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PETITIONER: MR. ANTHONY C. LEO

       Vs.

RESPONDENT: NANDIAL BAL KRISHNAN & ORS.

DATE OF JUDGMENT:       24/10/1996

BENCH: G.N. RAY, B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF OCTOBER, 1996 Present :           Hon’ble Mr. Justice G.N. Ray           Hon’ble Mr. Justice B.L. Hansaria Ms. Indu Malhotra, Adv. for the appellant mrs. Manik Karanjawala, Adv. for the Respondents                       J U D G M E N T The following Judgment of the Court was delivered : Mr. Anthony C. Leo V. Nandilal Bal Krishnan & Ors.                       J U D G M E N T G.N. Ray, J.      Leave granted.      Heard learned  counsel for the parties. The order dated February 23, 1996 passed by the Division Bench of the Bombay High Court  in Appeal(Lodged) No. 3 of 1996 in Suit No. 1010 of 1973  in the Ordinary Original Civil Jurisdiction arising out of  the Order  dated December  6,  1995  passed  by  the learned  Single   Judge  on  the  reports  of  the  receiver appointed by  the Court  in the said Suit No.1010 of 1973 in so far  as the same affects the appellant. Mr. Anthony C.Leo is the subject matter of challenge in this appeal.      Nandlal Balkrishan  Khanna and other partners of Khanna Construction House  obtained a lease of Plot No.44 of Scheme No. 58,  Worli Estate, Bombay from the Municipal Corporation of Greater  Bombay. The said partners constructed a building on the  said plot  known as  Khanna Construction  House. The appellant claims  tenancy in  respect of  a room in the said premises under  the said  partners where  he  is  running  a business named  and styled  as Flora  Chinese Restaurant. In view of  disputes arising between the partners of M/s Khanna Construction House,  one of the partners filed a suit in the ordinary original  civil jurisdiction  of  the  Bombay  High Court being Suit No. 1010 of 1973 against other partners for dissolution of the firm and distribution of assets including the building Khanna Construction House. The appellant is not a party  in the  said suit.  Some time 1973, the Bombay High Court appointed  a Receiver  in the  said suit in respect of the assets  of  the  partnership  firm  including  the  said

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building Khanna Construction House.      The appellant’s  case is  that  the  landlords  of  the building granted  tenancy to  Abdul Rehman Noor Mohammad and others in  respect of  ground floor  premises where the said tenants  started   a  restaurant   in  the   name  of  Flora Restaurant, Some  time in  1965, the  said business together with the  goodwill and  benefit of  tenancy rights was taken over by  J.S. Khanna  and S.G.  Khanna. In  April, 1967, the said Sri  J.S. Khanna  and S.G.  Khanna  assigned  the  said business as  a going  concern  together  with  goodwill  and benefits of  tenancy rights  to Father S. Perreira. On April 10, 1970,  Father Perreira  transferred the  said restaurant business to  the appellant  together with  the goodwill  and benefits of  tenancy. After  taking over  the said business, the appellant  changed the  name of  the business  to  Flora Chinese Restaurant. It is the specific case of the appellant that when  he got  assignment of tenancy and business of the restaurant, the  tenanted premises  had already  in it lofts and two  stand like  boxes attached  on the  outer wall  for storing gas cylinders and air conditioning units.      The appellant has contended that in 1979, the landlords made a  demand for  additional compensation for the box type stands affixed on the outer wall of the premises for storing gas cylinders  and air conditioning units. The landlord also raised some   dispute  regarding the  chimney  duct  in  the restaurant premises.  According to  the appellant, a meeting was held  between the  appellant and  the landlords  at  the instance of  court receiver  , and  the  landlords  demanded extra compensation at the rate of Rs. 2/- per square foot of the area  where  the  said  two    stands  for  housing  gas cylinders and  air conditioning  units  were  installed.  On measurement, the  said area  was found  to be 60 sq. ft. and the appellant  had agreed  to pay  additional amount  of Rs. 120/- per  month.  The  landlords  also  insisted  that  the appellant would  bear additional  insurance premium  and the appellant had  agreed to  such  demand.  The  appellant  has contended  that  under  the  Fire  Brigade  Rules,  the  gas cylinders cannot  be stored inside the premises but such gas cylinders are  required to  be stored  outside the premises. The appellant further contends that by letter dated June 25, 1979, the learned Advocate of the appellant had informed the court receiver  about such  agreement between  the landlords and the  appellant. The has also contended that in a meeting between the  said receiver  and parties  to the  suit, t was decided that the receiver would file a  suit for eviction of the appellant  in the Court of Small Causes and one Mr. N.K. Desai was  also engaged  to file  such suit  for eviction on behalf of  the receiver.  