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        REPORTABLE

       IN THE SUPREME COURT OF INDIA        CIVIL APPELLATE JURISDICTION

      CIVIL APPEAL NOS. 3147-3149 OF 2016 (Arising out of S.L.P.(C) Nos.29282-29284 of 2008)

Jabal C. Lashkari & Ors.                            ...Appellant (s)

Versus

Official Liquidator & Ors.        ...Respondent (s)

WITH  

Civil Appeal No. 3153 of 2016 (Arising out of SLP(C) No. 29952 of 2008)

Civil Appeal No. 3157 of 2016 (Arising out of SLP(C) No. 29632 of 2008)

Civil Appeal No.3158 of 2016 (Arising out of SLP(C) No. 940 of 2009)

Civil Appeal No. 3159 of 2016 (Arising out of SLP(C) No. 1866 of 2009)

Civil Appeal No. 3160 of 2016 (Arising out of SLP(C) No. 2583 of 2009)

Civil Appeal No. 3161 of 2016 (Arising out of SLP(C) No. 5880 of 2009)

Civil Appeal No.3162_ of 2016 (Arising out of SLP(C) No. 7864 of 2009)

Civil Appeal No. 3163 of 2016 (Arising out of SLP(C) No. 12835 of 2009)

Civil Appeal No. 3164 of 2016 (Arising out of SLP(C) No. 12919 of 2009)

Civil Appeal No. 3165 of 2016 (Arising out of SLP(C) No. 14276 of 2009)

Civil Appeal No. 3166 of 2016 (Arising out of SLP(C) No. 14316 of 2009)

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Civil Appeal No. 3167 of 2016 (Arising out of SLP(C) No. 21949 of 2009)

Civil Appeal No.3168 of 2016 (Arising out of SLP(C) No. 31354 of 2009) Civil Appeal Nos.3169-3170 of 2016

(Arising out of SLP(C) Nos. 32444-32445 of 2010) Civil Appeal No.3171 of 2016

(Arising out of SLP(C) No. 31663 of 2011) Civil Appeal No. 3172 of 2016

(Arising out of SLP(C) No. 4816 of 2012)

    J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted in each of the Special Leave Petitions.

2. The facts arising in the Civil Appeals arising from SLP(C)

Nos. 29282-29284 of 2008, which is being taken as the lead

case, may be noticed at the outset.  

3. One  Durgaprasad  Lashkari  (predecessor  of  the

appellants) had leased out land admeasuring 35,772 sq. mtrs.

in favour  of one Bechardas Spinning and Weaving Mills Ltd.

(subsequently known as Prasad Mills Ltd.) for a period of 199

years by a lease deed dated 10.12.1916.  A secured creditor of

Prasad  Mills  Ltd.  had  in  the  year  1984  filed  a  company

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petition seeking the winding up of the aforesaid Prasad Mills

Ltd.   While  the  company petition  was pending some of  the

legal  heirs  of  Durgaprasad Lashkari  had filed a  suit  in  the

Small Causes Court seeking permanent injunction against the

sale  of  assets  of  company more particularly  the  sale  of  the

leased property.  

4. An  order  dated  5.5.1989  was  passed  by  the  learned

Company  Judge  of  the  Gujarat  High  Court  directing  the

winding up of  Prasad Mills  Ltd. and the appointment of  an

official liquidator. The official liquidator was directed to take

charge and possession of all  the assets of the company. An

application was filed by another heir of Durgaprasad Lashkari

in  the  winding  up  petition  seeking  direction  to  further

prosecute the suit pending before the Small Causes Court. The

learned  Company  Judge  by  order  dated  24.2.1995  ordered

that the suit may be withdrawn and instead directions may be

sought  from  the  Company  Court  for  return  of  the  leased

property.  Pursuant  thereto  a  Company  Application  (C.A.

