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  REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2878   OF 2014 (Arising from SLP(C) No.21436/2012)

M/s Band Box Private Limited ..Appellant

versus

Estate Officer, Punjab & Sind Bank and Anr. ..Respondents

O R D E R

Leave granted.

2. We have heard Mr. Harin P. Raval, learned senior  

counsel  in  support  of  this  appeal  and  Mr.  Vikas  Singh,  

learned senior counsel appearing for the respondents.

3. This appeal seeks to challenge the judgment and  

order dated 13.07.2012 passed by a Division Bench of the  

Delhi  High  Court  in  L.P.A.  No.250/2012,  whereby  the  

Division Bench confirmed the order passed by the learned  

Single Judge as well as the orders passed by the District  

Judge  and  the  Estate  Officer.   The  appellant  has  been  

directed  to  be  evicted  under  these  orders  from  the  

concerned premises situated at 18/90, Connaught Circus,New  

Delhi-110001.

4. The case of the appellant is that the appellant  

has been occupying these premises right from 26th March,  

1952 and the respondent-Bank became owner of this property  

only on 31.12.1978. There were some initial notices issued  

to the appellant to vacate the premises, but ultimately it  

is the notice dated 15.11.1999 with which we are concerned

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in the present matter. It was the notice issued by invoking  

the provisions of Section 106 of the Transfer of Property  

Act.  This  was  followed  by  the  proceeding  to  evict  the  

appellant which has led to the eviction order passed by the  

Estate  Officer,  and  which  has  been  confirmed,  as  stated  

above, all throughout.

5. Mr. Raval submits that the appellant had raised  

the point of not being covered under the Public Premises  

Act, 1971 at all stages.  He has drawn our attention to the  

order  passed by the Estate Officer, wherein it has been  

recorded that the appellant canvassed that the appellant's  

tenancy  continued  under  the  protection  of  Delhi  Rent  

Control  Act,  and  the  respondents  were  not  capable  of  

terminating  the  tenancy  by  mere  service  of  the  notice.  

That  submission  was  specifically  rejected  by  the  Estate  

Officer  by  relying  upon  the  judgment  of  this  Court  in  

Ashoka Marketing Limited and another vs. Punjab National  

Bank and others reported in (1990) 4 SCC 406.

6. Mr.  Raval  submits  that  the  said  plea  was  

reiterated before the District Judge, and it is reflected  

in  paragraph  5  of  the  order  of  the  District  Judge.  

Thereafter, this plea has been raised before the learned  

Single Judge, and also in the Special leave petition before  

this Court.  Mr. Raval has drawn the attention of this  

Court to the judgment in the case of Dr. Suhas H. Pophale  

vs. Oriental  Insurance Co.  Limited reported  in 2014  (2)  

SCALE  223.  In  this  judgment,  to  which  one  of  us  (H.L.  

Gokhale, J.) was a party, this Court has held that the  

Public Premises Act cannot be applied to the premises where

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the occupants have come in possession thereof, prior to the  

application of the Act, i.e., prior to 16th September, 1958.  

In  the  circumstances,  Mr.  Raval  submits  that  all  these  

orders should be set aside, the appeal should be allowed  

and the eviction proceedings should be dismissed.

7. On the other hand, it was submitted by Mr. Vikas  

Singh, learned senior counsel appearing for the respondent-

Bank that the appellant had raised at an intermediate stage  

the plea of not being covered under the Public Premises  

Act, and had subsequently dropped that plea. They had then  

relied upon guidelines and, therefore, the plea, which is  

sought to be raised at a second stage, cannot be allowed to  

be raised now on the ground of res judicata, as well as  

constructive res judicata.  As far as this objection of Mr.  

Vikas Singh is concerned, inasmuch as the plea raised by  

Mr. Raval is based on a legal submission, we would not like  

the appellant to be denied the opportunity of raising the  

legal  plea  and,  therefore,  we  do  not  accept  this  

submission.

8. There  are  two  other  submissions  raised  by  Mr.  

Vikas Singh. Firstly, he drew our attention to the fact  

that in  Ashoka Marketing Limited (supra),  there were two  

properties  involved,  namely,  one  that  was  of  Ashoka  

Marketing  Limited  and  the  second  was  of  M/s  Sahu  Jain  

Services  Limited.  Both  the  parties  were  occupying  the  

premises concerned since 1.7.1958, i.e., prior to the date  

when  the  Public  Premises  Act  became  applicable,  and  in  

spite of that their submissions have been rejected by the  

Constitution  Bench.  This  being  the  position,  in  his

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submission, the view taken by  a Bench of two Judges in the  

case of  Dr. Suhas H Pophale(supra)  is erroneous.  We have  

noted this submission of Mr. Vikas Singh. In paragraph 47  

of the judgment in the case of Dr. Suhas H. Pophale, this  

Court has referred to the judgment in the case of M/s Jain  

Ink Manufacturing Company vs. L.I.C. reported in (1980) 4  

SCC  435,  and  has  observed  that  the  issue  of  protection  

under a welfare legislation being available to the tenant  

prior  to  the  premises  becoming  public  premises,  and  the  

issue  of  retrospectivity,  was  not  under  consideration  

before  the  Court  in  M/s  Jain  Ink  Manufacturing  Company  

(supra). The same holds good for the judgment rendered  in  

Ashoka Marketing Limited (supra), and that being so, since  

those aspects were not gone into in the judgment of Ashoka  

Marketing Limited (supra), this Court has examined them in  

the case of Dr. Suhas H. Pophale (supra).  This Court has  

specifically observed in paragraph 50 thereof that for a  

moment  this  Court  was  not  taking  any  different  position  

from the propositions in Ashoka Marketing Limited (supra).  

