Tenancy rights under a Will cannot override specific contractual terms prohibiting assignment without consent, rendering unauthorized occupation invalid under the Public Premises Act.

JUDGMENT :

Gauri Godse, J.

BASIC FACTS:

1. This civil revision application is filed by the original applicant to challenge the judgment and order passed by the City Civil Court allowing the appeal of respondent no. 1 (“the occupant”). By the impugned order, the occupant’s appeal is allowed, thereby setting aside the eviction order passed by the learned Estate Officer. Respondent Nos. 2 to 4 are the executors of the Will of the authorised tenant. The name of Respondent No. 2 is deleted vide order dated 1^st February 2010. The occupant claims to have been occupying the premises along with the authorised tenant. It is the applicant’s contention that after the death of the authorised tenant, the occupant is unauthorisedly occupying the premises. The premises in question is a flat admeasuring around 2000 square feet and a garage (‘subject premises’).

2. The subject premises is owned by the Life Insurance Corporation of India (“applicant”). The original recorded tenant of the subject premises was one Ms. Tehmina Bharucha, and after her death, the tenancy was transferred in the name of her husband Dr. Darasahah Bharucha. The last recorded tenant, i.e. Dr. Bharucha expired on 11^th September 1994. Dr. Bharucha had executed his Will and appointed respondent nos. 2 to 4 as administrators of the Will. The occupant claims to be Dr Bharucha’s niece and to have been residing at the subject premises along with him. She therefore claims that under the Will, Dr Bharucha bequeathed the subject premises to her. Hence, she claims to have become the tenant of the subject premises.

3. After the death of Dr Bharucha, the applicant issued the termination notice dated 25^th January 1997 addressed to the heirs and legal representatives of Dr Bharucha. The notice was also addressed to the occupant, calling upon her to vacate and hand over the subject premises. The Applicant filed an application under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (‘said Act’), for eviction and damages against the respondents. The Estate Officer issued a show cause notice under Section 4(2) of the said Act, and another notice under Section 7 of the said Act for recovery of damages with interest.

4. After the receipt of the show cause notice, the occupant filed her written statement before the Estate Officer. Respondent nos. 2, 3 and 4 submitted a letter and informed the Estate Officer that they were wrongly impleaded in the proceedings and that they were bound by the Will and had administered the bequest. Issues were framed by the Estate Officer, and the parties led their respective evidence. The Estate Officer passed an order of eviction under Section 5(1) of the said Act and also directed recovery of damages with interest under Section 7(2) (2A). The Estate Officer held that the occupant is unauthorisedly occupying the subject premises and she was never recognised as a tenant by the applicant.

5. Being aggrieved by the decision of the Estate Officer, the occupant preferred an appeal before the City Civil Court. By the impugned order, the appeal is allowed, and the Estate Officer’s decision is set aside. Hence, this civil revision application by the original applicant.

SUBMISSIONS ON BEHALF OF THE APPLICANT:

6. Learned counsel for the applicant submits that, as per the terms and conditions of the tenancy, the agreement executed with Dr Bharucha, nobody was residing along with him when the tenancy was created in his favour. Learned counsel for the applicant relied upon various letters produced on record. By letter dated 25^th September 1985, Dr Bharucha, through his advocate, had informed the applicant that, except for him, nobody else was residing with him. Dr Bharucha issued another letter dated 13^th May 1985 stating that one Smt. Piroja N. Panthakhi had been staying in the subject premises since 1983 as a housekeeper. The letter further clarified that there was no relation between Dr Bharucha and Smt. Piroja. On the query made by the applicant with reference to