No.462 of 1999) was filed by some of the heirs of Durgaprasad

Lashkari for return of the leased property and also for orders

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restraining the official liquidator from selling/transferring the

leased  property.  While  the  return  of  the  leased  land  was

sought on the twin grounds that in view of the winding up

order  the  Company  no  longer  required  the  land  and

furthermore default in payment of rent had occurred, for the

second relief  sought it  was urged that the official  liquidator

was not authorised to transfer/alienate the leased property in

view of the provisions of the Bombay Rents, Hotel and Lodging

House Rates Control Act, 1947, as it then existed (hereinafter

referred  to  as  ‘the  Bombay  Rent  Act’).   While  the  above

Company  Application  was  pending  the  building,

superstructure, plant and machinery of the company was sold

in  a  public  auction.  It  appears  that  on  6.2.2004  an

advertisement was issued by the official liquidator for the sale

of the leased property. As against the aforesaid advertisement,

the appellant had filed Company Application No.33 of 2004 for

a declaration that the official liquidator had no right to sell the

leased property.  The grounds urged were principally  on the

basis of lack of any such empowerment in the lease agreement

and in view of the bar/restriction contained in Section 15 of

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the Bombay Rent Act. Another Company Application i.e. C.A.

No.34 of 2004 was filed seeking permission from the Company

Court to file a suit before the appropriate court for eviction of

the official liquidator from the leased property.  Eviction of the

official liquidator was claimed, inter alia, on the ground that –

(i) the  occupant  Company  i.e.  Prasad  Mills  had  no

document in its favour entitling it to be in possession of

the demised land;  

(ii) admitted non payment of rent for a period of over 15

years  rendering  the  company  and  now  the  official

liquidator  liable  to  eviction  under  Section  12  of  the

Bombay Rent Act;

(iii)  admitted non user of the land for a period of over 6

years attracting Section 13(1)(k) of the Rent Act;  

(iv) sub-letting in favour of the company, Prasad Mills, in

violation of Section 13(1)(e) of the Rent Act.   

5. The learned Company Judge by a very elaborate order

dated 13.10.2004 rejected all the three company applications.

Aggrieved, the appellant and other legal heirs of Durgaprasad

Lashkari  filed  three  separate  appeals  before  the  Division

Bench of the High Court. The High Court by a common order

dated 17.10.2008 dismissed all the appeals on grounds and

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reasons that will be noticed shortly. It is against the aforesaid

common  order  dated  17.10.2008  that  the  present  appeals

have been filed.  

6. We have heard Shri Mihir Thakur learned senior counsel

appearing  for  the  appellants  in  civil  appeal  arising  out  of

SLP(C)  No.  29282-84/2008;  Shri  P.S.  Narasimha,  learned

Additional  Solicitor  General  appearing  for  the  official

liquidator;  Shri  Tushar  Mehta,  learned  Additional  Solicitor

General and Shri S.N. Shlute learned senior counsel appearing

for the Gujarat State Textile Corporation.  

7. We have also heard learned counsels appearing for the

parties in all the other cases.   

8. At the very outset the relevant provisions of the Bombay

Rent  Act,  (hereinafter  referred  to  as  the  ‘Rent  Act’)  as

applicable to the State of  Gujarat and the provisions of  the

lease agreement dated 10.12.1916 may be noticed -

“12. -  No  ejectment  ordinarily  to  be  made  if tenant  pays  or  is  ready  and  willing  to  pay standard rent and permitted increases

(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or  is  ready  and  willing  to  pay,  the  amount  of  the standard  rent  and  permitted  increases,  if  any,  and

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observes  and  performs  the  other  conditions  of  the tenancy,  in  so  far  as  they  are  consistent  with  the provisions of this Act.

1[(1A) Where by reason of riot or violence of a mob any material  part  of  the premises in a disturbed area is wholly  destroyed  or  rendered  substantially  and permanently unfit for the purpose for which it was let, the landlord shall not be entitled to;--

(a) the standard rent and permitted increases due for the premises,

(b) recover possession of such premises merely oh the ground of non payment of standard rent and permitted increases  due,  during  the  period  in  which  such premises remain so destroyed or unfit.]

