Final Order 1

Order Details: Copy of Judgment
Pdf Text: Janak Mulraj Tanna Vs. The Board of Trustees of Port of Mumbai & Ors.
Received on : 23.04.2018
Registered on : 05.10.2019
Decided on : 22.12.2020
Duration : Y M D
02 7 29
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Miscellaneous Civil Appeal No.166 of 2019
(CNR No. MHCC01-005466-2018)
Janak Mulraj Tanna
Aged 56 years, An adult Indian Inhabitant,
and one of the partners and authorized
representative of M/s. Haridas Vishram & Co.
having their address at Haridas Mansion 91,
Kazi Sayyed Street, Mumbai 400003 ..Appellant
Versus
1. The Board Of Trustees Of Port Of Mumbai
Having its registered office at Vijay Deep,
Shoorji Vallabhdas Marg Fort, Mumbai 400001
2. Estate Officer - S.N. Shaikh
Having his address at Mumbai Port Turst
5th Floor, Vijay Deep Building,
Ballard Estate, S.V. Marg, Mumbai 400 001
3 Indumati Gordhandas Sachdev
Residing at 140-30 Beech Avenue, ..Deleted
Appt-2 K, Flushing N.Y., 11355 USA (Since Deceased)
3A. Atulkumar Gordhandas Sachdev
Residing at 214, 8th Street, Bethpage,
New York, 11714 USA.
4. Smt. Usha Barai
Residing at 361, Mckinley Ave,
Edison, N J 08820
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5. Mumbai Metropolitan Regional Development Authority
Bandra Kurla Complex, Bandra (E),
Mumbai- 400 051. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL
Dated : 22nd December,2020
(C.R.No.19)
Adv. Mr. Vishal Thaker a/w Adv. Anjali Trivedi i/b V. Thakers
Advocates
for the appellant.
Adv. Mr. Amir Arsiwala a/w Adv. Roop Basu and Adv. Harsha Asnani i/b
The Law Point for respondent Nos.1 and 2.
None present
for respondent Nos. 3 and 4.
Adv. Mr. Vishesh Kalra a/w Adv. Ms. Shubhangi Subhedar
for
respondent No.5.
O R A L J U D G M E N T
Order passed by Respondent No.2 Estate Officer dt. 26th February,
2018 pertaining to eviction and damages in respect of Plot No.8 (Old
Plot No.110) admeasuring 272.39 square meters at Sewree Estate,
Mumbai -400 033 is assailed in the present appeal.
2. At the outset, it would be appropriate to mention that the
impugned order was passed against Respondent Nos. 3 and 4 to the
present proceedings. Since respondent No.3 was deceased and apart
from respondent No.4, Respondent No.3A was her legal heir, he was
brought on record. However, these respondents neither contested the
proceedings before the Estate Officer nor they appeared before this
Court.
3. Respondent No.5 Mumbai Metropolitan Regional Development
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Authority was not party before the Estate Officer. They preferred
Chamber Summons No. 1583 of 2018 and sought impleadment stating
therein that the subject premises was required for Sewree Nhava Sheva
Trans Harbour Link Project and accordingly, an agreement was entered
between them and Mumbai Port Trust. However, because of interim
order passed in the present proceedings, the said project was getting
delayed. Vide order dated 11.3.2020, Chamber Summons was allowed
and Mumbai Metropolitan Regional Development Authority (MMRDA)/
respondent No.5 was impleaded as a party to the present proceedings.
4. The appellant who was not a party to the proceedings before the
Estate Officer has preferred the appeal since according to him, the
tenant of the subject premises was M/s. Haridas Vishram & Co. He was
one of the partners and authorized representative of M/s. Haridas
Vishram and Co. which was occupying the structure on the subject
premises.
5. It is not in dispute that respondent No.1 is the owner of the
subject property and that they filed application with Respondent No.2
Estate Officer under Sections 4 to 7 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971.
6. According to the appellant, proceedings were initiated against
Respondent Nos.3 and 4 who were neither partners nor occupants of
the said property nor they were residing in India with a view to usurp
the property of the appellant’s firm. Consequently, Respondent No.2
passed the ex-parte order as aforesaid.
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7. It is contended by the appellant that under agreement dt.
2.1.1959, the firm M/s. Haridas Vishram & Company acquired the
subject premises from the original owner and occupant Mr.I.I. Merchant
and vide letter dt. 28.5.1959, respondent No.1 approved the said
agreement and allowed transfer of tenancy in the name of the partners
of the firm and by agreement dt. 12.9.1960, respondent No.1 confirmed
tenancy of the partners and consequently, rent receipts were issued in
the name of Pitambardas Haridas Tanna and others of Haridas Vishram
& Co.
