Full Judgment Text
2014:BHC-AS:16082
WP.3181.2014+16.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3181 OF 2014
Maharashtra Fisheries }
Development Corporation Ltd., }
A Government of Maharashtra }
Undertaking, through their }
Divisional Manager, having office }
at N. K. M. International House, }
rd
3 floor, 178, Backbay }
Reclamation, Residing, Babubhai }
M. Chinai Marg, Mumbai 400 020 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, having its office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 038 }
}
2) Union of India }
Through Director General, }
Government of India, Bombay }
Base, Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) having }
their address at Sassoon Dock }
Estate, Colaba, Bombay 400 005 }
}
3) The State of Maharashtra }
through Under Secretary }
Agricultural and Dairy }
Development and Fisheries }
Department, Mantralaya Annexe, }
th
5 floor, Mumbai 400 032 }
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4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (W), Mumbai – 400 051 }
}
5) M/s. Krishna Sea Food }
}
6) M/s. Sonia Fisheries }
}
7) Shri. Nivrutti B. Pawale }
}
8) M/s. Lanke Sea Foods }
Suppliers }
}
9) Mahanagar Cooperative }
Bank Ltd. }
}
10) Mr. Balyogi }
}
11) M/s. D. P. Sea Food }
}
12) Darya Sagar Patpedhi }
Limited }
}
13) Shri Ramdas Waval }
}
14) United Agencies }
}
15) Shri Popat Patil }
}
16) M/s. Patil Fisheries }
Nos. 5 to 16 all at BPT Godown }
No. 1773, Situated at Sassoon }
Dock Estate, Mumbai 400 005 } Respondents
WITH
WRIT PETITION NO. 3168 OF 2014
Shri. Ramdas R. Waral, }
Adult, Indian Inhabitant, Aged }
about 59 years, Occupation: }
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Business, having address at B. P. T. }
Godown No. 1773, situated at }
Sasson Dock Estate, Mumbai }
400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3169 OF 2014
M/s. Darya Sagar Pathpedhi Ltd. }
a credit society registered under }
the Maharashtra Cooperative }
Societies Act, having its address }
C/o. M/s. Patil Fisheries B.P.T. }
Godown No. 1773, Situated at }
Sasson Dock Estate, Mumbai }
400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WITH WRIT PETITION NO. 3170 OF 2014
Shri. Popat Patil, adult Indian }
Inhabitant, aged 68 years, }
Occ. Business, having his address }
at C/o. M/s. Patil Fisheries, }
B.P.T. Godown No. 1773, situated }
at Sasson Dock Estate, }
Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3210 OF 2014
M/s. United Agencies, }
A Proprietorship of Mr. Pathrose }
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D'souza, Adult, Indian inhabitant }
age 55 years, Occ. Business, }
having address at B.P.T. Godown }
No. 1773, Situated at Sasson Dock }
Estate, Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3213 OF 2014
M/s. Patil Fisheries, a partnership }
firm registered under the Indian }
Partnership Act, 1932, having its }
address at B.P.T. Godown No. }
1773, Situated at Sassoon Dock }
Estate, Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3186 OF 2014
M/s. Sonia Fisheries }
A Partnership Firm, carrying on }
business from 1773, BPT Godown, }
Sassoon Dock Estate, }
Colaba, Mumbai 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
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Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3187 OF 2014
M/s. Lanke Seafood Suppliers }
A Partnership Firm carrying on }
business from 1773, B.P.T. Godown }
Sassoon Dock Estate, Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
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2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3188 OF 2014
Nivrutti Daji Pawle }
Proprietor of M/s. N. D. Pawle }
Seafood Suppliers, Aged years }
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Occupation – Business, Carrying }
on business from 1773, B.P.T. }
Godown, Sassoon Dock Estate }
Colaba, Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
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6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO 3189 OF 2014
Krishna Nivrutti Pawle }
Proprietor of M/s. Krishna Seafood}