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of  the standard rent or permitted increases due, until the expiration, of one month next after notice in  writing  of  the  demand  of  the  standard  rent  or permitted, increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882).

(3)  (a)  Where the rent is  payable by the month, and there is no dispute regarding the amount of standard rent or permitted increases,  if  such rent or increases are in arrears for a period of six month's or more and the tenant neglects to make payment thereof until the expiration  of  the  period  of  one  month,  after  notice referred to  in  sub-section  (2),  the  Court  may pass a decree  for  eviction  in  any  such  suit  for  recovery  of possession.

(b)  In any other case,  no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or oil or before such" other date as the Court may  fix,  the  tenant  pays  or  tenders  in  Court  the standard rent and permitted increases then due.3[and thereafter,--

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(2) Any tenant or person who in contravention of the provision  of  sub-section  (1)  receives  any  sum  or consideration  shall,  on  conviction,  be  punished  with imprisonment  for  a  term  which  may  extend  to  six months  and shall  also  be  punished with  fine  which shall  not  be  less  than  the  sum of  the  value  of  the consideration received by him.”

The terms of the lease deed are as follows :

“............;And whereas the above mentioned three pieces of land are owned by the First Party, and the Second Party has rented the same from First Party;

And whereas the rent is fixed at Rs.3501-00 - Rs. three thousand five hundred and one. for one year of  12  months  to  be  paid  to  First  Party,  by  the Second Party; as rent on the following conditions :  

(1)  The said rent  will  be  given to  First  Party,  by Second Party every year and if  the Second Party does not pay the rent due to them every year, the First Party will give registered notice for recovery of rent; and in spite of such notice the Second Party or their successors, heirs or administrators do not pay the  rent,  First  Party  or  their  successors,  heirs, attorneys or  administrators  are  entitled  to  obtain possession  of  the  land  with  buildings,  either  by mutual understanding or through government.  

(2)  This  rent  note  is  valid  for  199,  in  words  one hundred ninety nine years, agreed by Second Party and on expiry of the said period, we, the Second Party will vacate the land, resurface it and will give it  to  the  First  Party  or  their  successor  with  any amount of rent due, by the Second Party or their successors or administrators, whosoever would be, and  while  giving  back  the   possession,  Second

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Party will  not raise any dispute or objection, and even if  raised will  not be admissible by virtue of this agreement.  

(3) The First Party, or their successors, heir, are not entitled  to  sale  or  pledge,  or  give  possession  of these pieces of land, to any other party, and even if they  do  so,  it  will  be  void  by  virtue  of  this agreement.  

(4) In case the government needs this land and/or if the government purchase some part of this land; then  the  right  to  receive  compensation  for  such acquisition is of First Party; however, interest at the rate  of  one  percent  per  hundred  of  whatever amount  the  First  Party  thus  receive.  will  be adjusted  by  the  Second  Party  from  the  rent payable, or the Second Party will give such reduced rent to First Party after adjusting the said amount, in the following years; and the First Party will have no right  to  any objection  or  dispute,  and even  if they raise any dispute it will be not sustainable by virtue of this agreement.

(5) In case the Second Party, or their successors, attorneys. administrators, assinee or executors do not  stay, or  do not  make use of,  or  do not  store material, on the land; or vacate the land and give possession to the First Party, before the specified period,  then  the  First  Party  is  entitled  to  receive rent till  the date of  possession so given; and the First  Party  has  no  right  to  claim  rent  for  the remaining period.  

(6) The municipal tax for the land is Rs.500-00 per year. which will be paid by the Second Party; and the Second Party will give rent of Rs.3501/- to First Party every year. However, the Second Party do not pay the municipal  tax of  Rs.500/-  and the same has to be paid by the First Party, then the Second

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Party,  or  their  successors  will  reimburse  such amount with six percent interest per hundred per year thereon.  

