOS.261/2002, 18/2004 IN SECOND APPEAL NO.448 OF 1989 WITH CIVIL APPLICATION NO 105 OF 2010 IN SECOND APPEAL NO.448 OF 1989
Decided on : 18-03-2011
For the Appellant:R.M. Pethe, Dr. A.K. Barthakur with P.T. Thakur, Kamal Saigal Constituted Attorney of Ravi C. Saigal Advocates.
For the Respondents:R1, S.R. Rajguru with Ashok Verma, Advocates, V.S. Mhaispurkar, AGP, R2 & R3, D.P. Adsule, AGP, R4, R5, R6, Vaidehi Mhaispurkar, AGP.
The judgment establishes that the property vested in the Custodian and then in the Union of India, extinguishing the plaintiff's leasehold rights, and that the Administration of Evacuee Property Act, 1950 overrides the provisions of Tenancy Law.
Headnote:
Evacuee Property - Tenancy Rights - Sir Currimbhoy Ebrahim Baronetcy Act, 1913, Bombay Act No.14 of 1953, Displaced Persons (Compensation and Rehabilitation) Act, 1954 - The judgment discusses the applicability of the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 as amended by Bombay Act No.14 of 1953, and the Displaced Persons (Compensation and Rehabilitation) Act, 1954 in the context of the plaintiff's claim for tenancy rights over the suit property. The court relied on the judgments of the Apex Court and Division Bench of the High Court to conclude that the property vested in the Custodian and then in the Union of India, extinguishing the plaintiff's leasehold rights. The court also held that the Administration of Evacuee Property Act, 1950 overrides the provisions of Tenancy Law, and the notice issued under section 19(1) and (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is directory and not mandatory.
Fact of the Case:
The plaintiff filed a suit seeking declaration as a tenant of the suit property, permanent injunction, and restoration of possession. The property was declared as evacuee property and vested in the Custodian of Evacuee Property. The trial court refused to restore possession of a portion of the property, and the appeal against it was dismissed. The plaintiff's claim for tenancy rights was challenged based on the applicability of relevant acts.
Finding of the Court:
The court found that the property vested in the Custodian and then in the Union of India, extinguishing the plaintiff's leasehold rights. It also held that the Administration of Evacuee Property Act, 1950 overrides the provisions of Tenancy Law, and the notice issued under section 19(1) and (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is directory and not mandatory.
Issues: The issues revolved around the plaintiff's claim for tenancy rights over the suit property in light of the applicability of the Sir Currimbhoy Ebrahim Baronetcy Act, 1913, Bombay Act No.14 of 1953, and the Displaced Persons (Compensation and Rehabilitation) Act, 1954.
Ratio Decidendi: The court relied on the judgments of the Apex Court and Division Bench of the High Court to conclude that the property vested in the Custodian and then in the Union of India, extinguishing the plaintiff's leasehold rights. It also held that the Administration of Evacuee Property Act, 1950 overrides the provisions of Tenancy Law, and the notice issued under section 19(1) and (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is directory and not mandatory.
Final Decision: The Second Appeal No.435 of 1989 and No.448 of 1989 were dismissed and allowed respectively, based on the court's findings regarding the plaintiff's leasehold rights and the applicability of relevant acts.
Appellant in Second Appeal No.435 of 1989 is the original Plaintiff. He filed Suit No.1236 of 1984 against Union of India and five others seeking the following reliefs:-
(i) For a declaration that he is a tenant of the suit property.
(ii) For permanent injunction restraining the Defendants from disturbing peaceful possession over the suit property.
(iii) For restoration of possession of property noted in para 1-A to 1-M of the Plaint.
2. The Trial Court by its judgment and order dated 25/08/1986 partly decreed the suit. However, it refused to restore possession of the portion described in para 1-A to 1-M of the plaint. The appeal which was filed against the said judgment and order was dismissed by order dated 16/08/1989.
3. Brief facts are as under:-
4. The suit property was originally owned by Sir Currimbhoy Ebrahim Baronetcy. Thereafter, by virtue of the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 as amended by Bombay Act No.14 of 1953, his property was settled upon the Trust. Trustees of the said Trust leased out the property to the Plaintiff on monthly rent of Rs.613.30 for five years. Thereafter, the suit property, according to the Plaintiff, vested in Defendant No.4 -the Official Trustee, Maharashtra State and the lease was renewed for five years. Thereafter, on 11/5/1976, supplementary agreement was executed between the parties increasing rent and by fresh lease dated 8/5/1978 which was executed for another five years, the property excluded the open space surrounding the said building 'Mobos Hotel' together with outhouses, servants' quarters and garages.
5. In the meantime, the Apex Court by its judgment in Sir Fazalbhoy Currimbhoy and others vs. Official Trustee of Maharashtra and Others (1979) 3 SCC 189 held that the said entire property was declared to be evacuee property and, as such, it vested in the Custodian of Evacuee Property.
6. By Notification published under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the said property was vested in the Central Government free from all encumbrances including any leases.
7. The second appeal was admitted by this Court on 10/8/1989 on the substantial questions of law i.e ground Nos.2, 3 and 4 which read as under:-
"2. Whether both the lower Courts insofar as refusing to restore possession of the portion of the suit property taken over illegally by the Respondents original Defendants have mis-construed the judgment and order dated 20th February, 1986 passed by this Hon'ble Court in Writ Petition No.4958 of 1985?"
"3. Whether both the lower Courts insofar as refusing to restore possession of the portion of he suit property taken over illegally by the Respondents original Defendants have failed to appreciate that Writ Petition No.4958 of 1985 decided by this Hon'ble Court on 20th February 1986 was restricted only to interim injunction proceedings in Regular Civil Suit No.1236 of 1984 filed by the Appellant?"
"4. Whether both the lower Courts insofar as refusing to restore possession of the portion of the suit property taken over illegally by the Respondents-original Defendants have failed to appreciate that by order dated 20th February 1986 in Writ Petition No.4958 of 1985 this Hon'ble Court was concerned only with the interim injunction proceeding pending Regular Civil Suit No.1236 of 1984 and, therefore, in that context had observed that the Appellant had no right for injunction in respect of portion of the property which was taken over by the Respondents original Defendants and further the substantive suit No.R.C.S. 1236 of 1984 wherein the Appellant has specifically prayed for restoration of the possession of the portion of the suit property illegally taken over by the Respondents original Defendants?"
8. The learned Counsel appearing on behalf of the appellant/plaintiff submitted that during the pendency of the suit, interim order was granted by the Trial Court in respect of rest of the property. However, so far as pr
