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TMI Blog2003 (8) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... and under section 482 of the Cr. P. Code to challenge both these orders. 2. The above mentioned complaint was filed by Ramanath Gorakhnath Ghag, who was at the relevant time working as security officer in the Bombay Dyeing and Manufacturing Company Ltd. The said company owns a residential building known as Spring Mills Chawls situated at G.D. Ambekar Marg. Naigaum, Mumbai. It was stated in the complaint that the petitioner-accused was in the employment of the said company as a worker from 12-12-1966 to 11-10-1988 and that as per the policy of the company, he was allotted room No. 15 of Chawl No. 5(E), G.D. Ambekar Marg, Naigaum as an employee of the company for his use and occupation till such time as he would be in employment of the company. It appears that the company used to charge certain amount towards maintenance charges. The petitioner resigned from the service on 11-10-1988 and, therefore, he was bound to hand over possession of the said room but he did not do so in spite of the company s letter dated 16-12-1988, calling upon him to vacate the said room. It was alleged that the petitioner continued to hold wrongful possession of the suit room and thereby, he committed an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. 4. As regards the first contention it may be noted that the complaint against the petitioner was filed by one Mr. Ramnath Gorakhnath Ghag, who was at the relevant time security officer in the company. The cause of the title of the complaint does not indicate the name of the company as the complainant. It is, therefore, contended by Shri Jamdar that the complaint is not at all maintainable. It is true that in the cause title the name of the company to whom the room in question belongs should have been cited as the complainant but it cannot be ignored that para 1 of the complaint, makes it clear that the said R.G. Ghag has filed the complaint not for himself but on behalf of the company under an authority and in his representative capacity In this respect, Shri Naphade pointed out that on 25-4-1994 the Board of Directors of the Company had passed a resolution to grant a power of attorney in favour of R.G. Ghag, the security officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of Shri Jamdar is based on two notifications dated 20-3-2001, 20-6-2002 issued by the State Government in exercise of its power under section 37(1), read with section 154 of the MRTP Act. It may be noted that under the said Act, the Government has sanctioned the Development Control Regulations for Greater Mumbai, 1991. The Regulation 58 deals with the development and redevelopment of lands of Cotton Textile Mills. Clause 7(a) of the Regulation 58 provides as under: (7) Notwithstanding anything contained above (a) if and when the built up areas of a cotton textile mill occupied for residential purposes as on the 1st of January, 2000 are developed or redeveloped, it shall be obligatory on the part of the land owner to provide to the occupants in lieu of each tenement covered by the development or redevelopment scheme, free-of-cost, an alternative tenement of the size of 225 sq. ft. carpet area: It appears that in spite of the said provisions, certain complaints were received by the Government about eviction of the occupants of the tenements in the premises of the Cotton Textile Mills and, therefore, the Government thought it necessary to give protection to the occupants of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Companies Act. According to Shri Naphade, if the State Legislature cannot modify or repeal any of the provisions of the Companies Act, then the notifications issued under the MRTP Act, cannot do so and they are subject to the provisions of the Companies Act. The third submission of Shri Naphade in this respect is that the notifications in question are delegated legislation and it is settled law that delegated legislation cannot have any retrospective effect. He further submitted that a central legislative enactment cannot be affected or altered by the State Government notifications issued under the State law. The fifth and last submission of Shri Naphade is that the Development Control Regulation 58(7) necessary- ily postulates that the occupation must be lawful and that the said Regulation cannot legalise illegal occupation of the premises. 8. A careful consideration of all these submissions made by Shri Naphade would show that it has much force. It need not be disputed that the Companies Act, which is a central enactment prevails over the notification issued by the State Government under the MRTP Act. It cannot be ignored that the petitioner was a mere licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rent Act and relied upon the decision of the Supreme Court in Jagdish Chandra Nijhawan v. S.K. Saraf AIR 1999 SC 217. However, having regard to the facts in that case, it is obvious that the reliance upon it is totally misconceived and irrelevant. In that case the facts were that the appellant was appointed as Managing Director of the Company for a limited period and provided with rent-free furnished flat till he was with the said company. There was an agreement of service which contained certain terms and one of such terms was as under : (i) If such termination be at the instance of the company, then the employee and/or the employee s wife shall continue to