8. In the year 1963, respondent No.1 filed Suit No. 5532 of 1963
against said Pitambardas Haridas Tanna and another. The said suit was
disposed of on Consent Terms dt. 17.12.1970.
9. On 15.3.1985, the appellant joined as partner of the firm and on
the same day, Pitambardas Haridas Tanna retired as partner of the firm
and as of on 15.3.1985 Laxmidas Tanna, Nutan Pitambardas Tanna,
Vasantkumar Laxmidas Tanna and Janak Mulraj Tanna became the
partners of said M/s. Haridas Vishram & Co. This reconstitution was
communicated to respondent No.1.
10. On 22.4.1989 Laxmidas Haridas Tanna expired and his wife
Shantaben Laxmidas Tanna was taken as the partner. The rent was
being regularly paid. On 17.8.1993, respondent No.1 addressed a letter
to the firm requiring details of the partners/tenants and accordingly the
extant constitution of partners was communicated to respondent No.1
on 19.10.1993.
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11. On 8.11.1993 the firm addressed a letter to respondent No.1 for
conversion of monthly tenancy to 30 years or renewable lease pursuant
to the judgment of the Hon’ble High Court. On 18.2.1994 further
queries were raised by the Estate Manager of Respondent No.1 which
were replied and by letter dt. 5.7.1994, the Estate Manager of
Respondent No.1 sought Indemnity Bond from the legal representatives
of Late Pitambardas Haridas Tanna and accordingly the same was
executed by legal heirs including the appellant and after this, the
appellant was assured of change of record of tenancy and rent was
continued to be paid.
12. In 1996, Shantaben Tanna expired and respondent Nos.3 and 4
were added as partners on 26.10.1996. Respondent Nos. 3 and 4 retired
in 1998 and this intimation was given to respondent No.1.
13. Despite aforesaid correspondence, the name of the appellant and
other heirs of Pitambardas Haridas Tanna was not incorporated as
tenant and post 2004, there was no demand for payment of rent and it
was informed that the records were not rectified of the old tenants and
as such the demands were kept in abeyance.
14. On 16.11.2016, notice was received from respondent No.1 in the
name of Respondent Nos.3 and 4 stating about the arrears and the
requirement of subject premises by M.M.R.D.A. for construction of
Mumbai Trans Harbour Link Project.
15. Thereafter the appellant contacted the Estate Manager. He was
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informed about the proceedings before M.M.R.D.A. The appellant was
also informed that for infrastructure development, the acquisition is
inevitable and as such, the appellant was directed to approach
M.M.R.D.A. for compensation or allotment of another plot.
16. Accordingly, the appellant approached M.M.R.D.A. The appellant
was not informed about the proceedings before respondent No.2. He
was informed that since the appellant was not the tenant, neither rent
could be accepted from him nor notice could be issued to him.
17. On 29.9.2017, the appellant received notice from Respondent
No.2 against respondent Nos.3 and 4 and thereafter vide letter dt.
27.10.2017, he replied to the said notice stating that in absence of any
authority from respondent Nos. 3 and 4, no communication or
representation would be entertained. The appellant also approached
M.M.R.D.A. on 5.12.2017 and also addressed a letter to the Estate
Manager of Respondent No.1.
18. On 3.3.2018 the impugned order was received. Thereafter, the
appellant appeared before M.M.R.D.A. Compensation Committee on
15.3.2018 headed by Hon’ble Mr. Justice Mane and while the impugned
order was sought to be implemented, he thought it fit to challenge the
same by filing the present appeal contending interalia that the
proceedings before Estate Officer were against the persons who were
not tenants as against the actual occupant/tenant. Despite respondent
No.1 being aware about the reality, the original tenants were
Pitambardas and another, however the notice was issued against
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respondent Nos. 3 and 4. The appellant was not allowed to participate
in the proceedings and thus there was violation of principles of natural
justice.
19. It is also contended that although on the record of respondent
No.1, Pitambardas Tanna and Laxmidas Tanna were tenants, no notices
were issued to them. It is submitted that respondent No.5 has illegally
and malafidely intervened in this appeal and it is finally contended that
respondent No.5 ought to deposit compensation amount in respect of
the subject premises before any relief is granted in favour of respondent
No.5 and on the aforesaid grounds, it is claimed, the appeal deserves to
be allowed.
20. On the other hand, it is the case of respondent No.1 that monthly
tenancy in respect of the subject premises was created in favour of
Pitambardas and Laxmidas who were tenants trading as M/s. Haridas
Vishram & Co. It was specifically stated that these two persons would
be joint tenants and that no tenancy was created in favour of M/s.