(7) The First Party will not object upto 199 years, if the  Second  Party,  or  their  successors,  heirs  or administrators, construct buildings with necessary government permission, or use a free land or the Second Party give on rent or on lease, and the First Party  is  entitled  to  take  possession  of  the  land immediately on expiry of 199 years.  

(8)  The  First  Party,  or  their  successors,  heirs, administrators  or  attorneys  are  entitled  to  take possession  of  the  land  before  the  expiry  of  rent period, if the Second Party fail to pay rent to First Party every year.  

(9) The government tax on this land is to be paid by we, First Party; but if some additional tax is levied because of construction on the land, it will be borne by the Second Party. Municipal tax is Rs.500/- per year at present. However, hereafter if municipality levies  some  additional  tax  on  First  Party  or  on Second  Party;  or  the  government  decide  to  levy some new tax; then all such taxes will be borne by the Second Party, and will  not claim it from First Party; nor will adjust it against rent payable to the First Party; and the First Party has no right to take possession of the land before expiry of 199 years, but the First Party has right to receive amount of rent till the above period.  

(10) The First Party and the Second Party and their successors,  heirs,  administrators,  attorneys  and assignees, are accepting the terms and conditions set out in this agreement.

Thus the Second Party has rented the pieces of land, from the First Party under the terms set out

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in  this  agreement,  at  our  will,  and  signed  and sealed this agreement.”

9. Before cataloguing the arguments advanced on behalf of

the  rival  parties  it  will  be  apposite  to  take  note  of  the

reasoning of the High Court which had prompted it to arrive at

the impugned conclusions recorded in the order under appeal.

10. The Division Bench of the High Court in answering the

appeals  before  it  exhaustively  considered  a  3-Judge  Bench

decision of this Court in Laxmidas Bapudas Darbar  & Anr.

vs. Rudravva (Smt.) & Ors.1. The Division Bench took note of

the  fact  that  in  Laxmidas  Bapudas  Darbar (supra)  the

Bench had occasion to consider the purport and effect of the

decision of this Court in  V. Dhanapal Chettiar vs. Yesodai

Ammal  2   (7-Judges) before holding that “as a matter of fact the

question of curtailment of fixed-term contractual lease was not

involved in the case of Dhanapal Chettiar” (Para 14). In fact

in  paragraph  15  of  the  judgment  in  Laxmidas  Bapudas

Darbar (supra) it was held :   

1

2001 (7) SCC 409 2 1979 (4) SCC 214

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 “It  has  nowhere  been held  that  by  virtue  of  the

provisions of the Rent Act the contract of term lease is completely obliterated in all respects. The effect of the Rent  Act  on  tenancy  under  contract  has  been considered only to a limited extent, confining it to the necessity  of  giving  notice  under  Section 106 of  the Transfer of Property Act.”

In Laxmidas Bapudas Darbar (supra) another decision

of this Court in Shri Lakshmi Venkateshwara Enterprises

(P)  Ltd.  vs. Syeda  Vajhiunnissa  Begum  (Smt.)  &  Ors.  3

rendered in the context of Section 21 of the Karnataka Rent

Act and, specifically, the provisions of the aforesaid Section of

the Karnataka Act were considered. The non-obstante clause

in Section 21 of the Karnataka Act which gives an overriding

effect  over  any  provision  in  any  other  law was  specifically

taken note of and eventually it was held that the effect of the

non-obstante clause contained in Section 21 of the Karnataka

Act on a fixed-term contractual lease would be as  follows :  

“18. The  effect  of  the  non  obstante  clause contained  under  Section  21  of  the  Karnataka Rent Act on the fixed-term contractual lease may be explained as follows:

3 1994 (2) SCC 671

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(i)  On  expiry  of  period  of  the  fixed-term lease, the tenant would be liable for eviction only on the grounds as enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act.

(ii) Any ground contained in the agreement of lease other than or in addition to the grounds enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act shall remain inoperative.