enjoy rent free accommodation during their respective lives but only until the employee takes up any other profession, vocation or business. The appellant s services were terminated by the company and he was called upon to hand over possession of the flat. Since, he failed to do so; the company filed a criminal case against him for the offences under sections 406, 408 and 409 of the I.P. Code and under section 630 of the Companies Act. The company also filed a separate suit for recovery of possession of the flat. It was in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an ex-employee of the respondent company, conducting dispensary in the premises of the company under an agreement of leave and licence. After termination of his employment, the petitioner denied that he was permissive user of the premises and contended that he was tenant of respondent-company. The company then filed criminal case against him under section 630 of the Companies Act. Before that the respondent-company had also filed a suit for possession in the Court of Small Causes. On these facts, the learned Judge held that the petitioner had obtained the premises as an employee of the company and that his occupation of the premises after termination of the employment was without any lawful authority and it was wrongful. Although the issue of tenancy of the petitioner was common before the Civil Court and the Criminal Court, the learned Judge declined to stay the prosecution, observing that civil and criminal process works in different spheres. It was further observed that if the premises were given to the petitioner as medical officer and if they were to be enjoyed by him for a particular purpose and with special permission to the respondent-company, as mentioned in the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a similar question about the tenancy of the petitioner-accused was raised and it was contended that the petitioner was entitled to the protection of the Bombay Rent Act and that the Criminal Court had no jurisdiction to entertain and continue the proceedings under section 630 of the Companies Act. This contention was, however, rejected and it was pointed out that plea of tenancy was not at all open to the facts of that case, when the flat in question belonged to the company and it was occupied by the petitioner during the tenure of his employment, After the termination of his service, he could not claim to continue to occupy the premises on the ground that he was a tenant thereof. It was observed that while considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea of tenancy is based, and if on those facts, no plea of tenancy can be raised, such a plea cannot be entertained. 11. Shri Jamdar relied upon the decision in Chinnupashabi w/o. Hasan Jahagirdar v. Fatesingh Shikshan Sanstha: 1999 (3) Mh.L.J. 167, wherein the deceased was working as a teacher in the school run by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , not inclined to accept the interpretation which Shri Naphade has tried to place. In my view the word may used in sub-section (2) deserves to be given its plain and grammatical meaning. It may be noted that the offence of wrongfully withholding of property can be in respect of any property of the company whether movable or immovable and it is just possible that by the time the employee is held guilty, he may have already lost, spent disposed of the movable property given in his possession. In such an eventuality the Court will not be in a position to order the officer or employee to deliver it up or to refund to the company. The Legislature appears to be alive to such an eventuality and,therefore, purposely used the word may instead of the word shall in sub-section (2) of section 630. It is, therefore, discretionary and not mandatory upon the Court to pass an order under sub-section (2) of section 630. In my opinion, in the facts and circumstances of the case both the Courts below have correctly used their discretion in favour of the company and directed the petitioner to hand over possession of the room who has been wrongfully withholding it for a number of years. Hence, I do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend to two years if he wants to withhold possession of the premises to him. In view of this position, it is not possible to accept the submission of Shri Jamdar. 14. The last contention of Shri Jamdar is with regard to the fact that during the course of examination-in-chief of P.W. 1, the learned Magistrate called upon the petitioner-accused to admit certain documents which were tendered by its witness. In this contention it may be noted that section 294 of the Cr. P. Code, prescribes such a procedure for admitting the documents and objecting to dispense with the formal proof to save the time. There might have been some irregularity on the part of the learned Magistrate in following procedure prescribed by section 294, but it is not pointed out on behalf of the petitioner as to how that has caused prejudice to him. At any rate, the petitioner was not forced to admit the said documents. It was on his admission that the documents came to be accepted. There is, therefore, no substance in this last submission also made on behalf of the petitioner. 15. Taking into consideration the above mentioned objections, I am of the opinion that there is no merit in the challenge given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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