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Bombay Advocates Association v/s Prabhakar Mudura Puthran

    Civil Revision Application No. 645 of 2015

    Decided On, 08 August 2017

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MRS. JUSTICE MRIDULA BHATKAR

    For the Applicant: P.K. Dhakephlakar, Sr.Advocate with Suneel Mogre, Manoj Mane i/b Chandrakant Chavan, Advocates. For the Respondent: Pradeep Thorat i/b Aanchal A. Jain, Advocates.



Judgment Text

1. In this Civil Revision Application, the judgment and order dated 31.8.2015 passed by the learned judge of the City Civil Court, Bombay in S.C. Suit No.3038 of 2012 is challenged. The applicant is an association of the advocates of Bombay especially working in the Small Causes Court, Mumbai, having head office at Small Causes Court, second floor, L.T. Marg, Mumbai. The respondent is the original plaintiff, who has filed H.C. Suit No.795 of 2012 u/s 6 of the Specific Relief Act that he was forcibly dispossessed by the members of the defendant-association on 30.9.2011 and, therefore, prayed that the possession of the said suit premises i.e., canteen, situated on 3rd floor of the Annex building, Small Causes Court, L.T. Marg, Mumbai, is to be handed over him. The suit was decreed by order dated 31.8.2015 by the learned Judge of the City Civil Court, Mumbai directing defendant Nos.1 to 5 to deliver the possession of the suit premises i.e., the canteen, in favour of the plaintiff within two months from the date of the passing of the judgment and decree. The said order was challenged by filing this Civil Revision Application on 13.10.2015.

2. The admitted facts are summarised as follows:

The applicant is an association of the advocates practising in the Small Causes court and in the year 1985, they allowed the original plaintiff/respondent to run the canteen on the third floor of the Annex building on terms and conditions which varied from time to time. The canteen premises belonged to government coming under the Public Works Department. The respondent was providing food at subsidised rate to the members of the bar association. However, he did not pay the electricity bill and water charges and therefore, in the year 2002, the Public Works Department raised a bill of Rs.6,97,530.60 for the same. On receiving notice from Public Works Department to pay electricity bill and water charges and otherwise to vacate the premises, the applicant Association filed Writ Petition No.2959 of 2002 in the High court of Bombay challenging the eviction notice issued by the Public Works Department. By order dated 10.12.2002, the Division Bench of this Court passed interim order and gave interim stay to the notice of eviction