(iii)  Proceedings  for  eviction  of  a  tenant under  a  fixed-term  contractual  lease  can  be initiated  during  subsistence  or  currency  of  the lease only on a ground as may be enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the  Act  and  it  is  also  provided  as  one  of  the grounds for  forfeiture  of  the  lease  rights  in  the lease deed, not otherwise. (iv) The period of fixed-term lease is ensured

and  remains  protected  except  in  the  cases indicated in the preceding paragraph.”

11. The Division Bench of the High Court took note of the

fact that the non-obstante clause in Section 13 of the Rent Act

only  gave  the  said  Section 13 an overriding  effect  over  the

other provisions of the Act.  Section 13 was also made subject

to the provisions of Section 15 of the Bombay Act.  This is in

contrast  to  Section  21 of  the  Karnataka  Act  which had an

overriding effect over any other law or contract to the contrary.

Section  15  which  deals  with  the  authority  of  the  lessee  to

sub-lease or assign the leased rights/property, though, gives

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an overriding effect over any other law has been made subject

to any contract to the contrary.  Therefore, the terms of the

lease and other cognate provisions of law is not obliterated.

The  Division  Bench,  in  view of  the  above  provisions  of  the

Bombay  Rent  Act,  went  on  to  hold  that  the  “ratio  of  the

decision of  3-Judge Bench of  the Apex Court in  Laxmidas

Bapudas Darbar (supra) would apply with much greater force

for the benefit of the lessee under fixed long term lease in the

State of Gujarat.” It is on the aforesaid basis that the Division

Bench  came  to  the  conclusion  that  the  Rent  Act  did  not

obliterate the effect of the provisions of Section 108(j) of the

Transfer of Property Act which would vest a right in the lessee

not only to sublet but also to assign the subject matter of the

lease granted to him by the original lessor.  

12. So far  as the contention of  the appellants  that  as the

company has been wound up it no longer required the leased

land for its use is concerned, the High Court, in the impugned

judgment, disagreed with the aforesaid proposition as a viable

and acceptable proposition of law. Furthermore, it was held

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that the liability/obligation to pay rent for the leased land does

not  constitute  an  onerous  obligation  on  the  company  in

liquidation so as to justify surrender of the leased land by the

Official  Liquidator  or  any  direction to  the  said  effect  under

Section 525 of the Companies Act.  

13. So far as the issue with regard to default in the payment

of rent is concerned, the High Court, in the light of its views

with  regard  to  the  applicability  of  the  provisions  of  the

Transfer of Property Act, had invoked both Section 114 of the

Transfer of Property Act and Section 12 (3) of the Rent Act to

hold that as “the secured creditors and workers have always

shown their  readiness  and  willingness  to  pay  the  rent  and

arrears  thereof  the  lessors  are  not  entitled  to  claim  or  get

possession  of  the  land  leased  to  the  company  presently  in

winding up”. However,  in the operative part of  its order the

Bombay High Court was pleased to observe as follows :     

“In  view  of  the  statement  of  Mr.  RM  Desai, learned counsel for the secured creditor that the arrears of rent, if any, remaining unpaid by the company  in  liquidation  shall  be  paid  by  the secured  creditor,  we  direct  that  within  one month from today, the Official Liquidator shall

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supply to the secured creditor the particulars of the rent for the demised land for the period upto 31st October,  2008,  remaining  unpaid  so  far, and the secured creditor – State Bank of India shall  deposit  the  amount  with  the  Official Liquidator within one month thereafter.  It  will be  open  to  the  lessors  to  withdraw  such amount.”              

14. On behalf of the appellants it is urged that the company

in liquidation i.e. Prasad Mills Ltd. and the official liquidator

appointed by the learned Company Judge in the liquidation

proceedings  involving  the  said  company  have  rendered

themselves  liable  to  eviction  on  the  ground  of  default  in

payment of rent under Section 12 of the Rent Act.  It is further

contended  on  behalf  of  the  appellants  that  eviction  of  the

official  liquidator  is  required  to  be  ordered  on  the  grounds

enumerated in Sections 13(1)(e) and 13(1)(k) of the Rent Act.

