Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
M.A.No.112/19 M.A.No.145/19
Received on : 05.04.2019 10.4.2019
Registered on : 05.04.2019 01.8.2019
Decided on : 01.03.2022 01.03.2022
Duration : Y:02 M:10 D:25 Y:02 M:10 D:19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.112 of 2019
(CNR No.MHCC010038432019)
Zohrabibi Ismail Khan
C/o Ismail Khan and Sons,
7276, Sattar Bldg.
Opp. Grant Rd. Station (E),
Mumbai 7
And
C/o Mohammad Hanif Ismail Khan C.A.
1st floor, Tanker Villa, August Kranti Marg,
Near Gowalia Tank Maidan, ..Appellant
Mumbai 400 0036 Org. Respondent
Versus
The Board of Trustees of the Port of Mumbai
Vijay Deep Bldg.,
Mumbai Port Trust, S.V. Marg, ..Respondent
Ballard Estate, Mumbai 400 001 (Org. Petitioner)
Ld. Adv. Mr. Sachin Gelye for appellant
Ld. Counsel Mr. Nikunj Mehta a/w Adv.Ms. Annamariya Gonsalves i/b
Motiwala & Co. for respondent/BPT.
AND
Misc. Appeal No.145 of 2019
(CNR No.MHCC010040062019)
1. Ojus Marketing Management Pvt. Ltd.
Acting through its Director Bhavesh Patel
Shop Nos.1,2 and 3 Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400 001
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2. Nisha Gangadhar Shukla
Age 39 years, Occ: Housewife,
Shop No.8 Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
3. Gangadhar Shukla
Age 44 years, Occ:Business
Shop No.9, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
4. Kantilal Gangji Satra
Age 58 years, Occ: Business,
Shop Nos.11, 12 and 13,
Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
5. Maaz Qureshi
Age 55 years, Occ: Business,
Office No.15, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
6. Mustafa Bamboat
Age 52 years, Occ: Business,
Office No.16, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
7. Shirish Vinod Shah
Age 68 years, Occ: Business,
Office No.17, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
8. Vinodbhai Ankhiwala
Age 64 years, Occ: Business,
Office No.19, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
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9. Arvind Amarsiha Bafna
Age 53 years, Occ: Business,
Office No.20, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
10. Jayantilal Gangji Satra
Age51 years, Occ: Business,
Office No.24, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
11. Ashishkumar Divakarnath Tiwari
Age 35 years, Occ: Business,
Office No.25, Engineer Bldg.,
288, Shahid Bhagat Singh Marg,
Mumbai 400001
12. Mohammad Shafi Shaikh
Age 66 years, Occ: Business,
Office No.30, Engineer Bldg.,
288, Shahid Bhagat Singh Marg, Mumbai 400001
13. Parasharam Tukaram Huddar
Age 57 years, Occ: Business,
Office No.34, Engineer Bldg., ..Appellants
288, Shahid Bhagat Singh Marg, (Originally not parties,
Mumbai 400001 appealing as
aggrieved parties)
Versus
1. The Board of Trustees of the Port of Mumbai
Vijay Deep Bldg.,
S.V. Marg, Ballard Estate,
Mumbai 400 001
2. Zohrabibi Ismail Khan
C/o Ismail Khan and Sons, ..Respondents
7276, Sattar Bldg. (Respondent No.1 was Org.
Opp. Grant Rd. Station (E), Petitioner and Respondent No.2
Mumbai 7 was org. Respondent before
Estate Officer.)
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Ld. Adv. Mr. Prerak Choudhary for appellant
Ld. Counsel Mr. Nikunj Mehta a/w Adv.Ms. Annamariya Gonsalves i/b
Motiwala & Co. for respondent No.1/BPT.
Ld. Adv.Mr. Sachin Gelye for respondent No.2.
Coram : H.H.THE PRINCIPAL JUDGE
URMILA S. JOSHIPHALKE
(C.R.NO.19)
Dated : 1st March, 2022
COMMON JUDGMENT
Both these appeals are filed against the order passed by the
Estate Officer in Case No.EO/E(88)(88A) of 2002 dt. 26.3.2019
whereby the appellants are evicted and damages are awarded. Parties
are hereinafter referred as per their original nomenclature.
2. Brief facts of the case are as follows:
Applicant/petitioner is a body Corporate constituted u/s. 3 and
5 of Major Port Trusts Act, 1963, being the successors in title to the
Trustees of the Port of Bombay, constituted under Bombay Port Trust
Act, 1879. The Trustees of Port of Bombay, the predecessor in title of
the applicant had leased out to Goolbai Nowroji Dadabhoy Engineer, as
lessee plot of land bearing Old RR No.1241, together with building
standing thereon admeasuring 3422/9 sq.yards i.e. 286.14 sq. mtrs.
situated at Mody Bay Estate, Mumbai, for a period of fifty years from
1.2.1935 on the terms and conditions mentioned in Lease Deed
dt.27.8.1935. By Probate and by diverse mesne assignments, the
demised premises was ultimately assigned to Jeenabhai Navalchand
Shah, Nishar Ahmed Mohamed Suleman and respondent Zohrabibi
Ismail Khan as per Deed of Variation dt. 9.12.1974 as joint tenants.
Respondent Zohrabibi Ismail Khan alongwith Jeenabhai Navalchand
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Shah and Nishar Ahmed Mohamed Suleman were the joint lessees
holding over on month to month basis tenancy. On the expiry of 50
years, respondent has failed to vacate the building on the said plot
within 3 months before expiry of lease as per the terms and conditions
of Lease Deed. The sanctioned user in respect of the said premises is for
shops and residences. As Respondent Zohrabibi failed to vacate the said
premises, the applicant has issued notice on 21.11.1985 addressed to all
the joint assignees /lessees including the respondent. Said notices have
been duly served upon them by which, tenancy was terminated due to
efflux of time. The applicant has issued notice on 20.9.1991 which was
given without prejudice to the earlier notice dt.21.11.1985. After
termination of tenancy, the applicant became entitled to recover the
possession of the said premises. As respondent failed to vacate the
premises, therefore, she is liable to pay arrears of Rs.1,38,19,564.36
upto 31.10.2002 as compensation and other charges alongwith interest
at the rate of 18% per annum.
(ii) It is contention of the applicant that after expiry of notice
period, respondent Zohrabibi is unauthorized occupant in respect of the
premises in the application. As per contention of the applicant, premises
in petition/application is Public Premises within the meaning of Sec.2 of
The Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
(iii) It is further contention of the applicant that respondent has
carried out unauthorized demolition work and reconstruction of part of
portion of building structure with steel frame structure ground floor + 2
upper floors and partly 3rd floor of building. Respondent has also
unauthorizedly changed the user of Shop No.4 on ground floor to Bar &
Restaurant. Respondent has also carried out unauthorized construction
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of loft and W.C. on ground floor. Respondent has also unauthorizedly
sublet Room Nos.15,18,25 &34 on first floor. Respondent is also liable
to Rs.3,41,988.13 being arrears of rent due upto 30.9.2014. Thus, the
applicant prayed that respondent be evicted from the said premises and
compensation and arrears of rent is to be recovered from the
respondent.
(iv) After receipt of the application, the Estate Officer has issued
show cause notice to respondent Zohrabibi on 6.12.2002. In response to
the said show cause notice, respondent appeared and filed Written
Statement.