Haridas Vishram & Co.
21. Shri Pitambardas H.Tanna expired on 20.1.1989 and as per the
rules of survivorship under joint tenancy, all the rights and interest
devolved upon Laxmidas Tanna and after demise of Laxmidas Tanna on
22.4.1989, respondent Nos.3 and 4 were rightly recognized as tenants.
22. The subject premises was affected by alignment of Mumbai Trans
Harbour Link Project and was required by M.M.R.D.A. and the tenants
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of the subject premises as on 31.3.2017 had run into arrears of
Rs.11,88,689.37 and accordingly, notice of termination was issued to
respondent Nos. 3 and 4 and since the premises were not vacated,
proceedings were initiated under the Public Premises Act.
23. It is submitted that all the notices, including the notices of
termination and also the statutory notice under the Public Premises Act
were received by the appellant himself, however, neither respondent
Nos.3 and 4 nor the appellant appeared before Respondent No.2 and
matter proceeded ex-parte.
24. It is contended that the appellant being the stranger to the
tenancy, there was no reason why the notice was to be issued to the
appellant and furthermore although the appellant himself received all
the notices on behalf of respondent Nos.3 and 4 , he had chosen not to
appear before respondent No.2 and in any case the present appeal at
the behest of the appellant was wholly incompetent since the appellant
has no locus or right in the subject premises.
25. It is further submitted that all the notices were served as per the
provisions of the Public Premises Act and as such, every opportunity
was given for the tenants to appear and contest. Even otherwise, it is
contended that monthly tenancy has been duly terminated for non
payment of rent and after termination the tenants have become
unauthorized occupants and thus the appeal is sought to be dismissed.
26. According to Respondent No.5 the project is getting delayed
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because of the hindrance created by the appellant and the interim
orders passed by this Court. It is contended that if the appellant has
any right, he can claim compensation in accordance with the relevant
rules.
27. The rights in the entire land has been transferred to M.M.R.D.A.
and the Advisory Committee of M.M.R.D.A. headed by retired Hon’ble
Mr. Justice Mane has issued notice to respondent Nos. 3 and 4 and
appellant appeared therein and Advisory Committee after considering
all the material has rejected the claim of the appellant as well as
respondent Nos.3 and 4 and on all these grounds, the appeal is sought
to be dismissed.
28. From the aforesaid material, following points arise for my
consideration and my findings thereon for the reasons therefor are as
under:
POINTS FINDINGS
1. Whether the appellant has locus to file the
present appeal?
..In the Negative
2. Whether the appellant has any right in the
subject premises.?
..In the Negative.
3. Whether the principles of natural justice were
followed while passing the impugned order?
..In the affirmative
4. Whether the impugned order is just, proper
and legal?
..In the affirmative.
5. What Order? ..As per final order.
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R E A S O N S
Point Nos.1 to 4:
29. Since all these points are interlinked to each other, they are taken
up for consideration together. The fundamental question which requires
to be deliberated upon is as to who was the tenant of the subject
premises? According to the appellant, the firm M/s.Haridas Vishram &
Co. was the tenant of the premises and partners at that relevant time
i.e. Pitambardas Tanna and Laxmidas Tanna were tenants in common.
30. Whereas it is the case of respondent No.1 that tenancy was
created in the name of Pitambardas Tanna and Laxmidas Tanna who
were carrying on business as M/s. Haridas Vishram & Co. It was
specifically mentioned in the agreement dt. 12.9.1960 and letter dt.
28.5.1959 that the premises were allotted to Pitambardas Tanna and
Laxmidas Tanna and in such circumstances, they were joint tenants in
the premises and as per the rules of surviorship under joint tenancy
after death of Pitambardas Tanna on 20.1.1989, all the rights devolved
upon Laxmidas Tanna and upon death of Laxmidas on 22.4.1989 only
respondent Nos. 3 and 4 could be recognized as tenants and thus they
were duly so recognized.
31. If we peruse the documents by which the tenancy was created, it
is amply clear that the tenancy was created in the name of Pitambardas
Tanna and Laxmidas Tanna and not in the name of firm and if this was
done under one document, naturally it was the joint tenancy and if it
were to be joint tenancy, the devolution of interest is by way of
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survivorship and not otherwise.
32. Learned Counsel for the appellant has relied upon the judgment
of the Hon’ble Bombay High Court in the case of
Ravinder Singh
Ahluwali of Mumbai Indian Inhabitant Vs. Kuljinder Singh Ahluwalia
Mumbai Indian Inhabitant and Ors.[(MANU/MH/0361/2009) Decided
on 7.5.2009], wherein the Hon’ble Bombay High Court at an interim
stage has considered the possession in respect of the property of the
partnership firm vis-a-vis the interest of the partners and their rights.