Pointing out the provisions of Section 15 of the Rent Act it has

been  urged  that  the  official  liquidator  has  assigned  the

property contrary to the provisions of Section 15, such act not

being saved either by express term of the contract/lease deed

or by the proviso to Section 15 of the Rent Act.  Sections 18

and 19 of  the  Rent  Act  have  also  been relied  upon by  the

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appellants to show that the official liquidator is not entitled to

receive any payment apart from the standard rent.  It is urged

that in the absence of any such enabling provision not only

receipt of such consideration upon assignment is illegal but

the  property  itself  has  become  onerous  being  incapable  of

earning any profit. Besides, the property has ceased to serve

the purpose of lease in view of the liquidation of the company.

Accordingly,  the  official  liquidator  is  liable  to  surrender  the

same to the original owners, it is urged.

15. Shri P.S. Narasimha, learned Additional Solicitor General

on the other hand has submitted that the provisions of default

in the matter of payment of rent would not be attracted as the

secured creditors including the State  Bank of  India had all

along been ready and willing to pay all rents due.  In fact, the

learned Additional Solicitor General has drawn the attention to

the directions of the High Court contained in para 43 of the

impugned  judgment  (extracted  above)  to  contend  that  the

same is an order passed under Section 12(3)(b) of the Rent Act

which, however, could not be honoured in view of the interim

order  passed  by  this  Court  at  the  time  of  entertaining  the

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special leave petitions.  Insofar as the arguments advanced on

behalf  of  the  appellants  with  regard  to  Section  13(1)(e)  is

concerned,  it  is  urged  by  the  learned  Additional  Solicitor

General  that  under  Clause  7  of  the  lease  deed  dated

10.12.1916  subletting  is  admittedly  permissible.   In  the

present  case,  according  to  the  learned  Additional  Solicitor

General,  there is  no assignment.   In this  regard reliance is

placed on two decisions of the Privy Council in Hans Raj vs.

Bejoy Lal Sel4 and Ram Kinkar Banerjee vs. Satya Charan

Srimani5 to contend that the law, as prevailing in India, does

not  recognize  any  substantial  difference  between  subletting

and assignment.   So far as Section 13(1)(k) is concerned, it is

urged that the purpose of lease is not spelt out in the lease

deed and in any event Section 13(1)(k) contemplates non-user

of  the  leased premises without  a reasonable  cause.   In the

present case, such non-user is on account of the fact that the

company was ordered to be wound up as far back as in the

year 1989.   

4 [AIR 1930 PC 59] 5 [AIR 1939 PC 14]

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16. The main plank on which the appellants have based their

case,  as  already  noticed,  is  the  operation  of  Sections  12

(default),  13(1)(e)  (unauthorized  assignment)  and  13(1)(k)

(non-user  of  the  leased  land).   We  may  now  take  up  the

aforesaid issues in seriatim.   

17. Section 12 of the Rent Act confers protection on a tenant

who is regularly paying or is ready and willing to pay the rent.

In the present case while there is no doubt that rent has not

been  paid,  equally,  there  is  no  doubt  that  the  secured

creditors including the State Bank of India had all along been

ready  and willing  to  pay  the  rent  and the  reasons  for  non

payment appears to be (para 43 of the impugned order of the

High Court) lack of communication by the official liquidator to

the SBI of the precise amount of rent due.  While there can be

no doubt that mere readiness and willingness to pay without

actual payment cannot enure to the benefit of the tenant in

perpetuity what is required under Sub-section (2) of Section

12 is a notice in writing by the landlord raising a demand of

rent and only on the failure of the tenant to comply with such

notice within a period of one month that the filing of a suit for

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recovery of possession is contemplated.  The service of notice

