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PETITIONER: SHANGRILA FOOD PRODUCTS LTD. & ANR.

       Vs.

RESPONDENT: LIFE INSURANCE CORPORATION OF INDIAAND ANOTHER

DATE OF JUDGMENT:       09/07/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCC  (5)  54        JT 1996 (6)   522  1996 SCALE  (5)289

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      Leave granted.      This appeal is virtually against the judgment and order of a  learned Single Judge of the Bombay High Court dated 9- 11-1993 passed  in Writ  Petition No.2949  of  1993  against which Letters  Patent Appeal  No.1  of  1994  was  dismissed summarily by a Division Bench of that Court on 14-1-1994.      The learned  Single Judge  was  spared  the  ordeal  of recounting the  checkered history  of the litigation between the parties  because of  the reasonable  stand taken by both the sides.  We assume  that we too have been spared likewise and the  parties continue  to be  reasonable. It  so happens that there  is a  building known  as Great  Social  Building situate at  60, Sir  P.M. Road,  Fort,  Bombay,  which  once belonged to  the Great  Social Life  Insurance Co.  Ltd.  It appears that  M/s. Interseas  Corporation had  taken on rent the fourth  floor of  the said building sometime in the year 1944. A  portion carved  out therefrom by a wooden partition was apparently  sublet by  M/s. Interseas Corporation to the appellant M/s. Shangrila Food Products Ltd. in July 1951. It also appears  that M/s.  S.M. Enterprises  also became  sub- lessees of  M/s. Interseas Corporation of another portion of the property.      On the  setting up of the Life Insurance Corporation of India under  the Life  Insurance Corporation  of India  Act, 1956 all the assets and liabilities of the said Great Social Life Insurance Company were taken over by the Life Insurance Corporation  of  India.  It  is  appellants’  case  that  in consequence thereof,  M/s. Interseas  Corporation became the tenant of  the Life  Insurance Corporation and the appellant company  became  the  sub-tenant  by  operation  of  law  in relation to the premises in question. Further it is the case of the  appellant company that it has become a deemed tenant under the  respondent Life  Insurance Corporation because of

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the Bombay  Rents Hotel  and Lodging  Houses  Rates  Control (Amendment) Ordinance of 1959.      Legal proceedings  were initiated by the Life Insurance Corporation of  India, the  respondent herein,  against  the appellant Company and one of its shareholders-cum-Directors, for  possession  of  the  premises  in  question  under  the provisions of  The Public Premises (Eviction of Unauthorised Occupants) Act,  1971 (for  short  "the  Act").  The  Estate Officer  after   conducting   the   requisite   inquiry   as contemplated under  the Act  passed an  order of eviction of the original  tenants as  also the appellant-Company holding it as unauthorised occupant being unlawful sub-tenant of the original tenant. The Estate Officer also passed an order for damages to the tune of about Rs.12 lakhs.      Being aggrieved  against the  said order of eviction as well as  damages, appeals  were preferred  by the  appellant Company as  well as the original tenant before the Principal Bench, City  Civil Court, Bombay. The appellate Court upheld the order  of eviction  but reversed  the order  relating to damages, coming to the conclusion that there was no evidence in support of the order. The said order of eviction was thus challenged by the appellant Company before the High Court of Bombay. But  the respondent-Life  Insurance  Corporation  of India, did  not choose to file any Writ Petition challenging those  orders   whereby  its  claim  for  damages  had  been negatived by the appellate Court.      The learned Single Judge of the High Court examined the files relating  to the  case and entertained the belief that the  Estate   Officer  had   not  dealt   with  the   matter satisfactorily  inasmuch   as  material   from  the  earlier litigation, which  had been  fought  prior  to  the  instant proceedings, had  per se  been inducted  into the  files and there was  hardly any  effective or  clear discussion on the issue whether  the appellant  Company was  an unlawful  sub- tenant and  therefore in  unauthorised  occupation.  On  the basis thereof,  the learned Single Judge expressed his views that the  interest of  justice required  that the  matter be remanded to  the Estate Officer for fresh decision. It is at that juncture  that the  learned counsel  appearing for  the Life Insurance Corporation took exception to such course and yet at  the same time bargained that if remand be considered necessary,  it  should  open  an  opportunity  to  the  Life Insurance Corporation  to raise  its claim  for  damages  in accordance with  law. This  plea was  objected to by learned counsel appearing  for the appellants on the procedural plea that when  the appellate  court had  quashed  the  order  of damages and there had not been any petition preferred by the Life Insurance Corporation before the High Court, the matter could not  be raked  up; all  the more when it concerned the original tenant as well, who had been deleted from the array of parties  before the  learned Single Judge, by consent. In the result, the learned Single Judge held as follows:      ". ....I  am of the clear view that      if at  all  the  matter  is  to  be      remanded to  offer  opportunity  to      the petitioners to prove their case      of lawful sub-tenancy, in the facts      and circumstances  of the case, the      interest of  justice  also  require      that the  Corporation as  a  public      body should  get an  opportunity to      press its claim for tne damages, in      the   event    prove    that    the      petitioners  were   unlawful   sub-      tenants    and     therefore     in