(v) By said Written Statement, respondent has denied the
contentions of the applicant. It is contention of the respondent that no
cause of action has arisen for filing the application. The application is
misconceived and not maintainable in law. It is further contention of
respondent that alleged termination notices dt. 21.11.1985 and
20.9.1991 are not received by the respondent. Respondent has denied
the entire contentions of the applicant and submitted that applicant has
failed to follow the guidelines issued by the Ministry of Urban
Development and Poverty Aviation Director of Estate, Resolution dt.
30.5.2002 to prevent arbitrary use of powers to evict genuine lessees
from public premises under the Law of Public Sector
Undertaking/Financial Institution. Hence, the application deserves to be
dismissed. However, respondent admitted that predecessors of the
applicant vide Lease Deed dt. 27.8.1935 has leased out to Goolbai N.D.
Engineer as lessee, the application premises together with building
standing thereon. Respondent has also admitted that by Diverse
assignment, demised premises was assigned by Deed of Variation dt.
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9.12.1974 to her as well as Jeenabhai Navalchand Shah, Nishar Ahmed
Mohamed Suleman. As per respondent, demised premises is fully
occupied by tenants and not a single premises is in possession of
respondent or legal heirs and representatives of deceased lessees.
Jeenabhai Navalchand Shah expired on 18.6.1992 and Nishar Ahmed
Mohamed Suleman expired on 12.4.1981. The applicant has not made
heirs and legal representatives of deceased lessees as party respondents
to the application. Therefore, it is contention of the respondent that
application deserves to be dismissed for non joinder of proper and
necessary parties.
(vi) It is further contention of the respondent that respondent has
not received the said notice, therefore, question of being unauthorized
occupant after expiry of the said notice does not arise. It is further
contention of the respondent that she has not committed any breach of
terms and conditions of lease by unauthorized construction of lofts and
change of user and hence, she prayed for dismissal of the application.
(vii) The Estate Officer has framed the necessary issues. After
recording evidence of both the sides, the application is allowed and
respondent is evicted from the said premises. Being aggrieved and
dissatisfied with the order of the Estate Officer, Appeal No.112 of 2019
is filed by the original tenant Zohrabibi Ismail Khan whereas Appeal
No. 145 of 2019 is filed by subtenants. The order of the Estate Officer
is challenged by the respondent and sub tenants on the ground that all
occupants of the premises are not served with the notice and therefore,
application is bad in law and liable to be dismissed.
(viii) It is further contention of the respondent and subtenants that
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sub tenants entered into possession as tenants of the owners of the
structure as per their terms of tenancy. Estate Officer failed to give
opportunity of being heard to the people who were admittedly in
occupation at the time when eviction proceedings were filed in 2002.
Sub tenants/appellants Nos. 4,6,7,8,12 & 13(M.A.No.145/19) are
admittedly in occupation of premises prior to the date on which the
eviction proceeding were filed before Estate Officer.
(ix) It is further contention of the appellants in Misc. Appeal
No.145/2019 that this is not a case between landlord and tenant or
lessor lessee under the Rent Act or Transfer of Property Act. The
impugned order is under the provisions of The Public Premises(Eviction
of Unauthorized Occupants) Act, 1971, therefore, only requirement in
order to be entitled to a show cause notice is the occupation of the
premises. They cannot be evicted without following due process of law
and they are not served with show cause notice. Hence, the impugned
order ought to be set aside.
(x) The order of the Estate Officer is challenged on the ground that
Estate Officer is not competent to decide legal question relating to the
validity of the lease deed and therefore, he has no jurisdiction to
entertain the application. It is further contention of the sub tenants that
application is barred by Law of Limitation. The Rent Act, 1947 is clearly
applicable to the structures and as the tenancy, was continued on month
to month basis. The fundamental principles of natural justice are not
looked into. They also claimed adverse possession. It is further
contended that guidelines are not followed and therefore, order passed
by the Estate Officer deserves to be set aside by allowing the appeals.
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3. Heard Ld. Adv.Mr. Sachin Gelye for respondent i.e. appellant in
MA. No.112 of 2019 and Ld.Adv. Mr. Prerak Choudhary for sub
tenants/appellants in M.A. No.145 of 2019. It is submitted that Estate
Officer has not considered the legal provisions. All occupants are not
served with notice in view of Sec.3(4)(v) of The Public Premises Act. It
is further submitted that Estate Officer has no jurisdiction to entertain
the application. Moreover, application is barred by Law of Limitation.
Fundamental principles of natural justice are not looked into. The Rent
Act is clearly applicable and the respondent i.e. original tenant as well
all occupants are protected tenants in view of provisions of Maharashtra
Rent Control Act. It is further submitted that sub tenants/appellants are
in continuous and possession of the property since several years and
therefore, they became the owner of the suit property by way of adverse
possession.
4. Whereas Learned Cousel Mr. Nikunj Mehta for applicant/BPT
submitted on behalf of applicant/BPT that tenancy is a joint tenancy.
Therefore, upon the death of anyone of the joint tenants, the deceased
tenant's right and interest devolves upon the surviving tenants. Nisar
Ahmed passed away on 12th April, 1981 . Therefore, there was no need
to serve the suit notices dt.21.11.1985 and 20.9.1991 upon Nisar
Ahmed. As regards, Jeenabhai Shah, both the notices have been validly
served on him. The notice dt. 20.9.1991 is served on him. Said
Jeenabhai Shah has accepted the notice, signed and acknowledged the
same on his behalf and on behalf of respondent Zoharabibi. Witness of
Zoharabibi has admitted during his crossexamination that first notice
was validity served on the joint tenants. As regards the second notice, he
admitted that it is served on Jeenabhai Shah and his heir. Rule 5 of The
Public Premises (Eviction of Unauthorized Occupants) Rules, 1971
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permits service of notice to an adult family member. Notice
dt.20.9.1991 was pasted on the entrance of the suit premises on
30.9.1991 and therefore, it is a valid service.
5. It is further submitted by applicant/BPT that as far as Limitation
Act is concerned, same is not applicable to the present proceedings and
in any event the cause of action for the recovery of possession is a
continuous. He further submitted that dishonesty of respondent is borne
out by agreements entered into by respondent with the third parties
which are on record. The said agreements show that the respondent
misrepresented to all these subtenants that she is the owner of the
subject premises. She has collected rent for decades and permitted
unauthorized construction as well as change of use of user. The original
lease agreement dt. 27.8.1935 has a provision that the lessees will not
add or alter the building. Further there is a provision setting out that
the subject premises will not be assigned without prior consent of the
applicant/BPT, but respondent entered into agreement with various
persons and accepted the rent. Thus, she has sub let the subject
premises without any authority.
6. It is further submitted by the applicant/BPT that service of
notice is not required on the occupants. It is observed by the Hon'ble
Apex Court that after termination of the tenancy, respondent has failed
to explain as to how thereafter he occupied the premises without
consent of the Port Trust. Thus, relevant date is that of termination of
tenancy. The Bombay High Court has held in case of Motichand & Co.
& Ors. that upon termination of tenancy by way of service of notice, the
tenant becomes an unauthorized occupant. In order to escape eviction,
respondent has handed over possession of premises to various persons.