giving an opportunity to the tenant to pay the unpaid rent is

the first chance/opportunity that the Rent Act contemplates

as a legal necessity incumbent on the landlord to afford to the

tenant.  Admittedly,  in  the  present  case,  no  such  notice  as

contemplated  by  Section  13  (2)  has  been  issued  by  the

landlord;  at  least none has been brought to our notice.   In

such a situation, the readiness and willingness of the tenant

to pay the rent, though may have continued for a fairly long

time without actual payment, will not deprive the tenant of the

protection under the Rent Act.  Though the order of the High

Court in para 43 of the impugned judgment has been placed

before the Court as an order under Section 12(3)(b) of the Rent

Act  we  do  not  find  the  said  order  to  be  of  the  kind

contemplated by  Section 12(3)(b)  inasmuch as  not  only  the

order  does  not  mention  any  specific  rent  which  has  to  be

tendered  in  Court  but  what  is  encompassed  therein  is  a

direction to the official liquidator to let the State Bank of India

know  the  precise  amount  that  is  required  to  be  paid  on

account of rent and, thereafter, to pay the same to the official

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liquidator whereafter it has been left open for the lessors to

withdraw the said amount from the official liquidator.  Such

an  order  by  no  stretch  of  reasoning  would  be  one

contemplated  under  Section  12(3)(b).   In  the  aforesaid

situation, the finding of the High Court that the landlord is not

entitled to seek eviction on the ground of non payment of rent

under Section 12 of the Bombay Rent Act cannot be said to be

so inherently infirm so as to require the interference of this

Court.  

18. This will bring the Court to a consideration of the liability

of the official liquidator to a decree of eviction on the ground

contemplated under Section 13(1)(e) of the Bombay Rent Act.

As already discussed in a preceding paragraph of the present

order, the non obstante clause of Section 13 (1) overrides only

the  other  provisions  of  the  Bombay  Rent  Act  and  is  also

subject  to  the  provisions  of  Section  15.   Section  15  which

deals  with  sub-letting  and  transfer,  though  overrides  the

provisions  contained  in  any  other  law,  is  subject  to  any

contract to the contrary.  Though in the present case the lease

deed  (clause  7)  is  capable  of  being  read  as  permitting

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sub-letting and not assignment  what has been held in the

present case by the High Court, by virtue of the decision of

this  Court  in  Laxmidas  Bapudas  Darbar vs. Rudravva

(supra),  is  that  in  view of  the  limited operation of  the  non

obstante clause in Section 15 of the Bombay Rent Act, unlike

Section 21 of the Karnataka Act, the provisions of the Transfer

of Property Act [Section 118 (o)] will not become irrelevant to

the  relationship  between  the  parties  in  which  event

assignment  may  also  be  permissible  notwithstanding  the

specific  content  of  clause  7  of  the  lease  deed  in  question.

However,  we need not  dwell  on this  issue at  any length or

would  also  be  required  to  consider  the  efficacy  of  the

arguments of the learned Additional Solicitor General on the

strength of the two Privy Council decisions mentioned above

i.e.  Hans Raj vs. Bejoy Lal Sel and  Ram Kinkar Banerjee

vs. Satya  Charan  Srimani (supra)  inasmuch  as  from

Company Application No.  34 of  2004,  which deals  with the

claim of  the  appellants  for  eviction  of  the  official  liquidator

from the leased property, what is clear and evident is that the

case  of  sub-letting  of  the  leased  premises  on  which  basis

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eviction has been prayed for is not sub-letting/assignment by

the official liquidator but assignment of the leased premises to

Prasad Mills by the original managing agents in whose favour

the  initial  lease  was  executed  by  the  predecessors  of  the

present  owners.  The  ground  of  unauthorized  and

impermissible  assignment  by  the  official  liquidator  on  the

strength of the notice/advertisement for disposal of the leased

land thereby making the said authority liable for eviction is an

argument advanced only at the hearing of the appeals before

us. That apart the said argument overlooks the fact that the

assignment  was  only  sought  to  be  made  by  the

advertisement/notice  issued  and  did  not  amount  to  a

completed action on the part of the official liquidator so as to

attract the relevant provisions of the Bombay Rent Act dealing

with the consequential  liability for eviction.  Such argument

also belies the injunctive/prohibitory relief sought for in the

Company  Applications,  as  already  noticed,  insofar  as  the

contemplated sale/transfer/assignment of the leased property

by  the  official  liquidator  is  concerned.  The  arguments

advanced on the strength of the provisions of Section 19 of the

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Bombay Rent  Act  would also  stand answered on the  above

basis.