But till  today, no  such eviction suit has been filed against the appellant.      In March,  1995, after  a lapse  of about 16 years, the landlords thought  of a  short  cut  measure  to  evict  the appellant from the said premises without filing an ejectment suit in  the Court  of Small  Causes and  in  furtherance of such measure,  induced the court receiver to submit a report to High  Court in  the pending suit making complaint against the appellant  of construction of said lofts ad the said two stand type  boxes on  the outer  wall  for  storage  of  gas cylinders and air conditioning units and the receiver prayed for a  direction from  the High  Court against the appellant for removal of the said lofts and the said box type stands.      On August  22, 1995,  the  said  receiver  submitted  a further report  in  the  said  suit  alleging  therein  that appellant had  a permit  room in  the said  restaurant where liquor was  being served  and such  activity was illegal and contrary to  the terms  of lease  granted by  Greater Bombay

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Municipal Corporation in favour of the landlords prohibiting running a  bar in  the premises built on the leasehold land. The receiver also sought for a direction from the High Court appellant for  stopping the  said illegal  activity of using the premises  as a  permit room and serving liquor in a room in the  said restaurant.  The appellant  contends  that  the appellant was  carving on  the activity  of having  a permit room and  serving liquor  to customers  since several  years after the  lifting of the prohibition policy in the State of Maharashtra. The  appellant has  also contended  that he has obtained license  for such permit room and service of liquor in the  restaurant. The appellant has further contended that Greater Bombay a Municipal Corporation is agreeable to allow service of liquor and running a permit room in the leasehold property on  payment of specified sum to the Corporation and the appellant agrees to pay such amount to the Corporation.      In support of the contention of the appellant that long before the  receiver was appointed in the said suit inter-se the partners  of the said firm, the said two box type stands and lofts  were in  existence  in  the  premises  where  the appellant had  been carrying  on his business of restaurant, supporting affidavits  were filed  before the  High Court by one Abdul  Razak Dawood  stating that  Flora Restaurant  was started in 1962 by Noor Mohammed and others (though the year of starting  the said  business of  restaurant  was  wrongly mentioned as  1962 instead  of 1964).  It was  stated by the said Razak  that  he  was  associated  with  the  restaurant business ever  since its  inception and when J.S. Khanna and S.G. Khanna  took over the said business from Noor Mohammad, the said  lofts and stands for storing gas cylinders and air conditioning units were in existence. Mrs. Mande D pente and her husband  who were  employed in  the said  restaurant  in 1967, also  filed an  affidavit stating  that the said lofts and two  stands were in existence in 1967. Another affidavit affirmed by one Charlie D’Souza was also filed. The deponent stated that he had been working in the restaurant since 1969 and ever  since his  employment, he  had seen the said lofts and stands. Similar affidavit was filed by R.Murusen stating that he  was employed  in the  kitchen of  the restaurant in 1967 and he had seen the said boxes and lofts ever since his employment in 1967.      The appellant  also contended before the learned Single Judge, before  whom the  reports of the receiver against him were filed,  that the  receiver appointed  in the  suit  for dissolution   of partnership  and for distribution of assets including   the said  building Khanna Construction House was limited to  adjudication of  rights and obligations inter-se parties and  appellant not  being party  to  the  same.  his rights qua  tenant was not required to be adjudicated in the said suit  and, in  any event,  his right  as a  tenant  was protected under the Bombay Rents Act. Although the appellant had not  resorted to  any act for which his tenancy could be terminated and  he could  be evicted  from the said premises under his occupation as a tenant, even if it is assumed that the appellant  was  liable  to  be  evicted  from  the  said premises,  such   eviction  could   only  be   effected   by institution  of  appropriate  suit  for  eviction  of    the appellant in  the Small  Causes Court under the Bombay Rents Act on  permissible grounds under the said Act. It was quite open to  the High Court to grant permission to the  receiver for institution of suit for  eviction of the appellant after being prima  facie satisfied  on materials  submitted before the Court  that a case for instituting suit for eviction was justified.      The appellant  also contended  that the receiver is not