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The subsequent occupier is not entitled to a fresh notice. Therefore,
contention of the occupants who have filed appeal that they have not
served with notice is not sustainable. He further submitted that various
agreements on record show that respondent Zoharbibi entered into
agreement with them after proceedings for eviction was initiated i.e. she
entered into agreement with various persons on 8.3.2018, 1.7.2008,
26.4.2004, November, 1990,1.7.2013, 1.12.2013. Thus, these all
agreements show that she entered into agreement with all these persons
after eviction proceedings were initiated. Therefore, eviction order
passed by the Estate Officer is legal and proper one and no interference
is called for.
7. After hearing both the sides, following points arise for my
consideration and I answer the same as follows:
POINTS FINDINGS
1 Whether the applicant proves that the premises
i.e. application premises is 'Public Premises'
within the meaning of Public Premises (Eviction
of Unauthorized Occupants) Act, 1971?
..In affirmative
2. Whether the respondent proves that she is
protected tenant in view of Bombay Rent Act,
1947 and Maharashtra Rent Control Act, 1999?
..In negative
3. Whether the applicant proves that respondent
and other subtenants are the unauthorized
occupants of the application premises?
..In affirmative
4 Whether the applicant is entitled for arrears of
rent and compensation?
..In affirmative
5 Whether the application is barred by limitation.? ..In negative
6. Whether the order passed by the Estate Officer
calls for any interference?
..In negative
7 What order? ..As per final
order.
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R E A S O N S
AS TO POINT NOS.1 to 5
8. As per the case of the applicant/BPT, it is a body Corporate
constituted u/s. 3 and 5 of Major Port Trusts Act, 1963, being the
successors in title of the Trustees of the Port of Bombay, constituted
under Bombay Port Trust Act, 1879. The Trustees of Port of Bombay,
the predecessor in title of the applicant/BPT had leased out application
premises alongwith building standing thereon to Goolbai Nowroji
Dadabhoy Engineer on the terms and conditions mentioned in Lease
Deed. By Probate and by diverse mesne assignments, the demised
premises was ultimately assigned to Jeenabhai Navalchand Shah, Nishar
Ahmed Mohamed Suleman and respondent Zohrabibi Ismail Khan as
per Deed of Variation dt. 9.12.1974 as joint tenants. Respondent
Zohrabibi Ismail Khan alongwith Jeenabhai Navalchand Shah and
Nishar Ahmed Mohamed Suleman are the sole and surviving joint
tenants. Admittedly, there was no renewal clause under the said Lease
Deed. Said Lease Deed was given for the period of 50 years. Thus, said
lease is to be expired by efflux of time. It is an admitted position that
other two lessees i.e. Nishar Ahmed Mohamed Suleman passed away on
12.4.1981 and another lessee Jeenabhai Navalchand Shah expired on
18.6.1992. Now, it has to be seen whether the premises belongs to
Mumbai Port Trust being a local body and the premises owned by it, is a
Public Premises or not.?
9. Admittedly, applicant/BPT is a Body Corporate constituted
under the provisions of Major Port Trusts Act, 1963 as amended by
Major Port Trusts(Amendment) Act, 1974. The applicant/BPT is
successor in title of the Board of Trustees of Port of Bombay, a Body
Corporate, constituted under the provisions of Bombay Port Trusts Act,
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1879. The premises in question belongs to the Board of Trustees of
Port of Bombay. Sec.2(e) (v) of Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 states that the 'Public Premises'
referred to in subclause (3) of that clause, the Council, Corporation or
Corporations, Committee or Authority, as the case may be, referred to in
that subclause. “Public Premises” defined in Section 2(e) of Public
Premises Act means any premises belonging to, or taken on lease or
requisitioned by, or on behalf of. Thus, in view of Sec. 2(e)(v) , the
premises in question is public premises. Hence, the applicant being
Corporation and Local Authority, covered under the definition of “public
premises”.
10. The applicant/BPT has come with the case that the
premises was lease out to respondent Zoharabibi along with other two
lessees for 50 years and said lease comes to an end in the year 1985 and
therefore, notice was issued on 21.11.1985 to respondent and other
joint lessees. Admittedly, one of the lessee i.e. Nisar Ahmed passed away
on 12th April, 1981 and therefore, notice was not served upon him. It is
contention of the applicant that tenancy is joint tenancy and therefore,
upon death of anyone of the joint tenants, the deceased tenant's right
and interest devolves upon the surviving tenant as Nisar Ahmed passed
away on 12th April, 1981 and therefore, notice was not served upon him.
The notice is served upon other lessees i.e. Jeenabhai Shah and present
respondent Zohrabibi. Said notice is served upon them but they have
not vacated the premises. Therefore, another notice was served on them
on 20.9.1991. But after service of notice also they have not vacated the
said premises.
11. To prove the contention of the applicant/BPT that lease is
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for the fixed period and respondent has contravened the terms and
conditions of the lease, the applicant/BPT relied upon the evidence of
AW1 K.E. Sunikumar who is working as Assistant Estate Manager with
the applicant/BPT. His evidence shows that applicant is a Body
Corporate constituted under Sections 3 and 5 of the Major Port Trusts
Act, 1963, being successors in title of Trustees of Port of Bombay,
constituted under Bombay Port Trusts Act, 1879. The sum and
substance of his evidence shows that lease was for period of 50 years
from 1.2.1935. By Probate and by diverse mesne assignments, the
demised premises was ultimately assigned to Jeenabhai Navalchand
Shah, Nishar Ahmed Mohamed Suleman and respondent Zohrabibi
Ismail Khan as per Deed of Variation dt. 9.12.1974 as joint tenants. He
has produced on record, the Deed of Lease as well as Deed of Variation
dt. 9.12.1974. He further testified that first notice is issued on
21.11.1985 and second was issued on 20.9.1991. Second notice was
given without prejudice to earlier notice dt.21.11.1985. Said notices
were duly served upon surviving joint tenants. Eviction proceedings
were initiated as surviving joint tenants failed to vacate the application
premises.
12. AW1 K.E. Sunikumar is crossexamined at length. During
his crossexamination he denied that he has no authority to amend or
file the petition and give evidence. He also denied that he was not
appointed prior to 2004 and therefore, he is not aware about the facts
of the case. He also narrated the nature of the property as ground plus
two storey and Part III floor structure and the location is described in
the schedule to the application. It is also come in his crossexamination
that major structural repairs have been carried out a couple of years
back. He further denied that lease was renewed from time to time. He
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further stated that surviving assignee who is also the lessee, has been
made a party in the proceedings. It also come in his crossexamination
that being joint tenancy there was no need to take NOC from the legal
heirs. He further stated that relevant document i.e. Deed of variation
which has been produced in this case is dt. 9.12.1974 which is at Exh.B.
He denied that notice dt. 21.11.1985 is not personally served on the
respondent. He also showed the copy of acknowledgement to show that
copy is served.
13. It further came during his crossexamination that notice is
personally received on behalf of the respondent by her family member.
He further stated that Power of Attorney given to her(i.e. respondent's)
father and her brother and the person who has received the notice is
either her father or her brother. It has further come in his cross
examination that second notice dt. 20.9.1991 has been received by
Jeenabhai Shah on behalf of Zohrabibi who was one of the joint tenant.
It further came in his crossexamination that authority was given to
Mr.Varadan to issue notice. He filed on record, the power of attorney to
that effect. Authority in favour of Mr. Yathischandradhara is also filed
on record. He denied that there is no any addition, alteration of
permanent nature. He also denied that no construction was carried out.