However, said judgment would not be of any help in the present matter
since in the said matter, the dispute is whether the tenancy rights of
partnership firm would devolve upon the partners. But in the present
case it is amply clear from the record that the partnership firm itself has
no tenancy rights and erstwhile partners were the joint tenants of the
partnership firm.
33. Further reliance has been placed on the judgment of the Hon’ble
Bombay High Court in the case of
Thrity Sam Shroff Vs. Mehroo
Meherji Vakil of Bombay and Ors. [(MANU/MH/0408/2010) Decided
on 12.4.2010], wherein the concept of joint tenancy and tenants in
common has been explained. Placing reliance on this judgment does not
help the appellant in whatsoever manner because not only this
judgment but also the judgment referred in that judgment in the case of
Harish Tondon Vs. Additional Allahabad U.P. and Ors. [(1995)1 SCC
537)] of the Hon’ble Supreme Court clearly explains the manners in
which the tenants in common and joint tenancy is to be ascertained and
if it is the case of joint tenancy how such tenancy devolves and it is
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abundantly clear in the present case after applying the principles laid
down therein that Pitambardas Tanna and Laxmidas Tanna were the
joint tenants and after death of Pitambardas, the tenancy by
survivorship devolved upon Laxmidas and upon death of Laxmidas, his
children were recognized as heirs and in such circumstances, the
appellant is nowhere to be found in picture as far as tenancy rights are
concerned.
34. As regards the maintainability of the appeal at the behest of the
appellant is concerned, Sec. 9 of The Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 clearly stipulates that the appeal
shall lie from an order such as the one impugned in the appeal. The
provisions does not state that the appeal could be maintained by ‘any
person aggrieved’ as is the case with the appeals under the Code of Civil
Procedure.
35. It is trite law that right of appeal which is a statutory right
cannot be enlarged to include persons who are otherwise not made
specifically entitled to file appeal. Learned Counsel for respondent No.1
has relied upon the judgment of the Hon’ble Supreme Court in the case
of
Board of Trustees of the Port of Kolkata Vs. Kalipada Bhakat and Ors.
[(2014)10 Supreme Court 573]. In this matter, the monthly tenancy in
respect of plot of land created in favour of respondent No.2 tenant was
terminated and eviction proceedings were initiated against the said
respondent. Respondent No.1 appeared in the said proceedings as
power of attorney holder of respondent No.2 and ultimately eviction
order was passed. Respondent No.2 did not file an appeal but the
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possession was handed over to respondent No.1 and then after
respondent No.1 attempted to file an appeal, it was held that
respondent No.1 has no locus to maintain the appeal. Respondent No.1
challenged the order before the Hon’ble High Court. However, the
Hon’ble Supreme Court held that appeal of respondent No.1 was not
maintainable.
36. As discussed hereinabove, in the present case, respondent Nos. 3
and 4 who were entitled to opportunity of hearing before the Estate
Officer, were issued notices as per the provisions of The Public Premises
Act. Infact, the record reveals that these notices were personally
received by the appellant and in such circumstances, the appellant was
very much aware about the initiation of proceedings before the Estate
Officer. However, the appellant cleverly chooses not to make any claim
before the Estate Officer. However, writes a letter to the Estate Manager
of respondent No.1 who has no control over the proceedings going on
before the statutory authority and after failing to get any relief before
the Advisory Committee of M.M.R.D.A. chooses to persist with the
appeal rather than availing remedies in accordance with law against the
minutes/order of the Advisory Committee.
37. In the aforesaid circumstances, I have no hesitation to hold that
not just the appellant has no right in the tenancy, he also does not have
any locus to file the present appeal. The order impugned stands passed
after adhering principles of natural justice and giving proper
opportunity of hearing to the concerned persons. The impugned order
even otherwise does not suffer from any illegality since a monthly
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tenancy has been duly terminated and thereafter the possession, even of
a tenant cannot be deemed as authorized. As such, I answer the points
accordingly and pass the following order:
O R D E R
Misc. Appeal No. 166 of 2019 stands dismissed.
22.12.2020 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 22.12.2020
Transcribed on : 22.12.2020
Signed by HHJ on :22.12.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs. Bharti S. Parab
Upload date and time: 23.12.2020 (at 10.45 am)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 22nd December,2020
Order signed by P.O. on 22nd December,2020
Order uploaded on 23rd December,2020
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