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entitled to  bypass the  statutory requirement of evicting a tenant only  in due  process of  law by  initiating eviction proceeding under  the Bombay  Rents Act  in the  appropriate court simply by alleging, at the instance of landlords, that the tenant  had made  constructions and    had  indulged  in unauthorised activity  of using  a portion  of the  tenanted premises as  a permit  room  and place for service of liquor to the   customers. The appellant also contended that if the court  would   decided  the  question  of  eviction  of  the appellant only  on the basis of the reports of the receiver, the valuable  rights of  a tenant protected under the Bombay Rents Act  would be defeated and the tenant would e deprived to have  a full  fledged trial where he would be entitled to lead evidence  in support  of his case and cross examine the witnesses of the landlord.      Such contentions   were,  however, not  accepted by the learned Single  Judge and  on the findings, inter alia, that the appellant had made unauthorised construction of the said lofts and  box type  stands on  the outer  wall and had also been using  a portion  of the  tenanted premises as a permit room and  has been  serving liquors to the customers in such portion, when  under the  terms of  lease granted by Greater Bombay Municipal  Corporation   to the  landlords use of the leasehold property  in   vending liquors was prohibited, and by such  action of  appellant, the  lease in  favour of  the landlords was  liable to  be cancelled,  the learned  Single Bench of  the Bombay  High Court directed that the concerned authorities would  not renew  the permit  of  the  appellant unauthorised constructions  with the  aid of  the police, if necessary.      The appellant being aggrieved by such directions of the learned Single Bench, preferred Appeal (Lodged) No. 3 before the Division  Bench of the High Court and the Division Bench by the impugned judgment dismissed the appeal and upheld the directions given  by the  learned Single Bench. The Division Bench, however,  stayed demolition of the said constructions for a  period of  six weeks  to enable the appellant to take legal steps against the order.      At the  hearing of  the appeal,  Mr. Salve, the learned Senior Counsel  appearing for  the appellant,  has contended that   the receiver  was appointed  in  the  said  suit  for preservation of the properties in dispute for protecting the interests of  the parties  to the suit. By such appointment, the court  became  custodia  legis  of  properties  in  suit through the officer of the court, namely, the receiver. Such appointment of  receiver does  not amount  to vesting of the properties in  respect of  which receiver  was appointed  by annulling  all  incumbrance  and  rights  of  third  parties receiver or,  for that  matter of  the court  appointing the receiver to  maintain the  properties in  suit may  be  well appreciated. But  being impelled  by such   anxiety, neither the receiver nor the court can affect the tenant’s rights in the suit  property well  protected by  the statute governing the relationship between a landlord and tenant.      Mr. Salve has submitted that even prima facie there was no material  on the  basis of   which   the High Court could come to  the finding  that the  appellant  has  altered  the tenants premises  either before  or after the appointment of receiver  and during the continuance of the receivership, in such a  manner by  making  permanent  constructions  in  the tenanted premises  which had  either materially  altered the nature and character of the said premises or have endangered the safety and security of the same. Mr. Salve has submitted that admittedly  the tenanted  premises was  being used as a restaurant for  a very  long time.  The appellant became the