He stated that construction was carried out without permission of MBPT
and therefore, it was unauthorized. It also come in his cross
examination that user of the said premises was also changed. Thus,
crossexamination of this witness of the applicant/BPT shows that
nothing incriminating is come on record to falsify the case of the
applicant. Besides oral evidence of AW Sunil Kumar, the applicant
relied upon Lease Deed dt. 27.8.1935 at Exh.A, Deed of Variation dt.
9.12.1974 at Exh.B, copy of notice dt. 21.11.1985 alongwith three
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personal service acknowledgements at Exh.C Colly, 3 Power of
Attorneys in favour of Mr. S.Varadan who signed the first notice, Mr.
Yathishchandradhara who signed the second notice and Power of
Attorney of Mr. Rajesh Panicker who signed and verified the application
at Exh.E Colly., Trustees Resolution No.365 of 12.12.1991 at Exh.F and
statement of arrears at Exh. G. Terms and conditions of Lease Deed and
Deed of Variation show that respondent i.e. lessee shall not assign
demise premises to anybody without consent of the applicant.
14. The applicant has also examined Mr. Diptesh Vasant Patil,
Assistant Estate Manager as Witness No.2. As per his evidence,
unauthorized demolition work and reconstruction of part of portion of
building structure with steel frame structure , ground floor + two upper
floors and partly third floor of building was done by respondent and
said breaches were conveyed by the applicant to the respondent vide
letter dt. 14.12.2010. Unauthorized change of user at Shop No.4 on
Ground Floor to Bar and Restaurant done by the respondent and said
illegal change of user was conveyed by the applicant to the respondent
vide letter dt. 21.7.2012. Unauthorized construction of lofts and WC of
ground floor is observed by the Building Inspector during his visit. It is
his evidence that respondent has illegally and without permission of the
applicant changed the occupant at the south west of the ground floor.
He has filed on record the said correspondence in support of his
contention. Though he is crossexamined at length but nothing
incriminating is brought on record.
15. Respondent has denied the contention of the applicant/
BPT and submitted that application is barred by law of limitation as well
as guidelines issued by the Central Government are not followed by the
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applicant/BPT. However, respondent has admitted that Lease Deed was
executed. It was for 50 years from 1.2.1935. It is further contention of
respondent that termination notice was not served upon her and
therefore action of eviction is illegal. In support of her contention, her
Power of Attorney Mohammed Hanif Ismail Khan has entered into
witness box and deposed on her behalf. Sum and substance of his
evidence is that respondent has executed Power Of Attorney in his
favour. He is fully aware and acquainted with the facts of the case.
Respondent has executed Power Of Attorney on 15.12.2005 in his
favour. He produced Power of Attorney before the Court. He testified
that monthly lease rent and compensation charged and claimed by the
applicant/BPT is excessive and exorbitant and not as per standard Rent.
Inquiry proceedings is bad in law and illegal. It is further his evidence
that allegations made in enquiry proceedings/notices are vague and
lacks material particular. He denied unauthorized demolition work and
reconstruction of part of portion of building structure. He also denied
that notices are served upon him and other lessees and prayed for
dismissal of the application.
16. Respondent Witness1 Mr. Mohammed Hanif Ismail Khan is
cross examined at length regarding service of notice. He admitted that
first notice dt 21.11.1985 was served upon the respondent and joint
lessees but he is not aware about the second notice. The second notice
dt. 20.9.1991 was shown to him and he admitted that signature appears
to be one of heirs of Jeenabai Navalchand Shah. He stated that he is not
aware whether both the said notices were properly served on the joint
lessees. He admitted that lease of joint lessees is terminated. He also
admitted that after termination of lease of joint lessees, possession was
asked to be handed over to the applicant/BPT. It further came in his
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cross examination that he is not aware about the original lease and the
year when the original lease was executed. He also admitted that
respondent is the only surviving joint tenant. He further admitted that
by Deed of Assignment, Plot of land together with building was
transferred from name of original lessee Gooldabhoy Engineer to three
joint tenants. He also admitted that by virtue of assignment, the terms
and conditions contained in the said lease dt.27.8.1935 are binding on
three joint tenants. He also admitted that terms and conditions
contained in Lease Deed dt.27.8.1935 and terms and conditions
contained in Deed of Variation dt.9.12.1974 both are binding on the
respondent. He admitted that Lease Deed dt. 27.8.1935 was only for 50
years and expired in 1985. He further admitted that in absence of any
renewal clause in Lease Deed, it was not renewed. But he denied the
suggestion of the applicant/BPT that construction was carried out in the
said building without permission of the applicant/BPT. He denied that
permission were not taken from BMC. Thus, from his cross examination
it is crystal clear that terms and conditions mentioned in the Lease Deed
as well as Deed of Variation are binding on the respondent. Said lease
was for 50 years and after completion of 50 years, termination notices
were served upon the respondent.
17. In support of her contention, respondent has also examined
Mr. Arun Shetty as a witness. As per his evidence, respondent who is
lessee of BPT since long i.e. 1935. Originally his father was tenant since
1959 and subsequently he was tenant of shop No.4 with mezzanine
floor. Thus, as per his evidence, he is tenant in the said premises and
user of the said premises is not changed. He is also crossexamined at
length. During his cross examination he admitted that earlier tenant
Raghunath Barde transferred shop to his father. He is not aware as to
-- 18 of 39 --
19
who put Raghunath Barde in possession of shop. He is not aware who
has let out the shop to Raghunath Barde. He admitted that Zoharabibi is
the owner of the building. He admitted that he is tenant of the shop.
Ismail Khan and Sons are Rent Collectors of the Respondent. Thus, his
cross examination shows that he is tenant of the respondent.
18. It is not the case of respondent or sub tenants that new
lease was intended to be created. Admittedly, first notice was given on
21.11.1985 and tenancy was terminated as the lease period was over.
The second notice dt. 20.9.1991 was also given as after first notice,
though tenancy period was over, respondent has not vacated the
application premises. It is observed by the Hon'ble Apex Court in
Tayabali Jaferbhai Tankiwala Vs. M/s. Ahsan and Co. and Ors. 1970
Mh.L.J. Note 40=AIR 1971 SC 102 that nonetheless the Court will
have to consider if there was intention to treat the lease as subsisting
and there is express or implied consent of person to whom notice is
given. The Hon'ble Apex Court clearly says that intention of the parties
will have to be gathered. It does not say that since second notice is
given the first is deemed to be waived and the Court need not go into
the question of intention at all. It would be absolutely incumbent to
look into the intention of the parties as to whether they treated the lease
as still subsisting. In the present case, the intention of landlord not to
treat the lease as subsisting is absolutely clear in the second notice. It is
clearly mentioned that as the lease period is over, tenancy was
terminated. It is well settled law that when a lease is for fixed period
with no option for renewal no inference except that it was for a fixed
period can be drawn. Most important factor that should weigh is that
lease is for the fixed period of 50 years with no option for renewal at all.
When lease is for fixed period with no option for renewal no inference
-- 19 of 39 --
20
except that it was for a fixed period can be drawn. Here in the present
case also, lease was for a fixed period.
19. After going through the evidence, it appears that Estate
Officer has appreciated the evidence and allowed the application and
evicted the respondent. Being aggrieved by the same, respondent as
well as other occupants who are tenants of the respondent have
preferred the present appeals. As per contention of the sub tenants they
are occupants of said premises and no notice is served on them and
therefore, order of the Estate Officer is illegal. In support of their
contentions, they relied upon various tenancy agreements executed by
respondent in favour various persons. Recitals of said various
agreements show that respondent has shown herself as owner of the
building known as 'Engineer'. Tenancy agreement between Zoharabibi
Ismail Khan and Ojus Marketing Management Pvt. Ltd. was executed on
8th March, 2008 i.e. after termination notice. Agreement between Mrs.