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against the Public Works Department and directed the applicant – association to deposit Rs.50,000/- towards the arrears and further directed that thereafter, the Association from December, 2002, shall deposit rent @ Rs.2775/- p.m. towards the canteen of the third floor and also fixed the rate of rent amount towards the canteen of 4th floor but that is not the subject matter of this petition. It further gave directions to give undertaking that the Association shall run the canteen on no profit no loss basis and the accounts pertaining to the canteens are to be maintained and audited properly. Earlier in the beginning, the respondent/original plaintiff was paying a monthly compensation of Rs.650/- per month in the year 1980, which was increased and thereafter, on demand of the Association, the plaintiff started paying Rs.3,000/- per month instead of Rs.650/- per month. The said amount was further increased and the plaintiff was paying Rs.4,500 per month when the cause of action arose in June, 2011. In June, 2011, the amount of Rs.5,50,396/- was yet to be cleared towards electricity charges and therefore, the Association directed the plaintiff to pay the said amount and otherwise, they asked him to vacate the premises which the original plaintiff refused to do so.3. As per the case of the plaintiff, on 30.9.2001, he put his lock and left the premises and thereafter putting lock on that lock, the applicant – Association took forcible possession of the suit premises wherein all the gazettes belonging to him like gas, mixer, refrigerator, utensils and other goods purchased by him and owned by him were lying. Against the possession, the original plaintiff filed S.C. Suit No.3038 of 2012 (HC Suit No.795 of 2012) u/s 6 of the Specific Relief Act seeking possession of the suit premises i.e., the 3rd floor canteen. The Bar Association i.e., defendant Nos.1 to 5, filed a written statement and submitted that the lawful owners of the premises is the Public Works Department of the State of Maharashtra and the learned Chief Judge of the Small Causes Court are the lawful owners and possession of the suit premises. It was contended that the juristic possession of the premises is with the Office of the Court Keeper of the Small Causes Court. The applicant Association has admitted that the plaintiff was allowed to use the suit premises for the purpose of running canteen facility, however, all allegations of forcible dispossession are strongly denied by the Bar Association. The learned Judge framed the issues after considering the pleadings & contentions and after recording evidence, decreed the suit. The learned Judge of the City Civil Court, Mumbai, by his judgment and order dated 31.8.2015 directed that defendant Nos.1 to 5 shall deliver possession of the suit premises i.e., the canteen, 3rd floor, in the annexe building of the Small Causes Court, Mumbai in favour of the plaintiff within two months from the date of the judgment.4. The learned Senior Counsel for the Applicant has submitted that the plaintiff was never in possession of the suit premises but he was given a contract to run the canteen on the third floor. He did not share the electricity charges and therefore, his services were discontinued. The learned Counsel has submitted that the learned Judge has erred in observing the respondent was in possession of the suit premises and is entitled to restoration of the possession. The learned Senior Counsel submitted that this observation is contrary to the law laid down by the apex Court. He submitted that positive case of the applicant is that though the respondent was in possession of the suit premises, it was not in exclusive possession. The admissions given by the respondent in his evidence that he was working as a canteen contractor during the Court time and the keys of the premises were with the Court Keeper should have been properly appreciated. He further pointed out that the two exhibits i.e., exhibits 9 and 10 are not disputed by the applicant but these letters cannot constitute any contract between the parties as observed by the learned trial Judge. It is further submitted that in fact, the plaintiff was not ready to share the electricity charges which was exhorbitant and so, the Association rightly discontinued his service and at that time, the respondent/original plaintiff voluntarily handed over the keys to the Bar Association. He has submitted that the judgment passed by the learned Judge needs to be set aside. He further submitted that today, the other person is employed to run the canteen, who is paying the electricity charges.5. Learned Counsel for the respondent / original plaintiff has submitted that the applicant has entered into an agreement. He has submitted that the premises is owned by Public Works Department, State of Maharashtra and since last 31 years prior to filing of the suit, the plaintiff was serving all the catering items to the members of the Bar Association. He was put in possession of the suit premises in the year 1980 on term of payment of Rs.650/- per month and at the time of his forcible eviction, he was paying Rs.4,500/- per month. Thus, he was a licencee in the suit premises. He relied on the two letters i.e., letter dated 12.4.1985 (exhibit 9) and 13.10.1989 (exhibit 10) which were issued by the applicant/defendant No.1 thereby confirming that the plaintiff was carrying on business of canteen in the suit premises and the possession of the suit premises was handed over to the plaintiff. He categorically denied that the plaintiff was required to pay electricity charges or water charges or other charges separately in addition to payment of his monthly charges of Rs.4,500/- per month. He further submitted that he was serving food to the members of the applicant/staff at a subsidised rate and gave uninterrupted service. The applicant made an illegal demand of Rs.5,54,000/- towards electricity and water charges and when the plaintiff denied to pay so, he was forcibly dispossessed from the premises. He submitted that he has given in his evidence specifically that at 7pm on 30.9.2011, he had locked the suit premises and was going home. However, the applicants put their lock on the suit premises illegally and forcibly broke open the lock put by the plaintiff. All the furniture, fixtures, refrigerator, food items, grocery belonged to him. He also lodged a police complaint with the L.T. Marg police station.6. In support of these submissions, Mr.Thorat relied on the Division Bench judgment of this Court in Writ Petition