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    unauthorised occupation  of  public      premises."                          (emphasis ours)      As a  result, both  the orders  of the  Estate  Officer dated 17-3-1992  passed in  Cases No.187/187-A  of  1991  in proceedings under  Section 5  and  7  of  the  Act  and  the appellate order  of the  Principal Judge,  City Civil Court, Bombay, in  Miscellaneous Appeal  No.85 of 1992 were quashed in putting  the matter  back  on  the  file  of  the  Estate Officer, to  be dealt  with in  accordance with  law. It was made clear  that the  orders were  set aside only insofar as the appellant  company was  concerned and  not in respect of other parties.      This orders  as said before, was left uninterfered with by the Letters Patent Bench.      The aggrieved appellant Company maintains that the High Court could  not have deprived it of the advantage gained by the orders  of the  Principal Judge,  City Civil  Court,  in rejecting the  petition under  Section 7 of the Act relating to the  question of  damages. It  is asserted  that the High Court has  deprived the  appellant-Company a validly accrued right, gained under the processual law of the country. Under the Act,  Section 2(f)  defines ’rent’  in relation  to  any public  premises,   to  mean   the   consideration   payable periodically for  the authorised occupation of the premises, together with  certain inclusions.  Sections 4 and 5 provide for issuance  of notice  to show-cause  against an  order of eviction and  the  ultimate  eviction  of  the  unauthorised occupant. Section  7 confers  power on the Estate Officer to require payment  of rent  or damages  in respect  of  public premises. If  a person  is an authorised occupant, he can be required to  pay the  rent within  such  time  and  in  such instalments as  may be  specified in the order. Likewise, an unauthorised occupant of any public premises may be required by the Estate Officer to pay damages within such time and in such instalments  as may  be stipulated  in  the  order.  Of course, the  Estate Officer  in assessing damages would have regard to such principles of assessment of damages as may be prescribed as  also to  assess damages on account of use and occupation of such premises. It is thus plain and clear that unless the  occupant is  first adjudged  as an  unauthorised occupant, his  liability to  pay damages  does not arise. In other words,  if he  is an  authorised occupant,  he may  be required to  pay  rent  but  not  damages.  The  quality  of occupation and  the quality  of recompense  for the  use and occupation of  the public  premises go  hand in hand and are inter-dependent. Such is the scheme of the Act.      The inherent  temper of  restraint of  the  High  Court under Article  226 of the Constitution was posed and pressed into  service   by  learned   counsel  for   the  appellants contending that  the High  Court should not have opened up a finalised litigation relatable to damages to barter a remand on  the  question  of  the  quality  of  occupation  of  the appellant  Company,   i.e.  whether  it  was  authorised  or unauthorised. It  was maintained  that by  conducts the Life Insurance Corporation,  respondent, had  submitted to  those orders and  had not  put them  to challenge  in  proceedings under Article 226 and or Article 227 of the Constitution. On that axis  it was  asserted that  the direction on remand to resettle the question of damages may be quashed, maintaining the other  direction and  order with regard to the nature of occupation. Regretfully  we are  not persuaded to adopt such course.      It is  well-settled that  the High Court in exercise of its jurisdiction  under Article  226 of the Constitution can

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take cognisance of the entire facts and circumstances of the case  and  pass  appropriate  orders  to  give  the  parties complete and  substantial justice.  This jurisdiction of the High Court,  being extraordinary,  is  normally  exercisable keeping in mind the principles of equity. One of the ends of the equity  is to promote honesty and fair play. If there be any unfair  advantage gained  by  a  party  priorty,  before invoking the  jurisdiction of  the High Court, the court can take into  account  the  unfair  advantage  gained  and  can require the  party to  shed the  unfair gain before granting relief. What  precisely has  been done by the learned Single Judge, is clear from the above emphasised words which be re- read with  advantage. The  question of  claim to damages and their ascertainment  would only  arise in  the event  of the Life Insurance  Corporation, respondent, succeeding to prove that the  appellant Company  was an  unlawful sub-tenant and therefore in  unauthorised occupation of public premises. If the finding  were to  go in  favour of the appellant Company and it  is proved to be a lawful sub-tenant and hence not an unauthorised occupant,  the direction  to adjudge  the claim for damages would be rendered sterile and otiose. It is only in the  event of  the appellant  Company being held to be an unlawful sub-tenant  and hence an unauthorised occupant that the  claim   for  damages  would  be  determinable.  We  see therefore no fault in the High Court adopting such course in order  to  balance  the  equities  between  the  contestants especially when  it otherwise  had power  of superintendance under Article 227 of the Constitution in addition. We cannot be oblivious  to the  fact that  when the  occupation of the premises in  question  was  a  factor  in  continuation  the liability to  pay for  the use and occupation thereof, be it in the  form of  rent or  damages,  was  also  a  continuing factor. The  cause of  justice, as viewed by the High Court, did clearly  warrant that  both these  questions  be  viewed inter-dependently. For  those who  seek equity  must bow  to equity.      Besides, it  is noteworthy  that the Principal Judge of the City  Civil Court, had negatived the claim of damages on taking a  technical view  of the  matter because in his view the assessment  had been  made more  no assumptions  than on concrete evidence  which was required to be adduced. Nowhere was the  finding recorded  by that  Court that  damages were altogether not  due or  that the  appellant Company  was not liable; the  period involved  therein being from 1-3-1979 to 28-2-1992. Much  time has elapsed thereafter. The respondent Company continues  to be  in possession  of the  premises in question. It  would in any case be liable to pay for the use and occupation  thereof and that liability was only required to be  given a  legal, character, depending upon the quality of occupation.  The High  Court, in  our view,  committed no wrong in  putting the  negated claim of damages on the scale of justice as a balancer, before granting relief, in setting aside the  orders of  eviction and  effecting a  remand, for fresh disposal in accordance with law.      For the  foregoing reasons, we find no case is made out for our  interference. As a result, this appeal fails and is hereby dismissed, with costs.