Nisha Gangadhar Shukla and Zoharabibi was executed in July, 2008.
Tenancy agreement between Zoharabibi and Gangadhar I. Shukla was
executed on 26.4.2004. Tenancy agreement between Zoharabibi and
Kantilal Gangji Satra was executed on 11.12.2013. Tenancy agreement
between Mr. Maaz Ahmed and Mrs. Niloufer and Zoharabibi was
executed in July, 2013. Agreement between Mustafa Khuzema Bamboat
and Zoharabibi was executed on 1.12.2013. Agreement between
Vinodchandra Ankhiwala and Jinabhai N. Shah & Ors. was executed on
21.3.1988. Agreement between Shafi A.L.Shaikh and Nisar Ahmed
M.Suleman was executed on 24.9.1992. In all these agreements,
respondent is shown as the owner of the property. Thus, it appears that
respondent has denied the ownership of the applicant/BPT in the said
agreement. Admittedly applicant/BPT covers under local authority. In
-- 20 of 39 --
21
view of Sec.2(e)(v) the premises owned by the applicant is public
premises. The respondent comes with the case that Public Premises Act
is not applicable. Respondent and subtenants are not validly served
with the notice and therefore, proceedings is bad in law and liable to be
set aside. Respondent's witness specifically admitted that notice
dt.21.11.1985 is duly served on the respondent and by this notice,
tenancy is terminated due to efflux of time. His cross examination
specifically states that one of the heir has received the notice
dt.20.9.1991 on behalf of Jinabhai Navalchand Shah and respondent
Zoharabibi. It is contention of the sub tenants that no notice is issued to
them. Admittedly, agreements between the respondent and these sub
tenants are executed after termination of notice.
20. Learned Advocate for respondent relied upon Ramgarh
Farm and Industries Ltd. Vs. State of U.P. & Ors. (1985 SCC Online
All 45) wherein it is observed that notice u/s. 4(2)(b) of U.P.Act No.22
of 1972 may be given to all the persons concerned that is to say all
persons who are, or may be, in occupation of, or claim interest in, the
public premises to show cause. I have gone through the facts of cited
case which show that Section 4(2)(b) of U.P.Act No.22 of 1972 requires
notice to all persons concerned that is to say, all persons who are, or
may be, in occupation of, or claim interest in, the public premises to
show cause, if any, against the proposed order on or before such date as
is specified in notice. Admittedly, the agreements entered into between
respondent and Ojus Marketing Management Private Ltd., Nisha
Gangadhar Shukla, Gangadhar I. Shukla, Kantilal Gangji Satra, Maaz
Ahmed Qureshi and Mrs. Niloufer Qureshi and Mustafa Khuzema
Bamboat are subsequent to the termination notice to the respondent as
well as subsequent to the eviction proceedings i.e. after filing of the
-- 21 of 39 --
22
eviction proceedings. Admittedly, when termination notice is given or
eviction proceedings are initiated, these persons were not occupants of
said premises. Therefore cited case is not helpful to the respondent.
He further relied on decision in the case of Ajit Baburao Sawant
& Ors. Vs. General Manager, BEST Undertaking of the Municipal
Corporation of Greater Bombay and Ors. (1985 Mh.L.J.527) wherein
the Hon’ble Bombay High Court held that family members of an allottee
are not required to be served with different notice when they required
to vacate the accommodation on termination of employment. However,
persons who are in occupation of the premises through allottee have
their own individual right to be served with a notice. The facts of cited
case are also not identical with the present case. In the present case
premises was sub let to these sub tenants subsequent to the termination
notice and after initiation of eviction proceedings. In the present case,
show cause notices are issued to the respondent on 6.12.2002 at that
time none of these occupants were in occupation of the said premises.
He further relied upon decision in Gujarat Housing Board,
Vijaynagar, Ahmedabad Vs. Rameshbhai T. Bhatt and Anr. (1989
SCC Online Guj 25) wherein Hon’ble Gujarat High Court has held that
even if premises concerned are sublet, it is the duty of the officer to
serve upon the person in actual possession of the premises show cause
notice and make him/her a party to the eviction proceedings even if the
eviction is sought on the ground of non payment of rent by the allotee.
As it is already observed in the present case that at the time of
termination notice, these appellants were not at all in possession of the
said premises and they are inducted subsequent to the eviction
proceedings and after show cause notices were issued to the respondent,
hence, cited case law is not helpful to the respondent.
-- 22 of 39 --
23
21. On the other hand, Learned Advocate for the applicant/BPT
relied upon the decision in Board of Trustees of The Port of Kolkata
Vs. Kalipada Bhakat & Ors. (Civil Appeal No. 9387 of 2014) wherein
the Hon’ble Apex Court in para 7 has observed that respondent No.1
failed to explain as to how thereafter he occupied the premises without
consent of Port Trust. It is further observed therein that it also reveals
that Respondent No.1 had knowledge of the eviction proceedings and
he contested on behalf of Respondent No.2. Eviction order drawn
against respondent No.1 attained finality. No doubt, subsection (2) of
Section 4 of the Act requires issuance of notice to those in occupation of
public premises before eviction order is passed against such persons, but
in the present case since the proceeding has been drawn against
unauthorized occupant and to escape the eviction, she appears to be
have handed over possession of the premises to subtenants, as such, the
subsequent occupier cannot be said to be entitled to fresh notice. Here,
in the present case also after eviction proceedings is initiated and to
escape from eviction order, respondent Zoharbibi handed over
possession by denying the ownership of the applicant/BPT to all the
appellants who had filed Misc.Appeal No. 145 of 2019.
He also relied upon judgment in Vijay Rahul V. Delhi
Development Authority (2011 SCC Online Del 4874) wherein in Para
7 Delhi High Court has observed that appellant as sub tenant has no
locus standi.
22. In the present case termination took place by notices dt.
21.11.1985 and 20.9.1991. Thus, relevant date is 21.11.1985. The rent
agreements on record shows that the agreement was executed on 8th
March, 2008 in favour of Ojus Marketing Management Pvt. Ltd.
-- 23 of 39 --
24
Tenancy began from 1.3.2013. Another agreement is executed in July,
2008 wherein respondent Zoharabibi is shown as owner. Third
agreement was executed on 26.4.2004. Thus, all these agreements are
subsequent to show cause notice as well as subsequent to the eviction
proceedings. As observed by the the Hon’ble Apex Court in Board of
Trustees of The Port of Kolkata Vs. Kalipada Bhakat & Ors. (supra),
relevant date is that of termination of tenancy. It is specifically observed
by the Hon'ble Apex Court that after termination of tenancy,
Respondent failed to explain as to how thereafter he occupied the
premises without consent of Port Trust. Therefore, contention of
respondent and other appellants that they are not served with notice
and hence, the eviction order is bad in law is not sustainable. It is
specifically observed by the Hon’ble Supreme Court that subsequent
occupier is not entitled to fresh notice.
He also relied upon the decision in Motichand & Co. & Ors. Vs.