No.2959 of 2002 (Bombay Advocates Association & ors. vs. State of Maharashtra & Ors.). He submitted that in that case, the Division Bench has specifically mentioned that in the meanwhile possession of the canteen situate on 3rd floor, New building at Dhobhi Talao, Canteen of 4th floor, Bhaskar building at Bandra and the Canteen at Dhobhi Talao shall be taken from the petitioner association subjection to conditions.7. Heard submissions. Perused the order under challenge, documents, plaint, written statement and heard the learned Counsel for both the sides. Read over the evidence of the witnesses. Admittedly, the suit premises i.e., the canteen, is owned by the Public Works Department of State of Maharashtra. It is also a fact that the original plaintiff was allowed to run the business of canteen in the said premises. He was paying some charges/compensation for allowing him to run his business in the Court premises. That apart, he was providing all food items to the Members of the Bar Association and the Court staff at sub-sidised rates.8. Mr.Thorat relied on the order of the Division Bench of this Court in Writ Petition No.2959 of 2002 dated 10.12.2002 to show that the Association was directed to deposit rent @ Rs.2775/- per month towards the canteen on 3rd floor building with the PWD. It was further held that the suit canteen and the other canteens are run by the Association on 'no profit no loss' basis and the accounts pertaining to the said canteens are maintained and audited properly. The operative portion of the said order is thus reproduced as follows:“(i) The petitioner Association deposits further sum of Rs.50,000/- in two instalments of Rs.25,000/- each towards arrears of rent, electricity charges and water charges in respect of these three canteens. The first instalment of Rs.25,000/- shall be deposited by 31.01.2003 and the second instalmentff of Rs.25,000/- by 31.03.2003.(ii) The petitioner Association from the month of December 2002, deposits rent at the rate of Rs.2775/- per month towards canteen on 3rd Floor, New Building at Dhobi Talao and rent of Rs.5,500/- towards canteen on 4th floor, Bhaskar Building at Bandra. The aforesaid rent shall be deposited by the petitioner Association every month with the concerned authorities on or before 15th of each succeeding month.(iii) The petitioner Association pays/deposits in time the water and electricity charges as per the separate meters already installed.(iv) The first petitioner Association through its President files an undertaking before this Court within two weeks from today that all the three canteens aforesaid are run by the first petitioner Association on “no profit no loss basis” and accounts pertaining to the said canteens are maintained and audited properly.”9. Thus, the order of the Division Bench in fact does not support the case of the plaintiffs. The said Writ Petition was between the Bar association of Small causes Court at Dhobi Talao and at Bandra and the PWD. By that order, the Division Bench has protected the possession of the canteen premises with the Bar Association. However, the Division Bench has imposed a very important condition on the association to give an undertaking that they shall run the canteen on no profit no loss basis and the accounts pertaining to the said canteens are maintained and audited properly. So, it is binding on the association to maintain the canteen accounts and get it audited and they should run the canteen on no profit no loss basis. This clearly shows that the Division Bench always intended that the respective Bar Association shall not part with the possession of the canteen premises but those associations are required to give service to the members of the Bar of food items on no profit and no loss basis.10. Canteens run by the contractors in the Court premises is a routinely disputed issue, which is always referred to the Principal District Judges or the Chief Judges by the respective Courts. Canteen is a necessity in each and every Court. The Court staff and the members of the Bar including the Judges are required to work for long hours. Especially the members of the Bar and the Court staff attend Court much before the actual Court hours and stay for longer periods on the campus after the Court hours. It is a necessity especially also for the litigants who come from other Districts and distant Talukas and villages. In all the Courts, the contractors are appointed by Bar Associations or by the Associations of the Court staff to give food service to the litigants, members of the Bar and the Court staff. The contractor remains there for years together and then, tries to create his possessory right in the canteen. Considering the nature of the Court work where many stakeholders like Bar, Bench, Court staff, litigants are involved in day to day activities, similar to Canteen, Press room, Court clerk room, photocopy machines, writers, etc. are also essential services. Therefore, some persons are allowed to use particular space in the Court. These persons in lieu of services run their business, earn livelihood. However, it cannot be said that they are in possession of the said earmarked Court premises exclusively. It is made clear that in the Court premises, no person can claim possession but it is always a temporary day to day or periodic allowance that is given to the said person with the permission of the Principal District Judge or the Chief Judge of the said Court. So is the case of the Bar Association and the canteens run by them. The payment of electricity/water charges of the Court premises is also often disputed by the Bar association and canteen, however, it can be settled administratively by the order of the Hon'ble the Chief Justice or by the Principal District Judge or the Head of the Institution.11. On query, I could lay my hands over the guidelines for promoting photocopy, fax, STD, PCO booths, canteen in the court premises in view of the technological developments, framed by the High Court on 2.3.1993. It is useful to reproduce the terms and conditions of the same as under:“Guidelines for permitting Xerox, Fax, S.T.D., P.C.O., etc. Booths and Canteen in the Court premises in view of technological developments.Regarding P.C.O./S.T.D. telephone booths1) If the Department of Telecommunications installs public phones/S.T.D. Booths in Courts, permission should not be given to any private party.2) If the Department of Telecommunications is not in a position to install P.C.O./S.T.D., permission should be given to private parties for starting a telephone or S.T.D. Booth near the Bar