Suppliers, Aged years, }
Occupation – Business, carrying }
on business from 1773, B.P.T. }
Godown, Sassoon Dock Estate, }
Colaba, Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
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Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3182 OF 2014
The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The State of Maharashtra }
through Under Secretary to the }
Government of Maharashtra }
Agricultural & Dairy Development }
& Fisheries Department, }
th
Mantralaya Annexe, 5 floor }
Mumbai – 400 032 }
}
3) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
4) M/s. Sisons Fisheries }
}
5) Shri. Abdul Hassan Bary }
}
6) Shri. Chandrakant S. Dhanu }
}
7) M/s. Indian Sea Food }
Corporation }
}
8) M/s. Anita Sea Food Exports }
}
9) M/s. Ram B. Salvi }
}
10) M/s. Mulica Foods }
}
11) M/s. Bombay Sea Food }
}
[Nos. 4 to 8 at B.P.T. Godown No. }
158, Situated ad Sassoon Dock }
Estate, Mumbai – 400 005] }
}
12(a) Gangadara Ponkara Shetty }
}
12(b)Vitthala Ponkara Shetty }
}
12(c) Monappa Ponkara Shetty }
[12(a) to 12(c) of: Sindhu Niwas }
Post and Village Yekkar, }
Mangalore, Karnataka] }
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12(d)Shankar Ponkara Shetty }
Building No. 5, Plot No. 21, }
Kamdhenu Complex, Hari Om }
Nagar, Mulund (E), }
Mumbai – 400 081 }
}
12(e) Mrs. Sushila Seetarama }
Shetty, House No. 189/3, }
Near Premier Company }
Christian Village, Old Kurla, }
Mumbai – 400 070 }
}
12(f) Mrs. Lalitha Narayan Shetty }
Building No. 5, Plot No. 21, }
Kamdhenu Complex, Hari Om }
Nagar, Mulund (E), }
Mumbai – 400 081 }
}
12(g) Mrs. Jayanti Karunakara }
Shetty, C207, Brindavan Society }
Y. R. Tawade Road, Near Railway }
Station, Dahisar (West), }
Mumbai – 400 068 } Respondents
WITH
WRIT PETITION NO. 3190 OF 2014
M/s. Anita Seafood Exports, }
a partnership firm duly registered }
under the provisions of the indian }
Partnership Act, 1932, carrying }
on business from 158, B.P.T. }
Godown, Sassoon Dock, Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
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“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3191 OF 2014
Iqbal Ahmed Dedrani, }
Indian Inhabitant of Bombay }
Aged – 55 years, Occupation }
Business, Proprietor of M/s. }
Bombay Seafood carrying on }
business from 158, B.P.T. Godown }
Sassoon Dock Estate Colaba }
Bombay 400 005 } Petitioner
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versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3192 OF 2014
Abdul Hassan Bary, }
Indian Muslim Inhabitant }
of Bombay, aged – 53 years, }
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Occupation carrying on }
business from 158, BPT Godown, }
Sassoon Dock Estate, Colaba, }
Bombay 400 005 }
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
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WITH
WRIT PETITION NO. 3193 OF 2014
Chandrakant Dhanu, }
Indian Inhabitant of Bombay, }
Aged – 70 years, Occupation }
Business, Carrying on business in }
the name and style of M/s. Danda }
Foods from 158, BPT Godown, }
Sassoon Dock Estate Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
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a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3194 OF 2014
Ishwar Choudhary, }
Indian Inhabitant of Bombay, }
Aged – 68 years, Occupation }
Business, Proprietor of M/s. }
Sissions Fisheries carrying on }
business from 158, BPT Godown }
Sassoon Dock Estate Colaba }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
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4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3195 OF 2014
Imtiaz Shroff, }
Indian Muslim Inhabitant of }
Bombay, Aged 51 years, }
Occupation – Business, Proprietor }
of M/s. Indian Sea Food }
Corporation, Carrying on business }
from 158, BPT Godown, Sassoon }
Dock Estate Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
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Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
Mr. Bhupesh V. Samant for the Petitioners
in WP/3181/2014 and WP/3182/2014.