Life Insurance Corporation of India and Ors. [2013 (2) AIR R 289]
wherein in Para 14 it is observed that upon termination of tenancy by
way of service of notice, tenants become unauthorized occupant. As
respondent has inducted other appellants in the application premises
after initiation of eviction proceedings and after show cause notice is
received by her, she was having knowledge about the eviction
proceedings. Hence, it is sufficient to show that only to escape from the
said eviction, she has inducted the appellant as sub tenants. Therefore,
contention of the respondent that no notice is served is falsified by
admissions given by her witness. Other appellants are not entitled for
any notice as they are inducted subsequent to the initiation of eviction
proceedings and after show cause notice is issued to respondent.
-- 24 of 39 --
25
23. Another issue raised by respondent is that she is protected
tenant under Bombay Rent Act, 1947 and Maharashtra Rent Control
Act, 1999. Now, question is whether the premises belonging to Bombay
Port Trust being local authority and whether protection can be granted
to the tenant under Bombay Rent Act,1947 and its successor
Maharashtra Rent Control Act 1999?. For that purpose, Learned
Advocate for the respondent relied upon judgment in Dr. Suhas H.
Pophale V. Oriental Insurance Co. Ltd. and its Estate Officer (Civil
Appeal No. 1970 of 2014 Decided on 11.2.2014 ) and submitted that
it is applicable to the tenants who were in possession of the said
premises since prior to the Public Premises Act, 1971 came into effect
wherein the question raised for consideration was whether the rights of
an occupant protected under the State Rent Control Act and its
successor Maharashtra Rent Control Act, 1999.? While considering the
principal issue involved in the matter, the Hon'ble Apex Court has
observed that the effect of giving overriding effect to the provisions of
the Public Premises Act over the Rent Control Act, would be that
buildings belonging to companies, corporations and autonomous bodies
referred to in Section 2(e) of the Public Premises Act would be excluded
from the ambit of the Rent Control Act in the same manner as
properties belonging to the Central Government. It is held that the
reason underlying the exclusion of property belonging to the
Government from the ambit of the Rent Control Act, is that the
Government while dealing with the citizens in respect of property
belonging to it would not act for its own purpose as a private landlord
but would act in public interest. It is further observed by the Hon'ble
Apex Court in para 42 that the properties of the erstwhile insurance
companies did not belong to the Government Companies or the
Government at that stage, when the appellant has acquired the status of
-- 25 of 39 --
26
'tenant' u/s.15A of Bombay Rent Act. It is further observed that The
Public Premises Act, undoubtedly provides a speedy remedy to recover
the premises from the unauthorized occupants. At the same time, we
have also to note that in the instant case the occupant is claiming a
substantive right under a welfare provision of the State Rent Control
Act, which gave him a protected status in view of the amendment to
that Act. The question is whether this authority of management
bestowed on the Government Company can take in its sweep the right
to proceed against such protected tenants under the Public Premises
Act, by contending that the premises belonged to the Government
Company at that stage itself, and that the State Rent Control Act no
longer protected them. Considering that the Rent Control Act is a
welfare enactment, and a further protective provision has been made
therein, can it be permitted to be rendered otiose and made inapplicable
to premises specifically sought to be covered thereunder, and defeated
by resorting to the provisions of the Public Premises Act. In para 65 of
the judgment, it is specifically clarified that The Bombay Rent Act
exempted from its application only the premises belonging to the
government or a local authority. The premises belonging to the
Government Companies or Statutory Corporations were, however,
covered under the Bombay Rent Act. As these Government Companies
and Public Corporations are taken out of coverage of the Bombay Rent
Act by virtue of the Public Premises Act, the provisions of Public
Premises Act, cannot be made applicable to the tenancies entered into
before 16th September, 1958 or before the property in question
becoming public premises.
24. Thus, perusal of entire judgment of Suhas Pophale Vs.
Oriental Insurance Co.Ltd. makes it crystal clear that the judgment
-- 26 of 39 --
27
grants protection to those tenants who were enjoying the protection of
The Bombay Rent Act, before the Public Premises Act came into effect.
Their protection was continued and held not to be taken away by
enactment of Public Premises Act. It was held that, as earlier they were
tenants of the private landlords, like the Government Companies or
Public Corporations or Private Insurance Companies, the status of being
the tenant of public premises was thrust upon them on account of the
Public Premises Act coming into effect and those Private Insurance
Companies thereafter becoming General Insurance Companies. Hence,
those cannot be deprived of the protection given to them under the
Welfare Legislation of the Bombay Rent Act and its successor
Maharashtra Rent Controller Act.
25. Admittedly, the applicant is a Body Corporate constituted
under the provisions of Major Port Trusts Act, 1963. The applicant is
successor in title of the Trustees of the Port of Bombay, a Body
Corporate constituted under Bombay Port Trusts Act, 1879. Thus, the
premises belong to the Board of Trustees of Port of Bombay. Therefore,
question for consideration is whether The Bombay Rent Act or
Maharashtra Rent Control Act is applicable to the premises owned by
the Port Trust?. Section 4(i) of The Bombay Rent Control Act states
that, “ This Act shall not apply to any premises belonging to the
Government or a local authority or apply as against the Government to
any tenancy,(licence) or other like relationship created by a grant from
(or a licence given by) the Government in respect of premises
[requisitioned or taken on lease (or on licence)] by the Government,
including any premises taken on behalf of the Government on the basis
of tenancy (or of licence) or other like relationship by, or in the name of
any officer subordinate to the Government authorized in this behalf; but
-- 27 of 39 --
28
it shall apply in respect of [premises let, or given on licence, to] the
Government or local authority[or taken on behalf of the Government on
such basis by, or in the name of, such officer]. Thus, as per this section,
the premises belonging to the Government or the local authority are
excluded from the provisions of The Bombay Rent Act. Section 3 (a) of
Maharashtra Rent Control Act, 1999 also states that, “Any premises
belonging to the Government or a local authority or apply as against the
Government to any tenancy, license or other like relationship created by
a grant from or a license given by the Government in respect of
premises requisitioned or taken on lease or on license by the
Government, including any premises taken on behalf of the Government
on the basis of tenancy or of license or other like relationship by, or in
the name of any officer subordinate to the Government authorized in
this behalf, but it shall apply in repsect of premises let, or given on
licence, to the Government or a local authority or taken on behalf of the
Government on such basis by, or in the name of such Officer.” Thus,
under the provisions of both these Acts, the premises belonging to the
Government or local authority stand exempted or excluded from the
provisions of beneficial welfare legislation like Rent Control Act.
26. The definition of “Local Authority” means a Municipal
Committee, District Board, Body of Port Commissioners or other
Authority legally entitled to. Thus, if the Body of Port of Trust is
included in the definition of “local authority”, under the Bombay
General Clauses Act, 1904, then nothing more remains to be inquired
into to hold that it is a local authority. The present Board of Trustees is
admittedly, constituted under Section 3 of The Major Port Trusts Act,
1963 and like the Board under the Act of 1879 the present Board is also
a Body Corporate entitled to sue and is liable to be sued in the name of
-- 28 of 39 --
29
Board of Trustees and therefore, it is a local authority. Thus, Port Trust
which is local authority is clearly excluded and exempted from the
application of the provisions of The Bombay Rent Act and its successor
Maharashtra Rent Control Act. The definition of “public premises” given
in Section 2(e)(v) of The Public Premises Act, categorically includes the
premises belonging to the Board of Trustees, constituted under the
Major Port Trusts Act, 1963. As the premises in question since beginning
was excluded and exempted from the application of provisions of
Bombay Rent Act and its successor Maharashtra Rent Control Act being
the premises belonging to local authority and therefore, judgment of
Suhas H.Pophale is not applicable in the present case and therefore, the
respondent and other appellants are not entitled to said protection.