room at a place to be decided by the concerned District Judge.3) The booth should consist of 4' x 4' space for the Telephone Operator and cabin of 3' x 3'.4) No other facility or amenity should be given for running the said booth.5) The Booth Operator should not be allowed to stray even an inch beyond the space so outlined.6) The timing of the booth should be from 9.30 a.m. to 6.30 p.m. in general. However, the P.C.O. facilities may be permitted till 7.00 p.m. unless the District Judge/Presiding Judge of the respective place finds practical difficulties in doing so.7) Bar Association should not be permitted to run such booths.Regarding Fax facilitiesS.T.D. Booth Operator may be allowed to provide fax facilities in the space so allotted to him.Regarding Installation of Xerox Machine.Permission to install xerox machines may be given directly to licensee and not to Bar Association by concerned District Judges on the following conditions:1) The xerox machine should be of a reputed company.2) The rate for xeroxing should be fixed by negotiationsby the District Judge/Presiding Judge of the Court concerned and the licensee.3) The minimum space required for running Xerox machine should be provided preferably near the Bar Association.4) The Xerox Operator would be under an obligation to do copying work of the Courts at such rate as may be fixed by the District Judge or Presiding Judge of the Court as and when xerox machines in the Court are out of order, or not available, or burden on the official machines is heavy. In such cases, official of the Court would take the documents to be copied to the xerox operator and safely bring them back to the copying section. The xerox operator would give preference to the Court work. Initially this service of getting copying work done in private machines may be tried on experimental basis in Bombay.Regarding Canteens:1) No private person or contractor should be allowed to run a canteen in Court premises directly. If such permission is already granted to private person/contractor, the same should not be renewed, after expiry of the term, by the District Judge/Presiding Judge at respective places.2) A Co-operative Society of staff members or Bar Association, as the case may be, at the respective places may be allowed to run the said canteens as per usual terms and conditions and undertakings.3) In case of new proposals, a Co-operative Society of staff members or Bar Association may be allowed to run Court canteen on usual terms and conditions and undertakings only, if they run such canteens themselves by employing servants and not by engaging a contractor.4) In case the Co-operative Society of staff or Bar Association is not willing or available to run canteen, private parties may be considered to run the canteen on the terms and conditions laid down by the High Court.5) The licensees of the canteens should be prohibited from displaying posters, placards or sign boards advertising food items and drinks other than those prepared in the premises.6) There should not be any commercial advertisement by any company of its food products upon the premises of the canteen which are part of the Court building.General GuidelinesIn all these cases -1) The licensees would have to pay licence fees for use of the premises at such rates as may be fixed by the P.W.D.2) The licence would be for a period of one year, revocable by one month's noftice any time and renewable at the end of each year at the option of the District Judge or Presiding Judge of the Court concerned. After acquainting the High Court of relevant facts, the District Judge/Presiding Judge would have the option to revoke the licence without any notice if any breach of the terms of undertakings is noticed.3) The decision of the District Judge/Presiding Judge in the matter shall be final.(Sangitrao S. Patil)Dated: 27th March, 2001. Additional Registrar”12. These guidelines dated 2.3.1993 were again confirmed by the Circular dated 27.3.2001 issued by the Additional Registrar. These guidelines clear all doubts about as to who is in possession of the Court premises or the ear-marked portion in the court premises. At the time of hearing the matter, these guidelines or the policy of the administration of the High Court was not brought before the trial Court and thus, the trial Court had no opportunity to deal with it. This is the correct legal position in respect of possessory rights of the canteen premises in the Court and, therefore, in order to set right the view taken by the trial Court in the present matter are reproduced and relied on by me. The original plaintiff, thus, was allowed to run the canteen in the Court premises on the third floor of the Small Causes Court and he was paying some amount by way of compensation to the Bar Association. He might have kept his utensils, refrigerator, gas cylinder, etc. owned by him to facilitate to run the canteen and which are to be handed over to him, if not, by the application – Association. The respondent has right to claim his articles if owned by him. However, he cannot claim any possessory right in the canteen in the Court premises as he was put in possession temporarily for a certain period every day. He was never in exclusive possession and the possession whatever he had, was of a temporary nature for a few hours in a day, for some period. U/s 6 of the Specific Relief Act, a person who is in a de-facto possession is entitled to restoration, however, the de-facto possession is not to be for such a temporary period but it should be a settled possession. Where a person is allowed to run a particular business in government premises for some time, especially in the Court premises, a question of creation of possessory right of any other person than a head of the establishment i.e., a District Judge, is illegal and not permitted and in such a cases, the relief u/s 6 of the Specific Relief Act cannot be granted. Neither the Bar Association nor the Contractor are in possession of any ear-marked portion in the Court premises and thus, there is no question of restoration of the plaintiff in the said canteen premises.13. With the above observations, the impugned judgment and order of the trial Court is set aside. Civil Revision Application is allowed.14. The learned Counsel has requested that this order be stayed for eight weeks as the respondent wants to challenge it in the Supreme Court. I am informed that one another contractor is running the canteen and paying electricity and water charges and in view of this, stay refused.
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