Mr. P. A. Sarwankar i/b. M/s. Sarwankar
and Co. for the Petitioners in
WP/3168/2014 to WP/3170/2014,
WP/3210/2014 and WP/3213/2014.
Mr. Viren B. Ashar with Mr. Ashok K. Goel
for the Petitioners in WP/3186/2014 to
WP/3195/2014.
Mr. U. J. Makhija with Mr. Rakesh Singh
i/b. M/s. M. V. Kini and Co. for Respondent
No. 1 (B.P.T.).
Mr. R. M. Patne AGP for Respondent Nos. 3
and 4 (State).
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CORAM : R. M. SAVANT, J.
DATED : JULY 24, 2014
ORAL JUDGMENT :
Rule in all the Petitions, with the consent of the learned
Counsel appearing for the parties, made returnable forthwith and
heard.
2) The above Writ Petitions arise out of the orders both dated
rd
3 February, 2014, passed by the learned Judge of the City Civil Court,
Mumbai.
3) The above group of Petitions are divided in to two groups
of Petitions. One group consisting of 10 matters being Writ Petition No.
3181 of 2014 (lead matter) and others and the other group of 7 matters
being Writ Petition No. 3182 of 2014 (lead matter) and others.
The group consisting of 10 matters concerns eviction proceedings
being Case Nos. EO/E (49) (49A) (49B) (49C) in respect of premises
being Godown No. 1773 being Writ Petition No. 3181 of 2014, Writ
Petition Nos. 3168 of 2014 to 3170 of 2014, Writ Petition No. 3210 of
2014, Writ Petition No. 3213 of 2014, and Writ Petition Nos. 3186 of
2014 to Writ Petition No. 3189 of 2014.
The other group of 7 matters concerns eviction proceedings being
Case Nos. EO/E (50) (50A) (50B) (50C) in respect of premises Godown
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No. 158 being Writ Petition No. 3182 of 2014 and Writ Petition No.
3190 of 2014 to Writ Petition No. 3195 of 2014.
The Petitioners in all the above Petitions would be referred to as
per their status in the Eviction Petitions namely as original Respondent
Nos. 5 to 8 and 9 to 16.
rd
Though two separate orders dated 3 February, 2014 have been
passed by the learned Judge of the City Civil Court, Mumbai, the orders
are similar in content, as the facts are almost identical, in view of the
fact that the proceedings are under the Public Premises (eviction of
unauthorised occupants) Act, 1971 (hereinafter referred to as “the said
Act” for short). By the said orders, the learned Judge of the City Civil
Court has confirmed the orders passed by the Estate Officer both dated
th
7 December, 2009 in Case Nos. EO/E(49)(49A)(49B)(49C) of 1999
(for short “Eviction Petition No. 49 of 1999) and Case Nos. EO/E(50)
(50A)(50B)(50C) of 1999 (for short “Eviction Petition No. 50 of 1999)
filed by the Respondent No. 1 herein (for short “BPT”). However,
insofar as Eviction Petition No. 49 of 1999 is concerned, a corrigendum
th
came to be issued to the said order dated 7 December, 2009 on the
th
next day i.e. 8 December, 2009, by which, a statement of the
calculation of damages was incorporated in the main order. Insofar as
the order passed in Petition No. 50 of 1999 is concerned, there was no
such corrigendum issued.
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4) By the said orders passed by the Estate Officer, the Estate
Officer has ordered the eviction of the Respondent Nos. 5 to 8 and 9 to
16 from the premises in question. In the context of the challenge which
is raised in the above Petitions, it would be relevant to note at this stage
that insofar as the aspect of quantum of damages is concerned, the
Lower Appellate Court has remanded the matter back to the Estate
Officer for the limited issue of calculation of damages by following the
procedure which is mentioned in the operative part of the impugned
rd
order dated 3 February, 2014, which, for the sake of ready reference, is
reproduced herein under:
“ORDER
1. The Appeal Nos. 252/09 to 255/09, 258/09 to 262/09
and 265/09 are partly allowed.
2. The order passed by the Estate Officer on 7/12/2009 in
CASE NO. EO/E(49)(49A)(49B)(49C) OF 1999 is
maintained so far as the eviction, vacation and handing over
of the premises of BPT is concerned.