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tenant when  Father Perriara  had  transferred  the  tenancy right together  with goodwill  of the restaurant business as an ongoing  business concern  in favour  of the appellant in April, 1970  and since  then, the appellant has been running the business  of restaurant  by changing its name from Flora Restaurant to Flora Chinese Restaurant.      Mr. Salve  has submitted  that the alleged unauthorised construction, namely,  the said lofts and box type stands on the  outer   wall  for   storing  gas   cylinders  and   air conditioning  units,  were  in  existence  long  before  the appellant got  the assignment  of tenancy right in 1970. The appellant in  support of such contention about the existence of such  lofts and  box type  stands, have  filed supporting affidavits by a number of persons as already indicated.      Mr. Salve  has submitted that for running a business of restaurant, storage  of gas  cylinders was  an indispensable necessity and  it does  not require any imagination that the predecessor of the appellant who had run the business of the restaurant must  had stored  gas cylinders  in the premises. Under the Fire Brigade Rules, gas cylinders were required to be stored  by ensuring  proper safety  and such  storage  on outside walls  was   only just  and proper and in conformity of the  Fire Brigade  Rules. Precisely  for the said reason, the predecessors in restaurant business in the said premises had made  arrangements of  such storage  of gas cylinders by constructing box  type stands  on the  outer wall.  Such box type  constructions   were  also   made  for   keeping   air conditioning units.  It is  nobody’s case that the appellant installed air  conditioning units.  It is nobody’s case that the appellant  installed air conditioning unit for the first time in  the said restaurant and it is the appellant who has been running  the business  of restaurant in the premises in question for  the first  time after  obtaining assignment of tenancy right.      Mr. Salve  has submitted  that the  appellant’s case of existence of the said lofts and box type stands on the outer walls from  long before  and box  type stands  on the  outer walls from long before his induction as a tenant, gets ample support from  the affidavits affirmed by a number of persons who being closely associated with the restaurant business in the tenanted  premises long  before  the  induction  of  the appellant, have  categorically stated about the existence of such  lofts  and  box  type  stands  from  long  before  the induction of  the appellant  as a  tenant.  Such  affidavits could not  have  been  discarded  in  a  summary  manner  in disposing of  the reports of the receiver, more so, when the valuable tenancy  right of  a third party like the appellant was  instrinsically  involved  in  the  exercise  of  giving directions  affecting   the  interest   of  the  tenant  and nullifying the statutory protection of a tenant.      Mr. Save  has also  submitted that  landlords  and  the receiver were  well aware of the existence of such lofts and box type  constructions had in June 1979, the landlords made demands for  extra payment at the rate of Rs. 2/- per sq.ft. for such  construction measuring  60 sq.ft.  in all and also additional premium  on account  of storing  gas cylinders by the appellant.  The appellant’s Advocate’s letter dated June 25, 1979  sent to  the receiver clearly indicates the factum of landlords  and receiver’s  awareness of  the existence of the said  lofts and the box type stands and the appellant to pay additional  sum of  Rs. 120/-  and additional  amount on account of premium.      Mr. Salve  has submitted  that the  landlords  and  the receiver were  fully aware  of the  legal  position  of  the landlords vis-a-vis  a tenant  protected by the Bombay Rents

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Act and  a decision  was taken long back to institute in the Court of  Small Causes  under the  said Rents  Act, but such eviction suit  was not instituted presumably on appreciating that such  attempt for  eviction would  be  an  exercise  in futility. Mr. Salve has also submitted that running a bar in a portion  of the  restaurant is  only ancillary to the main business of  an eating  house or  restaurant. Such  bar  was being run after obtaining valid license from the appropriate statutory  authority.   The  allegation  of  the  threat  of cancellation  of   the  lease   granted  by   the  Municipal Corporation to  the landlords on account of running a bar in the said  premises is also unfounded, and a case such threat is being set up as a ploy to oust the appellant. Consumption of liquor  was prohibited  in Maharashtra when the lease was granted by the Corporation to the landlords and, accordingly in the  lease deed, a clause containing prohibition of using the leasehold  property for  service of  liquor in public is prohibited. The Municipal Corporation on being approached by the  appellant,  has  expressed  its  willingness  to  allow consumption of  liquor in the leasehold property by amending the terms of lease on  payment of specified sum.      