27. Learned Advocate for applicant rightly relied on judgment
of the Hon'ble Bombay High Court in Board of Trustees of the Port of
Mumbai Vs. New India Assurance Co. Ltd. [2018 (5)Mh.L.J. 754]
wherein it is observed that belongings of local authority like Bombay
Port Trust, such premises were exempted and excluded from application
of Bombay Rent Control Act. It is held that respondent was tenant of
public premises which was owned by local authority port trust since
1960 and therefore, he did not enjoy protection under Rent Act. In the
present case also the premises is owned by Bombay Port Trust.
Respondent was tenant of Public Premises which is owned by local
authority since 1935. Therefore, she is not entitled for the protection
under Bombay Rent Act. Therefore, I have no hesitation to hold that
respondent or other appellants are not protected tenants in view of
Bombay Rent Act and Maharashtra Rent Control Act, 1999.
28. It is further contention of respondent that guidelines as
-- 29 of 39 --
30
issued by the Central Government are not followed. Said guidelines are
discussed by the Hon'ble Apex Court in the judgment of Suhas Pophale.
It is submitted by the respondent and other appellants that powers
under the Public Premises Act are used in a arbitrary way to evict the
genuine tenants from the public premises causing serious hardship to
them. By these guidelines Government of India has prevented arbitrary
use of powers to evict genuine tenants from public premises and to limit
the use of powers by the Estate Officer. Thus, these guidelines are
issued for the genuine tenants. The Act was meant to evict totally
unauthorised occupants of the public premises or subletees. The Hon'ble
Apex Court has specifically observed that it can be seen from these
guidelines that the Act was meant to evict totally unauthorized
occupants of the public premises or subletees or employees who have
ceased to be in their service, and were ineligible to occupy the premises.
Admittedly, in the present case, respondent become unauthorized
occupant after period of tenancy is over and other appellants are
subletees and therefore, these guidelines are not helpful to the
respondent and other appellants.
29. The applicant has come with the case that respondent and
other three joint tenants are in unauthorized occupation of the
application premises. The definition of “unauthorized occupation” given
in Sec.2 (g) of The Public Premises Act states that “unauthorized
occupation” in relation to any public premises means the occupation by
any person of the public premises without authority for such occupation,
and includes the continuance in occupation by any person of the public
premises after the authority under which he was allowed to occupy the
premises has expired or has been determined for any reason
whatsoever. Admittedly, in the present case, tenancy was created for 50
-- 30 of 39 --
31
years in favour of respondent and other joint tenants. After efflux of
time, termination notice was given to respondent and other joint
tenants. Said notice was given on 21.11.1985 and thereafter on
20.9.1991. Evidence of respondent witness No.1 specifically shows that
tenancy was for 50 years and after completion of period of 50 years, the
notice was served on the respondent and other joint tenants. Thus, after
period of tenancy was expired respondent is occupying the application
premises which shows that she is in unauthorized occupation of
application premises. The agreements which are filed on record shows
that after termination of notice and after initiation of eviction
proceedings, she has sub let the application premises to other sub
tenants. It is sufficient to show that these appellants are also in
unauthorized occupation of the application premises. Thus, the
applicant has proved that respondent and other appellants are in
unauthorized occupation of public premises. Respondent and other
appellants also contested the application and in the present appeal, they
have come with the case that all sub tenants are in continuous
possession therefore, they are owners by way of adverse possession.
Admittedly, there is no pleading before the Estate Officer by the
respondent that she is owner by way of adverse possession. The
appellants have filed agreements on record. In the said agreements, the
ownership of the applicant is denied. Plea of adverse possession is to be
against true owner i.e. hostile possession against true owner. The
concept of 'adverse possession' contemplates a hostile possession i.e. a
possession which is expressly or impliedly in denial of title of the true
owner. Possession to be adverse must be possession by a person who
does not acknowledge the other's rights but denies them. The principle
of law is firmly established that a person who bases his title on adverse
possession must show by clear and unequivocal evidence that his
-- 31 of 39 --
32
possession was hostile to the real owner and amounted to denial of his
title to the property claimed. For deciding whether the alleged acts of a
person constituted adverse possession, the animus of the person doing
those acts is the most crucial factor. Adverse possession is commenced
in wrong and is aimed against right. A person is said to hold the
property adversely to the real owner when that person in denial of the
owner's right excluded him from the enjoyment of his property. It is well
recognized proposition of law that mere possession however long does
not necessarily mean that it is adverse to the true owner. Adverse
possession really means hostile possession which is expressly or
impliedly in denial of the title of the true owner. The classical
requirements of acquisition of title by adverse possession are that such
possession in title of the true owner's title must be peaceful, open and
continuous. The possession must be open and hostile enough to be
capable of being known by the parties interested in the property, though
it is not necessary that there should be evidence of adverse possessor
actually informing the real owner of the former's hostile action. If the
defendants are not sure who is true owner the question of their being in
hostile possession and the question of denying title of the true owner do
not arise. In the present case, ownership of the present applicant/BPT
itself is denied. In the agreement with the subtenants, respondent
shown herself as owner of the property. Plea of adverse possession is
not a pure question of law but a blended one of the fact and law.
Therefore, a person claims adverse possession can show on what date
he came into possession, what was the nature of his possession, whether
the factum of possession was known to the other party, how long his
possession has continued and his possession was open and undisturbed.
Moreover, it is well settled that plea of tenancy and plea of adverse
possession can not coexist.
-- 32 of 39 --
33
30. Thus, plea of adverse possession is also not helpful to the
respondent and other appellants. Admittedly, respondent has not
entered into the witness box. On her behalf Power of Attorney RW1
Mohd. Hanif entered into witness box and he stated that he is
acquainted with the facts of the case. But his crossexamination shows
that he is not aware when original lease was executed. He is not aware
whether both the notices dt.21.11.1985 and 20.9.1991 were properly
served on the joint lessees. These admissions are sufficient to show that
he is not acquainted with the facts of the case. It is well settled that
Order 3 Rules 1 and 2 of C.P.C. empowers the holder of Power of
Attorney to “act” on behalf of the principal. The word “acts” employed
in Order 3, Rules 1 an 2, Civil Procedure Code confines only in respect
of “acts” done by the Power of Attorney holder in exercise of power
granted by the instrument. The terms “acts” would not include deposing
in place and instead of the principal. Power of Attorney holder of a
party can appear only as a witness in his personal capacity and whatever
knowledge he has about the case he can state on oath but he cannot
appear as a witness on behalf of the party in the capacity of that party.
It is observed by the Hon'ble Supreme Court in Janki Vashdeo
Bhojwani and another Vs. Indusind Bank Ltd. & Ors.
[2005(1)Mh.L.J.1171 that The word “acts” employed in Order 3, Rules
1 an 2, Civil Procedure Code is confined only in respect of “acts” done
by the Power of Attorney holder in exercise of power granted by the
instrument. It would not include deposing in place and instead of the
principal. Power of Attorney holder of a party can appear only as a
witness in his personal capacity. It is further observed by the Hon'ble
Apex Court that similarly, he can depose for the principal in respect of
the matter which the principal is entitled to be crossexamined. Thus,
respondent has failed to discharge burden to show that she is genuine
-- 33 of 39 --
34
tenant as she has not entered in the witness box.
