The Bombay High Court has allowed a civil revision application filed by The Oriental Insurance Company Ltd., setting aside the appellate court’s order and restoring the eviction and damages order passed by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The Court held that, in the absence of a subsisting registered lease, the respondent was a monthly tenant, whose tenancy was validly terminated by a 15-day notice under Section 106 of the Transfer of Property Act, 1882, rendering its occupation unauthorised and liable for damages.
The dispute concerned a cabin on the mezzanine floor of ‘Oriental House’, Mumbai, owned by the applicant. The respondent was originally inducted as a tenant under a lease executed in 1970 for three years, which expired in 1973. No fresh lease deed was executed thereafter, though the respondent continued in occupation by paying monthly rent. Alleging default in payment of rent and change of user from office to godown, the applicant issued a termination notice dated March 13, 2001, calling upon the respondent to vacate the premises and pay arrears, failing which damages for unauthorised occupation would be claimed. Proceedings were thereafter initiated before the Estate Officer, who by order dated March 5, 2008, directed eviction and payment of damages at ₹6,900 per month from May 1, 2001 till delivery of possession, with interest.
In appeal, the City Civil Court reversed the Estate Officer’s order, holding that the tenancy was not validly terminated as the arrears demanded had been paid and that, in view of a clause in the original lease deed, a 90-day notice was required. Challenging this view, the applicant approached the High Court. During pendency of the revision, possession of the premises was handed over, leaving only the issue of damages for unauthorised occupation to be decided.
While deciding the revision, Justice Gauri Godse examined the scheme of Sections 106, 111 and 116 of the Transfer of Property Act and held that once the original lease expired by efflux of time and no fresh registered lease was executed, the respondent continued only as a monthly tenant by holding over. In such circumstances, the Court held, the tenancy was terminable by a 15-day notice, and the 90-day notice clause in the expired lease deed had no application. The Court further held that the case was one of termination under Section 111(h) and not forfeiture under Section 111(g), and therefore the doctrine of waiver under Section 112 did not arise merely because arrears were paid.
The Court found that the termination notice dated March 13, 2001 was validly served, and that upon expiry of the notice period, the respondent’s occupation became unauthorised within the meaning of Section 2(g) of the Public Premises Act. It further noted that the appellate court had not disturbed the Estate Officer’s findings on quantification of damages, and that the respondent had led no evidence to rebut the applicant’s computation.
Accordingly, the High Court quashed the appellate court’s order dated July 29, 2009, restored the Estate Officer’s order dated March 5, 2008, and confirmed the applicant’s entitlement to recover damages for unauthorised occupation till the date of handing over possession.
Appearances:
For the Applicant – Advocate V.Y. Sanglikar