3. However, the matters are remanded to the Estate Officer
for deciding the limited point of calculation of damages.
4. The Ld. Estate Officer is directed to issue notice to both
the parties and to grant opportunity to both of them afresh for
hearing on the issue of calculation of damages and then to
pass appropriate order of damages according to law within a
period of Six months from the date of this order.
5. The Appeal Nos. 252/09, 258/09 to 262/09 and 265/09
are disposed off accordingly. ”
FACTUAL MATRIX:
5) The premises in question involved in the above proceedings
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are two godowns being No. 1773, which is in contention in the group of
10 Writ Petitions and godown No. 158, which is in contention in the
group of 7 Petitions. The said godowns admeasure 29,277 square feets
and 1184.42 square meters respectively. The Respondent No. 1 herein
is a Port Trust constituted under Section 3 of the Major Port Trust Act.
The Port of Bombay is the predecessor of the present BPT. The BPT, by
th
an indenture of lease dated 24 December, 1952, executed by the
Trustees of the Port of Bombay, leased out, in the Sassoon Dock Estate,
an area of 29,277 square feet (concerning godown No. 1773), to the
Union of India, which was the Respondent No. 1 in the Petitions before
the Estate Officer. The purpose mentioned in the lease was for running
an Ice Factory and Cold Storage. The covenants in the lease deed cover
the relationship between the Lessor and the Lessee. The godown No.
1773 are the premises which were covered by the lease deed and the
st th
lease period initially was from 1 December, 1948 to 30 November,
1968. It appears that before the expiry of the lease, the Union of India
transferred the Quick Freezing Plant, Cold Storage and the Ice Factory
to the State Government, which was the Respondent No. 2 before the
Estate Officer and a request was made to the BPT for assignment of the
premises to the Director of Fisheries, Government of Maharashtra.
However, the said assignment did not fructify, as the lease, by then,
expired. It appears that the Director of Fisheries, Government of
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Maharashtra applied for renewal of the lease and the BPT informed the
terms of renewal. In the interregnum, it appears that on the
establishment of the Maharashtra Fisheries Development Corporation
(for short “the MFDC:), the activities carried out by the Director of
Fisheries were transferred to the said Corporation and in view thereof,
the terms and conditions, on the basis of which the lease was to be
renewed, were accepted by the MFDC. The renewal was granted for a
period of 21 years on the same terms and conditions as the original
lease. Since the premises were transferred to the State of Maharashtra
by the Union of India, the State of Maharashtra accepted the offer made
by the BPT for renewal of the lease on the revised terms. It appears
that though the terms for renewal were accepted, the payments were
not made and therefore the BPT could not obtain the approval from its
Board of Trustees. It appears that the premises came to be handed over
by the Director of Fisheries to the MFDC in August, 1973 and the
MFDC, in turn, without prior permission of the BPT, handed over the
premises to the Maharashtra Rajya Machhimar Sahakari Sangh Ltd. (for
st
short “the MRMSS”) on 1 November, 1976. The said MRMSS
continued to be in occupation of the premises till 1985 and returned the
st
premises to the MFDC on 1 July, 1985.
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6) Insofar as the godown No. 158 is concerned, it appears that
the same was let out on a monthly tenancy basis to the MFDC. Insofar
as Godown No. 1773 is concerned, after the lease had come to an end,
the Respondents, including the MFDC, can be said to be tenants holding
over within the meaning of Transfer of Property Act. It appears that the
gamut of inspecting the premises from time to time was followed by the
BPT and this resulted in a notice of termination of tenancy being issued
nd
by the BPT through its Advocate on 22 December, 1995 addressed to
the original Respondent Nos. 1 to 4 that is the Union of India, State of
Maharashtra, Director of Fisheries and to MFDC. The notice was
founded on three fold grounds namely that the Respondent No. 4 i.e.
the MFDC has caused various unauthorised constructions, has
unlawfully sublet the premises to different parties and is in arrears of
nd
rent. The said notice dated 22 December, 1995 was replied to on
th
behalf of the MFDC vide letter dated 8 February, 1996 of its Advocate.
