IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 1708 of 1993(C)
1. Y.N.SARASWATHI
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.V.GIRI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :14/01/2009
O R D E R
K.BALAKRISHNAN NAIR &
K.SURENDRA MOHAN, JJ.
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O.P. NO. 1708 OF 1993 - C
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Dated 14th January, 2009.
JUDGMENT
Balakrishnan Nair, J.
The petitioners are the tenants of a building complex in a plot of
30 cents of land. The owner of the building was in default to Vijaya
Bank, Broadway Branch, Ernakulam, represented by the 5th respondent
Manager. The above land and building complex were brought to sale
by the Bank in execution of the decree obtained by it against the owner.
The Bank itself purchased the said property. On finding that the
buildings are occupied by tenants, symbolic delivery of the property
was made by the execution court to the Bank. The petitioners
continued as tenants under the Bank. The Bank wanted the buildings
for its own use. Initially, the Bank issued a notice, terminating the
lease and requesting to give vacant possession of the premises to it.
The proposal was to proceed against them under the provisions of the
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Kerala Buildings (Lease and Rent Control) Act. Later, the Bank has
chosen to invoke the provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. The Estate Officer of the Bank
was moved. The said officer, after following the procedure under the
above said Act and hearing both sides, passed Ext.P8 order on
20.6.1992, directing the petitioners to give vacant possession of the
premises. Aggrieved by that order, the petitioners invoked the
statutory remedy available to them by appealing to the District Court.
The said court dismissed the appeal by Ext.P10 judgment. Challenging
Exts.P8 and P10 and also Ext.P5 notice issued by the Estate Officer,
the 4th respondent herein, this Original Petition was filed.
2. The petitioners contended that the provisions of the Kerala
Buildings (Lease and Rent Control) Act will prevail over the provisions
of the Public Premises (Eviction of Unauthorised Occupants) Act,
1971, as the former Act has the assent of the President. This
submission is made, relying on Article 254(2) of the Constitution of
India. Relying on Exts.P1 and P2 orders, it is submitted that the
petitioners are genuine tenants under the original owner and therefore,
OP 1708/93 3
resort to the proceedings under the Central Act to evict them, is
unjustified.
3. In view of the point raised by the petitioners regarding the
supremacy of the Kerala Buildings (Lease and Rent Control) Act over
the provisions of the aforementioned Central Act, the learned Single
Judge referred the O.P for decision by the Division Bench. But, in
view of the subsequent decisions of the Apex Court, including the one
in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn [(2002)8 SCC
182], the contentions of the petitioners regarding the efficacy of the
Kerala Act, even in the face of the Central Act, are liable to be rejected
and we do so. But, during the pendency of the Original Petition, the
Central Government passed a resolution dated 30.5.2002 and published
the same in the gazette dated 8.6.2002, formulating certain guidelines
to be followed by public sector undertakings, including the 5th
respondent’s Bank, in the matter of employing the provisions of the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971, to
evict genuine tenants under them. The said guidelines read as follows:
OP 1708/93 4
“1. The question of notification of guidelines to
prevent arbitrary use of powers to evict genuine tenants
from public premises under the control of Public Sector
Undertakings/financial institutions has been under
consideration of the Government for some time past.
2. To prevent arbitrary use of powers to evict genuine
tenants from public premises and to limit the use of powers
by the Estate Officers appointed under section 3 of the PP
(E) Act, 1971, it has been decided by Government to lay
down the following guidelines:
(i) The provisions of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 (P.P.
(E) Act, 1971] should be used primarily to evict
totally unauthorised occupants of the premises of
public authorities or subletees, or employees who
have ceased to be in their service and thus ineligible
for occupation of the premises.
(ii) The provisions of the P.P.(E) Act, 1971
should not be resorted to either with a commercial
motive or to secure vacant possession of the premises
in order to accommodate their own employees, where
the premises were in occupation of the original
tenants to whom the premises were let either by the
public authorities or the persons from whom the
premises were acquired.
(iii) A person in occupation of any premises
should not be treated or declared to be an
unauthorised occupant merely on service of notice of
termination of tenancy, but the fact of unauthorisedOP 1708/93 5
occupation shall be decided by following the due
procedure of law. Further, the contractual agreement
shall not be wound up by taking advantage of the
provisions of the P.P.(E) Act, 1971. At the same time,
it will be open to the public authority to secure
periodic revision of rent in terms of the provisions of
the Rent Control Act in each State or to move under
genuine grounds under the Rent Control Act for
resuming possession. In other words, the public
authorities would have rights similar to private
landlords under the Rent Control Act in dealing with
genuine legal tenants.
(iv) It is necessary to give no room for
allegations that evictions were selectively resorted to
for the purpose of securing an unwarranted increase
in rent, or that a change in tenancy was permitted in
order to benefit particular individuals or institutions.
In order to avoid such imputations or abuse of
discretionary powers, the release of premises or
change of tenancy should be decided at the level of
Board of Directors of Public Sector Undertakings.
(v) All the Public Undertakings should
immediately review all pending cases before the
Estate Officer or Courts with reference to these
guidelines, and withdraw eviction proceedings
against genuine tenants on grounds otherwise than as
provided under these guidelines. The provisions
under the P.P.(E) Act, 1971 should be used
henceforth only in accordance with these guidelines.
3. These orders take immediate effect.”
4. The learned counsel for the petitioners submitted that the
petitioners are entitled to get the protection of the above said
OP 1708/93 6
guidelines. The Bank is bound to review all pending cases before the
Estate Officer and Courts with reference to the guidelines and decide
whether the eviction proceedings should be withdrawn or not.
5. We heard the learned standing counsel for the Vijaya Bank, on
this point. The learned counsel submitted that the guidelines issued by
the Central Government are only to guide and not to govern. In other
words, they are not binding on the Public Sector Banks, it is submitted.
6. We feel that Vijaya Bank being a public sector Bank, cannot
ignore the guidelines issued by the Central Government. The
provisions of the Act constituting the said Bank also enable the Central
Government to issue guidelines. The above quoted guidelines only
stipulate that the public sector undertakings and other financial
institutions should follow a fair procedure and should not evict genuine
tenants for extraneous or ulterior purposes. Therefore, we are inclined
to direct the competent authority of the Vijaya Bank to examine the
case of the petitioners in the light of the above quoted guidelines.
Clause 2(v) of the guidelines specifically stipulates that matters
pending before the courts are also liable to be reviewed. Therefore, the
OP 1708/93 7
competent authority of the Bank is directed to take a decision on the
claim of the petitioners for the benefits of the above quoted guidelines.
The said authority shall issue notice to the petitioners, hear their
objections and take a decision in the matter within two months from
today. If the petitioners present a copy of this judgment before the 5th
respondent within one month from today, further proceedings pursuant
to the impugned orders in this Original Petition will remain in
abeyance. When a final decision is taken as directed above, if it is
found that the petitioners are not entitled to get the benefits of the
above guidelines, further action pursuant to Exts.P8 and P10 could be
taken to evict them. It is made clear that we have only said that the
Bank is bound to go by the guidelines. It is also clarified that we have
not expressed any opinion on the claim of the petitioners that they are
entitled to the benefits under the said guidelines. The same shall be
decided by the Bank, based on the materials placed before it by the
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petitioners.
The Original Petition is disposed of as above.
K.BALAKRISHNAN NAIR, JUDGE.
K.SURENDRA MOHAN, JUDGE.
Nm/