31. Respondent has also challenged the order of the Estate
Officer directing her to pay arrears of rent and compensation. The
applicant/BPT has claimed arrears of rent by issuing second notice dt.
20.9.1991. The applicant has claimed arrears at the time of filing of
application amounting to Rs.1,38,19,564.36 upto to 31.10.2002
alongwith interest @ 18 % p.a. Respondent in her written statement
denied the claim of the applicant and contended that she has made part
payment of Rs.4. lakhs by cheque dt.11.8.2005. The applicant's witness
in his crossexamination stated that the amount is payable by the
respondent. He also produced on record statement of arrears of rent.
During his crossexamination, it is come on record that the claim in
Exh.G. produced in evidence is correct and he agreed the same. He has
agreed to produce the statement of arrears and thereafter produced the
said statement. Said statement is prepared by concerned Department of
the applicant and produced by its witness AW1 Sunil Kumar in the
Court. The liability as per said statement is proved. On the other hand,
there is no evidence on record to show that respondent has paid the
entire amount. Thus, evidence on record shows that respondent has
failed and neglected to pay dues of applicant with interest thereon @
18% p.a. Respondent's witness has produced receipts for some
payment. But credits for the said receipt is already given by the
applicant to the respondent. The balance due and payable by the
respondent to the applicant in respect of the premises in application
amounts to Rs. 9,91,423.28 Ps. upto 31.7.2018 including an amount of
Rs.1,11,000.04 Ps. upto 30.9.2012 with interest as on 31.7.2018 and
provisionally billed compensation inclusive of service tax for the period
w.e.f. 1.10.2012 to 31.7.2018 amounting to Rs.8,80,423.24Ps. including
-- 34 of 39 --
35
interest as on 31.7.2018. Thus, evidence on record is sufficient to show
that respondent is in arrears of rent and therefore, the order in respect
of arrears of rent and compensation is proved by the applicant and no
interference is called for.
32. It is contention of respondent that after earlier notice no
action was taken and therefore, application is barred by limitation. In
this case, tenancy comes to an end by efflux of time. Unauthorized
construction and change of user are also other grounds. Moreover, there
is continuous cause of action. Learned Advocate for the applicant/BPT
relied upon case of Nandram & Ors V. Union of India & Ors. (2000
DLT 87 234) wherein it is observed by the Hon'ble Delhi High Court
that Limitation Act does not apply to the proceedings under the Public
Premises Act. It is observed by the Hon'ble Delhi High Court that Public
Premises Act is a Special Act and it has provided for a period of
limitation wherever it is necessary and therefore, the provisions of the
Limitation Act as such cannot be made applicable to such a special Act.
The Hon'ble Delhi High Court has referred the judgment of the Hon'ble
Supreme Court in T.K.Lakshmana Iyer & Ors. Vs. State of Madras &
Ors. and decision in Town Municipal Council Vs. Presiding Office,
Labour Court, Hubli and Ors. It also referred the decision of Madhya
Pradesh High Court in case of L.S. Nair Vs. Hindustan Steel Ltd. Bhilai
& Ors. In said Division Bench decision of Hon'ble Madhya Pradesh High
Court, it was held that Estate Officer is not a court and therefore, the
Limitation Act does not apply to a proceeding before him. It was further
held that as Limitation Act does not apply and jurisdiction of Civil Court
is entirely barred in matters governed by 1971 Act, there is no period of
limitation for recovery of damages for unauthorized use and occupation
of Govt. Company's quarter by its employees. It is held by the Hon'ble
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Delhi High Court that aforesaid decision of Madhya Pradesh High Court
to the proceedings under Public Premises(Eviction of Unauthorized
Occupants) Act, 1971, the provisions of Limitation Act does not apply.
The provisions of Sec.7(2) which does not impose any restriction on the
Estate Officer to assess the damages within a specific time. Section 15 of
the Act, 1971 barred jurisdiction of Civil Court to deal with the matters
governed by the Public Premises Act. So far as the provisions of Public
Premises Act are concerned, it is well settled that Estate Officer is not a
Court so provisions of Limitation Act would not apply to the eviction
proceedings before the Estate Officer. Moreover, the cause of action is
continuing one. Therefore, contention of the respondent that application
is barred by the limitation is not sustainable.
33. In the result, I have no hesitation to hold that applicant
proved that premises is Public Premises within the meaning of 'public
premises'. The applicant has also proved that respondent and other sub
tenants are the unauthorized occupants of the application premises.
Tenancy is terminated as period of Lease Deed is over. The applicant
has further proved that respondent is occupying the premises after
termination notice without any authority. She has inducted the sub
tenants after initiation of eviction proceedings. Therefore, sub tenants
are also unauthorized occupants of the application premises. Therefore,
the applicant is entitled to recover the arrears of rent and compensation.
As such, I answer the point Nos.1 to 5 accordingly.
AS TO POINT NO.6
34. Estate Officer has allowed the application and while
allowing the application, Estate Officer has considered that tenancy was
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terminated as it was only for 50 years. After completion of 50 years,
respondent has to hand over the possession of application premises to
the applicant, which she has not handed over. Estate Officer has also
considered that the premises in application is public premises within the
meaning of The Public Premises Act. While considering that respondent
is unauthorized occupant, Estate Officer has considered the every aspect
and sufficient opportunity is given to the respondent. The admissions
given by the witness of the respondent sufficiently shows that the
premises was lease out only for 50 years and said period is over and
therefore, termination notice is given. As the respondent is occupying
the premises after termination of tenancy, she has used and enjoyed it.
The evidence of respondent's witness further shows that she has
collected the rent from sub tenants. Thus, she has received the benefit
from the said premises. Evidence of witness examined by the respondent
itself shows that premises was let out to sub tenants. Thus, evidence on
record is sufficient to show that respondent and other appellants are
unauthorized occupants. Thus, evidence on record has sufficiently
proved that respondent and other appellants (i.e. appellants in M.A.
No.145/2019) are unauthorized occupants. The judgment of the
Hon'ble Supreme Court in Suhas Pophale's case is not applicable in the
present case as the Bombay Rent Act and Maharashtra Rent Control Act
are not applicable in respect of premises of the applicant. Thus,
respondent failed to prove that she is protected tenant under the
provisions of Bombay Rent Act and Maharashtra Rent Control Act. The
guidelines issued by the Government are in respect of genuine tenant.
By no stretch of imagination, it can be said that respondent and other
appellants are genuine tenants. Thus, no interference is called for in the
order passed by the Estate Officer. As such, I answer Point No.6 in
negative. Thus, both the appeals have no merits and liable to be
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dismissed. Hence, I proceed to pass the following order:
ORDER
1. Misc Appeal No.112 of 2019 and Misc Appeal No.145 of 2019
are hereby dismissed with costs.
2. Original Judgment is kept in Misc. Appeal No.112 of 2019.
3. R and P be returned back to the applicant/BPT.
Date: 1.3.2022 (Urmila S. Joshi Phalke)
Principal Judge,
City Civil Court,Gr.Bombay.
Dictated on : 1.3.2022
Transcribed on : 5.3.2022
Signed on : 5.3.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 8.3.2022 (At 5.44 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
SMT.URMILA S.JOSHIPHALKE
(C.R.No.19)
Date of Pronouncement of Order 5.3.2022
Order signed by P.O. on 8.3.2022
Order uploaded on 8.3.2022
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