2012 Supreme(Bom) 1964

High Court of Judicature at Bombay
MOHIT S. SHAH & N.M. JAMDAR, JJ.
Nandini J. Shah & Another
Versus
Life Insurance Corporation of India & Others
Letters Patent Appeal No.181 of 2012 In Writ Petition No.4337 of 2012
Decided on : 12-10-2012

Headnote:Letters Patent (Bombay) - Clause 15 - Public Premises (Eviction of Unauthorised Occupants) Act, 1971, Section 5 - Letters Patent Appeal.

       Letters Patent Appeal against order of Single Judge, confirming order of eviction passed against appellants under P.P. Act, is maintainable. - It is true that the petitions arising out of the order passed under the Public Premises Act were being heard by the Division Bench. This was being done due to observation of the Division Bench of the Court in the case of Nusli Neville Wadia v. New India Assurance Co. Ltd. and another, 2010 (4) Bom CR 807 : 2010 All MR 851. However by an order dated 15th November, 2011, another Division Bench of the Court expressed doubt about the correctness of the observation made in the case of Nusli Neville Wadia, 2010 (5) All MR 851 and referred the issue as to whether the petitions arising out of the orders passed under the Public Premises Act should be heard by the Division Bench or Single Judge, to the Full Bench for consideration. The Full Bench in the case of Prakash Securities Pvt. Ltd. v. LIC of India, 2012 (7) All MR 771 found that clause 3 of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules 1960 was wide enough to include orders passed by any quasi -judicial authority under any enactment, even if such explanation is not covered by Clause 1, 2, 4 to 43 of Rule 18. The Full Bench found that the order passed by quasi -judicial authority under the Public Premises Act is also covered by Rule 18(3) so as to indicate that the petitions under Articles 226 and 227 of the Constitution of India challenging such orders are to be heard and decided by the Single Judge. Reference was accordingly disposed of by the Full Bench by its judgment dated 26th April, 2012. The Full Bench held that the Appellate Side Rules as they stand, provide that the petitions challenging the orders passed under the Public Premises Act are required to be heard by the Single Judge and therefore the observations made in the case of Nusli Neville Wadia, 2010 (5) All MR 851, were not correct. The petitions relating to orders passed under Public Premises Act were being entertained by the Division Bench when the rules provided that they should be entertained by the Single Judge. Therefore there was no conscious decision to remove the petitions arising from orders passed under the Public Premises, from Division Bench and to place them before Single Judge. In fact Full Bench found that these petitions were being wrongly entertained by the Division Bench.

       In the judgment of the Full Bench there is no indication that Letters Patent Appeal arising out of the orders passed by the Single Judge in proceedings under the Public Premises Act will not be maintainable. If Letters Patent Appeals are otherwise maintainable, judgment of the Full Bench does not take away that right in respect of petitions challenging the orders passed under Public Premises Act. Therefore the argument advanced by the counsel on maintainability of the appeal on this ground cannot be accepted. Maintainability was not contested on any other ground. In the present case, the petitioner has invoked both Articles 226 and 227 of the Constitution of India. The Judge also has referred to the said Articles in the impugned order. Furthermore, the respondent-Corporation is itself amenable to writ jurisdiction of the Court, being a public corporation. There is therefore no substance in the preliminary objection raised by the counsel for the respondent that the appeal is not maintainable and that it should be dismissed at the threshhold without looking at the merits of the matter.

       Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 5 - Eviction on ground of sub-letting.

       Where tenant not relinquished control of premises and also not parted with possession to stranger therefore order of eviction passed on ground of sub-letting liable to be set aside. - In the present case the tenant-Vilasben was director in the company along with her daughter, son-in-law and grand-son. Looking at the composition of the company it cannot be said that she relinquished control of the premises or parted with possession to a stranger. The directors of the companies were her immediate family members. The premises were in occupation of the family since the time of their great grand-father and continued to be within the family even after formation of these three companies. The family business/profession was relating to tax and financial services and continued to be so. In a changing commercial scenario she found formation of partnership firm and private limited companies was more effective way of conducting the tax and financial services. This was nothing but extension of existing business activity to remain in tune with the changing financial environment. Thus by employing the principle of lifting corporate veil and looking at the true nature of the Companies we find that Vilasben had not relinquished the control of premises by creating these three companies and there was no subletting.

       In the present case, the tenanted premises are in occupation of the appellants for several decades. All that Vilasben had done was to create three Companies with her son, daughter-in-law and grand-son. Eviction of the appellants from the premises in the circumstances will be unjust. Once Court come to the conclusion that there was no subletting in the first place, there is no question of appellants paying any amount of compensation as ordered by the impugned orders.