In  fact,  what  was  done  was  to  clarify  that  the  Public  

Premises  Act  will  apply  only  in  certain  circumstances.  

That being so, this submission of Mr. Vikas Singh cannot be  

accepted.   

9. He  then  referred  us  to  a  judgment  of  another  

Constitution  Bench  in  the  case  of   Kaiser-I-Hind  Pvt.  

Limited  and  another  vs.  National  textile  Corporation  

(Maharashtra North) Limited and others (2002) 8 SCC 182,  

and  particularly  paragraphs  40,  42  and  65  thereof.  

Paragraph 40 of this judgment reads as follows:

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“40. Once the PP Eviction Act is enacted, then  the  Bombay  Rent  Act  would  not  prevail  qua  the  repugnancy between it and the PP Eviction Act. To  the extent of repugnancy, the State law would be  void  under  Article  254(1)  and  the  law  made  by  Parliament  would  prevail.  Admittedly,  the  duration of the Bombay Rent Act was extended up  to 31.3.1973 by Maharashtra Act 12 of 1970. The  result would be from the date of the coming into  force of the PP Eviction Act, the Bombay Rent Act  qua  the  properties  of  the  Government  and  government  companies  would  be  inoperative.  For  this  purpose,  language  of  Article  254(1)  is  unambiguous and specifically provides that if any  provision of law made by the legislature of the  State is repugnant to the provision of law made  by Parliament, then the law made by Parliament  whether passed before or after the law made by  the legislature of the State, would prevail.  It  also  makes  it  clear  that  the  law  made  by  the  legislature  of  the  State,  to  the  extent  of  repugnancy, would be void.”  

10. As  seen  from  paragraph  40,  quoted  above,  the  

judgment clearly says that the Bombay Rent Act would not  

prevail  qua  the  repugnancy  between  it  and  the  Public  

Premises  Eviction  Act.  That  aspect  has  not  been  

contradicted in  Dr. Suhas  H. Pophale's  case  (supra). It  

also relies upon the judgment in  Ashoka Marketing Limited  

(supra) which says that the Public Premises Act as well as  

the State Rent Control Laws are both referable to entries  

in concurrent list and they operate in their own field.  It  

is only in the area of its own that the State Rent Control  

Act applies and in its own time frame.  The judgment in Dr.  

Suhas Pophale's  case accepts that the Public Premises Act  

will prevail over the Bombay Rent Act to the extent of  

repugnancy i.e. for eviction of unauthorised tenants and  

for  collection  of  arrear  of  rent,  but,  not  prior  to  

16.9.1958 when the Public Premises Act became applicable.  

Paragraphs 42 and 65 which are relied upon also do not deal

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with  the  aspect  of  retrospectivity  and  being  protected  

under the welfare legislation. That being so, it is not  

possible to accept this submission of Mr. Vikas Singh.

11. For the reasons stated above, we allow this appeal  

and set aside the order passed by the Division Bench as  

well as by the Single Judge, by the District Judge, and the  

Estate Officer.  The eviction proceedings initiated against  

the appellant will stand set aside.

12. Although, this appeal has been allowed in favour  

of the appellant, Mr. Vikas Singh has pointed out that when  

this appeal came up for consideration at an earlier stage,  

this  Court  had  passed  an  order  on  6.8.2012,  that  the  

appellant shall pay a sum of Rs.1,80,000/- per month as  

rent.   Mr.  Raval  has  taken  instructions,  and  has  very  

fairly stated that the appellant is aggreable to continue  

to pay this amount, though otherwise the recorded rent is  

only Rs.183/- per month.  The appellant has been paying  

this  amount,  as  per  the  order  passed  by  this  Court  on  

6.8.2012 and shall continue to pay that amount, hereinafter  

by  way  of  rent.  Mr.  Raval  has  however  sought  that  the  

appellant shall pay this rent regularly, but it should get  

some protection, inasmuch as he is  agreeing to pay this  

substantial  higher  amount.   Mr.  Vikas  Singh  has  taken  

instructions  and  he  states  that  the  appellant  will  be  

allowed to continue in the premises, at least, for a period  

of  12  (twelve)  years,  provided  the  appellant  pays  the  

monthly rent regularly, with a rider that at the end of  

every  financial  year,  the  respondent-Bank  will  have  the  

right to revise the rent by an increase of ten per cent.

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Mr.  Raval  agrees  to  the  suggestion  of  Mr.  Vikas  Singh.  

Therefore, the next revision of rent will be from 1.4.2015.  

We record this understanding between the parties and though  

this appeal is allowed, the appellant will pay the rent of  

Rs.1,80,000/-  per  month  till  the  end  of  31.3.2015,  

whereafter the Bank will be entitled to revise the rent by  

ten per cent every year. In the event of any default in  

paying  the  monthly  rent,  the  respondent-Bank  will  be  

entitled to take the appropriate proceedings.  The 12 years  

period will be counted from 1.4.2013.  We make it further  

clear that after the expiry of twelve years, it will be  

open  to  the  respondents  to  take  steps  under  the  Public  

Premises Act, 1971, if required.

.....................J. [H.L. GOKHALE]

NEW DELHI; .....................J. FEBRUARY 25, 2014. [KURIAN JOSEPH]