19. Insofar as liability under Section 13(1)(k) of the Bombay

Rent Act is concerned what is to be noticed is the requirement

of unjustified non-user for a period exceeding 6 months which

evidently is not be attracted to the present case in view of the

pendency of the liquidation proceedings.  That apart, Clause 5

of the lease deed which deals with non-user of the leased land

does not  contemplate  eviction on account  of  such non-user

but merely entitles the lessor to receive rent for the period of

such non-user of the land.

20. The mere fact that the company has been ordered to be

wound up cannot be a ground to direct the official liquidator

to handover possession of the land to the owners inasmuch as

the company in liquidation continues to maintain its corporate

existence  until  it  stands  dissolved  upon  completion  of  the

liquidation  proceedings  in  the  manner  contemplated  by  the

Companies Act.   In the present case it  has been repeatedly

submitted  before  this  Court  by  both  sides  that  presently

revival  of  Prasad  Mills  is  a  live  issue  pending  before  the

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Gujarat High Court, a fact which cannot be ignored by this

Court in deciding the above issue against the appellants.

21. For the aforesaid reasons we affirm the order of the High

Court dated 17.10.2008 in O.J. Appeal Nos. 65 of 2006, 66 of

2006 and 67 of 2006 and dismiss the civil appeals arising out

of SLP(C) Nos. 29282-29284 of 2008 wherein the said order is

under challenge.

22.  The  other  civil  appeals,  which  have  been  heard

analogously, can be divided into two categories.  The first is

where the order dated 17.10.2008 passed in O.J. Appeal No.

65 of 2006 [Jabal C. Lashkari & Ors. Vs. Official Liquidator &

Ors.]  impugned  in  civil  appeals  arising  out  of  SLP(C)  Nos.

29282-29284 of 2008 has been followed.  In the other group

are the cases where the said order has been followed and also

an additional ground has been cited namely that in view of the

order dated 17.07.2006 passed in Company Application No.

250  of  2006  a  direction  has  been  issued  to  handover

possession of  the leased premises to the State  Government;

hence the question of  putting the property to sale does not

arise.

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23. Though we have affirmed the order dated 17.10.2008 of

the  Gujarat  High Court  passed in   O.J.  Appeal  Nos.  65  of

2006,  66  of  2006  and  67  of  2006  and  dismissed  the  civil

appeals arising out of SLP(C) Nos. 29282-29284 of 2008 [Jabal

C. Lashkari & Ors. Vs. Official Liquidator & Ors.], our decision

to affirm the said judgment of the High Court is based on a

consideration of the specific clauses in the lease deed between

the  parties  to  the  case.   What  would  be  the  effect  of  the

principles  of  law  underlying  the  present  order  vis-a-vis  the

specific clauses of the lease deed between the parties in the

other cases is a question that has to be considered by the High

Court  in  each of  the  cases.   That  apart  whether  the  order

dated 17.07.2006 passed in Company Application No. 250 of

2006 has attained finality in law and forecloses the question

raised and further whether constructions have been raised on

such  land  by  the  State  Government  for  the  benefit  of  the

general  public,  as has been submitted to dissuade us from

interfering with the order of the High Court, are questions that

would require a full and complete consideration by the High

Court on the materials available. To enable the said exercise to

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be duly performed, we set aside the order of the High Court

impugned in each of the aforesaid civil appeals and remit all

the  matters  to  the  High  Court  for  a  fresh  consideration  in

accordance  with  the  observations  and  principles  of  law

contained in the present order.

 .……......................,J.                                                                     [RANJAN GOGOI]

.……......................,J.                                                                  [PRAFULLA C. PANT]

NEW DELHI, MARCH 29, 2016.