Mr. Salve  has further  submitted that  a tenant may be liable to  be evicted  for unauthorised  construction or for other activities  mentioned in  the Rent Act. But the tenant cannot be  evicted from the tenanted premises on the alleged ground  of   unauthorised  construction   or  other  illegal activities which  may enable the landlord to obtain order of eviction under  the Bombay  Rents  act  unless  a  suit  for eviction is  filed before  the Small  Causes Court under the said Act  and existence  of grounds for eviction are clearly established by  leading evidence in such suit. A landlord is also  not   entitled  to   demolish   alleged   unauthorised construction in   the  tenanted premises  unless the dispute about such  construction is  adjudicated in  an  appropriate forum. In  any event,  the dispute  as to  the existence  of unauthorised construction  by a  tenant is  required  to  be adjudicated only  in a  suit instituted  against the  tenant where such dispute may resolved on the basis of evidences to be adduced by the respective party by examining witnesses in support of  respective case.      Mr. Salve  has submitted  that the  appellant is  not a party in  the said  suit, his  rights and  protection  as  a tenant could  not have  been adjudicated in a summary manner on the  basis of reports filed by the receiver. The impugned order is not only illegal but manifestly unjust and improper resulting in serious miscarriage of justice.      It has  been contended  by Mr.  Salve that the receiver who merely  holds dejure  possession of the property for the benefit of  parties to  the suit  without the property being vested in  the receiver,  has  no  higher  rights  than  the landlords themselves.  If there  was no receiver, the remedy of the  landlords was  to file  a suit against the tenant in the Court  of Small Causes being the appropriate court under the Bombay  Rents Act.  Such position is not changed by mere appointment of  a court  receiver in  a  suit  inter-se  the landlords for  distribution of  properties  in    which  the tenant is  not a party. Mr. Salve has submitted that if such course of  action against  the tenant is permitted, it would be easy for designing landlords to circumvent the provisions of Rent Act by filing a suit amongst the landlords and after obtaining an  order  for  receiver  in  such  suit  even  by consent, and  then, with the instrumentality of the receiver to obtain  orders from  Court in  the said  suit against the tenant in  complete disregard of the statutory protection of the rights  of the  tenants under  the Rents  act regulating

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inter-se rights  and obligations  of a  tenant and landlord. Mr. Salve  has also  submitted that  such procedure would be contrary to Order 40 Rule 1(2) of Civil Procedure Code which protects the  rights of  the persons  who are not parties to the suit  as against  the receiver.  Mr. Salve has submitted that  the   impugned  directions   of  the  High  Court  for demolishing the  said lofts  and box  type constructions and also direction  prohibiting renewal of license for running a bar  by   the  appellant  and  restriction  imposed  on  the appellant to  have a  permit house  and to  run a bar in the tenanted premises,  should be  set aside  by  allowing  this appeal.      Mr. R.  Nariman, the  learned Senior  Counsel appearing for the  respondents, has, however, disputed the contentions of Mr. Salve. Mr. Nariman has contended that for an order of eviction of a tenant, a suit under the appropriate Rent Act, where such  Act is  applicable is  to be instituted and such protection of  the tenant  cannot be defeated without taking recourse under  the provisions  of the Rent Act. But in  the instant case,  no order  of eviction  of the tenant has been passed by the Court in giving the directions on the receiver by the impugned order.      Mr. Nariman  has submitted  that the  receiver has been appointed in  respect of properties in dispute including the building, Khanna  Construction House, because the Court felt it expedient  to preserve  the properties  in  dispute    by getting such  properties supervised  and administered by its own officer,  the receiver. When the properties are custodia legis, the  Court is  not only  competent to issue necessary orders and  directions on  its officer,  the  receiver,  for proper preservation  and maintenance  of such properties but in a  way, the  Court  is  under  the  obligation  to  issue appropriate  orders   and  directions   for  effecting  such maintenance and preservation.      Mr. Nariman  has contended  that a tenant has statutory protection against  eviction  except  on  grounds  for  such eviction under  the Rent  Act and the relationship between a landlord and  tenant is  controlled  and  regulated  by  the provisions of the Rent Act. The circumstances under which an order of  eviction is   to be made, the authority which will pass such  order are  contained in the Rent Act. Mr. Nariman has submitted  that it should be appreciated that although a tenant is  free to enjoy peaceful possession of the tenanted premises, he  has no  right  to  destroy  such  premises  or indulge in  such activities  which are  likely to  seriously affect the  safety and security of the house. Similarly,  he is  not   entitled  to  indulge  in  activities  which  will materially affect  the nature  and character of the tenanted premises and  is likely  to bring about a situation by which the superior  right of  the landlord in the premises will be in  jeopardy.   Such  action   being  per   se  illegal  and unauthorised and  beyond the usual rights of a lessee vis-a- vis the lessor, the lessor or landlord has not only right to take recourse  to  eviction  of  the  lessee  or  tenant  by bringing   an action  for eviction  in accordance  with  the provisions of  the relevant  tenancy act.  If a  landlord is entitled to take  suitable action for preventing a tenant in indulging in  unlawful activities  in  respect  of  tenanted premises,  the   receiver  has  certainly  such  right.  The receiver has  a paramount  duty to draw the attention of the Court appointing  the receiver,  of such unlawful activities by the  tenant and   to seek appropriate direction by way of remedial measures to prevent such activities.      Mr. Nariman has submitted that in the instant case, the receiver has  not done  anything  extraordinary.  Since  the

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tenant had changed the nature and character of  the tenanted premises by  making permanent  construction and had indulged in storing gas cylinders endangering the safety and security not only of such premises but of the entire building and has indulged in  using  the  premises  as  bar,  even  when  the landlords under  the terms  of the  lease are  prohibited to indulge in  such activities  at the risk of lease granted by Municipal Corporation of Greater Bombay being cancelled, the receiver and,  for that  matter, the Court had a solemn duty to pass  appropriate orders and directions for prevention of such unauthorised  activities after  affording the tenant an opportunity of being heard.      Mr. Nariman  has submitted  that the  tenant was put to notice of  the allocation  of his  illegal activities in the tenanted premises  and was  given opportunity  to raise  his defences against  such allegation.  After giving  the tenant reasonable opportunity  to place  his case,  the Court after being satisfied  that the  tenant had  indulged  in  illegal activities, not  permitted to  be undertaken  in exercise of his right  as a  tenant, has passed the directions contained in the  impugned order  so that  the directions contained in the impugned  order so that the properties in custodia legis are properly preserved during the pendency of the said suit. The landlords,  despite such  orders or  directions  of  the Court,   still retain the right to bring action for eviction under the  Bombay Rents Act for the said illegal activities. In the  aforesaid facts,  no interference  is called for and the appeal should be dismissed.      Giving our  careful  consideration  to  one  facts  and circumstances of  the  case  and  submissions  made  by  the learned counsel  for the  parties, it  appears to  us that a receiver is appointed by the Court when the Court entertains a view   that  for preservation  of the  properties in suit, till the  rights  of  parties  to    the  suit  are  finally adjudicated,  such   properties  should   be  preserved   by exercising   control and supervision of the same through the officer of  the  Court,  the  receiver.  The  Court  becomes custodia legis of the properties in suit in respect of which receiver is  appointed. Such de jure possession of the Court through its receiver. however, does not bring  about vesting of  the  properties  in  receiver  or  in  court  free  from incumbrance eve  bendente lite.  Despite  appointment  of  a receiver, rights  and  obligations  of    third  parties  in respect of  properties in  custodia legis remain unaffected, where a  receiver  appointed  by  the  Court  is  in  actual physical possession  of a  property, no  one, whoever he may be, can disturb the possession of the receiver and the Court may hold  such person  who disturbs receiver’s possession as guilty for  committing contempt  of court. A man, who thinks he   has   a right  paramount to   that  of receiver,  must, before he  takes any  step of  his own  motion, apply to the Court for  leave to assert his right. Grant of leave in such case is  the rule  and refusal  to grant  leave is exception (Everest Coal Company Pvt. Ltd. v. State of Bihar and others AIR 1977  SC2304). The  rule that receiver’s possession will not be disturbed without leave of the Court is, however, not applicable  if  the  receiver  is  not  in  actual  physical possession of the property.      Since the  properties  in  a  suit  is  being  managed, maintained and  administered by  the Court through receiver, the receiver  is under  an obligation to take all reasonable steps for  preservation and  maintenance of such properties. If for  such preservation, action in civil or criminal court is necessary, receiver is to draw the attention of the Court of relevant  is to  draw  the  attention  of  the  Court  of

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relevant facts  necessitating such  legal  action  and  take leave  of   the  Court   to  institute   appropriate   legal proceedings for  the preservation  of the  property. As  the does not  vest free from the incumberances in custodia legis by annulling   all  rights and  obligations attached  to the property, the  receiver cannot  interfere with  any right of the third  party, Sub  rule (2) of Rule 1 of Order 40 of the Code of  Civil Procedure  provides :  "Nothing in  this rule shall authorise  the court  to  remove  from  possession  or custody of  property any  person  whom any party to the suit has not a present right to remove."      Such sub-rule  clearly indicates that the Court and its officer, the receiver, does not posses any right higher than the right  a party to  the suit possesses.      Where a Rent Act is applicable, the inter-se rights and obligations of  the landlord  and   tenant are regulated and controlled by  such Rent  Act in areas where any special law governing the  incidents of  tenancy is  not applicable, the law relating  to lessor  tenancy is  not applicable, the law relating to  lessor and  lessee as  envisaged by the general law of  the land,  namely, Transfer  of Property  Act,  will regulate and  determine inter  se  rights  of  landlord  and tenant. In  dealing with the rights and obligations which is third party  may have  in respect  of a  property in which a receiver has  been appointed,  the receiver, like a party to the suit,  will have  same limitation.  The receiver will be bound by  the incidence  of tenancy flowing from the statute regulating and  determining inter  se rights of landlord and tenant. Therefore, there is no manner of doubt that no order for eviction of the tenant can be passed by the Court at the instance  of  its  officer,  the  receiver,  without  taking recourse to  appropriate proceedings  for  eviction  of  the tenant  under   the  appropriate   statute  regulating   and governing the inter-se rights of landlord and tenant. It may also be  emphasised here  that even  apart from  an eviction proceedings, any incidence of tenancy which is regulated and controlled by a special statute cannot be altered, varied or interfered with  except in accordance with the provisions of such statute. The Court in such cases has no jurisdiction to pass orders and direction affecting the right of  the tenant protected, controlled  or regulated  by the  Rent Act on the score of  expediency in  passing some order or direction for the maintenance and preservation of the property in custodia legis.      It is  to be indicated that though a tenant of property in custodia legis cannot be deprived of statutory protection of the  rights of tenant vis-a-vis landlord, a tenant cannot claim protection  of any  assumed right not flowing from the incidence of tenancy. For example, if a tenant starts making some unauthorised  construction  in  the  tenanted  premises threatening safety  and security of the tenanted premises or of the  building as  a whole, the landlord certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without  seeking   his eviction.  Such right  to seek eviction under the appropriate  tenancy law, if permitted.      In our  view, if  a tenant  resorts to unauthorised and illegal activity  in respect  of tenanted premises when such premises is  in  custodia  legis,  for  prevention  of  such illegal and  unauthorised activities not consistent with any right flowing  from the incidence of his tenancy, it may not be necessary  to institute  a suit for preventing the tenant from such  illegal activities; but the Court, being apprised by the  receiver of  such illegal  activities of  a  tenant, thereby obstructing  the  Court’s  overall  supervision  and

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concern  for  preserving  or  maintaining  the  property  in custodia legis,  will be  within its  right to pass suitable order or  direction against  the tenant  for  prevention  of illegal and  unauthorised activities after giving the tenant reasonable  opportunity   to  place   his  defences  against allegation of unlawful and illegal  activity. What should be the reasonable  opportunity, must  depend on   the  facts of each case.  The Court, in such a case, should ensure broadly that  the   tenant  is   not  deprived   of  the  reasonable opportunity to  which he  would have  been  entitled  if  an action against  him in  a court  of law  had been brought on such complaint.      It appears to us that since  the Court must be presumed to be  fully unbiased  in deciding the allegation of defence and illegal activities of a tenant causing prejudice against the lawful  owner of  in  the  matter  of  preservation  and maintenance of  the property pendente lite, the necessity of adjudication of such dispute  by another court by bringing a legal necessary  nor expedient.  It, however, should be made clear that  if for  the purpose  of deciding  the dispute of defence and  illegal activity  affecting  maintenance    and preservation of   the  property in  custodia legis it become necessary to  determine any right claimed under a statute or flowing from  some action  inter parte as may be pleaded and required to  be decided, it is only desirable that the Court would  refrain   from  such  determination  in  the  summary proceeding initiated  before it  on  the  complaint  of  the receiver or  a party  to the suit and  the Court will direct the receiver  to seek  adjudication of  the dispute before a competent court  by bringing  appropriate legal action. Save as aforesaid,  it will  not be correct to contend that in no case the  Court exercising  control and  supervision of  the property  in   suit  by   appointing  a   receiver  will  be incompetent even to pass direction against a third party for the purpose of preservation of the property, once such third party pleads  defence in  justification of  his action.  The question  of  summary  adjudication  of    his  action.  The question of  summary adjudication  by the  Court  appointing the receiver  or relegating  the receiver  to a regular suit for adjudication  of the dispute concerning third party will depend on  the nature  of dispute and the defence claimed by the third party.      In the  facts of  the case,  however, it  appears to us that the  appellant tenant has come out with a specific case that the  structures  in  question  were  there  before  his induction as  a tenant.  In support  of such  contention,  a number  of   supporting  affidavits  have  been  filed.  The appellant has  also contended  that the  landlords  and  the receiver were  fully aware of the existence of the structure long back,  and according  to the appellant, at one point of time an  agreement was reached between the landlords and the appellant for  payment of  a  sum  of  Rs.  120/-  for  such construction covering  about  60  sq.  ft.  besides  further amount on  account of  additional premium  to be paid by the landlords and  an Advocate’s letter was sent to the receiver apprising the   receiver  of such  understanding between the parties.      The appellant  has also  claimed right  to operate in a portion of  the tenanted  premises a permit room for serving liquor to the customers of the hotel after obtaining license from the  statutory authority on the footing that such right is incidental  and ancillary  to his right operate an eating house or  restaurant. Such contentions should not be decided in a  summary  proceeding  to  dispose  of  reports  of  the receiver or a complaint by a party to the suit about alleged

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illegal activities  by a  tenant in  a property in suit. Any summary disposal  of such dispute on the claim of some legal right by  the tenant  is  likely  to  seriously  affect  the tenant, because  once some  constructions  in  the  tenanted premises are  removed on  a finding  that such constructions were made  illegally and  defence by  the tenant, the tenant not only  suffers the  said direction  of removal at present but become   liable to be evicted from the suit premises for such defence  construction by  him. Similarly,  the  finding against the  tenant on the question of running a permit room cannot but  seriously affect the tenant’s right to operate a permit room and is also likely to  expose him to the risk of being evicted from the  suit premises.      In the  aforesaid facts,  the impugned  order cannot be held to be justified, we therefore, allow the appeal and set aside the impugned order. It will be open to the receiver to bring appropriate  legal action against the tenant appellant for  removal  of  the  alleged  defence  structure  and  for preventing him  from running  a permit  room in the tenanted premises, besides  instituting a suit for eviction under the Rent Act.  By way of abundant caution, we make it clear that we have  not expressed  any opinion on the respective rights of the parties.