The MFDC, in its reply, stated that the parties have been allotted the
space in the godown No. 1773 and have been carrying out their work
since then. The MFDC accepted the fact that it was in arrears of rent
st st
from 1 July, 1985 to 31 December, 1995. However, it was contended
in the reply that after the funds are made available by the State
Government to the MFDC, the MFDC would be ready and willing to pay
nd
the arrears of rent. The said notice dated 22 December, 1995 was
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st
followed by a subsequent notice dated 21 May, 1998. It has been
mentioned in the said notice that the same has been issued without
prejudice to the earlier notice.
7) Since in the aftermarth of the said notice the situation did
not change, the BPT filed Petitions being Petition No. 49 of 1999 in
respect of godown No. 1773 and Petition No. 50 of 1999 in respect of
godown No. 158. The said Petitions were for eviction and for claiming
damages. The substratum of the said Petitions was the case of the BPT
in the said two notices of termination namely the three grounds which
were mentioned in the notices which have been adverted to in the
earlier part of this order. In the said Petitions, the factum of the
termination of the tenancy by the said notices was averred. It was
further averred that after the expiry of the notice period, the
Respondents are unauthorised occupants and the reliefs were sought in
the said Petitions on the basis of the identical grounds i.e. grounds 'A' to
'C' in Petition No. 49 of 1999, which grounds were identical to the
grounds mentioned in the notices. The said Petitions contain the
schedule of the property in respect of which eviction was sought of the
Respondents namely godown No. 1773 and godown No. 158
respectively. The Estate Officer, upon the filing of the Petitions and
finding that a prima facie case for issuance of notice under the Public
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Premises Eviction Act was made out, issued notice to the Respondents,
who were the Union of India, the State of Maharashtra, the Director of
Fisheries and the MFDC, who were arrayed as Respondent Nos. 1 to 4
to the said Petitions. The said notices were under Section 4 and Section
7 of the said Act. Insofar as the notice issued under Section 4 is
concerned, the ground on which the eviction were sought were made
the focus of the said notices asking the addressee to show cause against
the said ground and insofar as the notice under Section 7 is concerned,
the same contain the claim for damages on the basis that the
respondents had become unauthorised occupants.
8) After the Petitions were filed before the Estate Officer and
the notices being issued by the Estate Officer under Section 4 and
Section 7 of the said Act, the original Respondent Nos. 5 to 8 before the
Estate Officer i.e. the Petitioners in Writ Petition Nos. 3189 of 2014,
3186 of 2014, 3188 of 2014, 3187 of 2014 applied for their
impleadment in the said Petition No. 49 of 1999. Insofar as Eviction
Petition No. 50 of 1999 is concerned, the original Respondent Nos. 4 to
11 had filed applications, which were allowed and they accordingly
were joined as party Respondents being 4 to 11 to the said Eviction
Petition. Insofar as original Respondent Nos. 9 to 16 are concerned,
they were joined at the behest of the BPT. However, out of the said
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Respondents, only 5 have filed Writ Petitions, which are Writ Petition
Nos. 3169 of 2014, 3168 of 2014, 3210 of 2014, 3170 of 2014 and
3213 of 2014. Insofar as the said applicants are concerned, one Sonia
Fisheries can be treated as the lead applicant (Petitioner in Writ Petition
No. 3186 of 2014). The applications filed by the Respondent Nos. 5 to
8 were identical. It was averred in the said applications that they are in
occupation of the galas of the said BPT godown No. 1773 since the year
1977, that they have been put in possession by the Government of
Maharashtra and have since being carrying out their business. Insofar
as Sonia Fisheries is concerned, it has been averred by it in the
application that it has been paying rent of Rs. 14837/ per month to the
MFDC. It was further averred that any order that would be passed in
the proceedings initiated against the Respondent Nos. 1 to 4 would
prejudicially affect them and therefore the applicants should be heard
before any order is passed by the Estate Officer. The said applications
filed by the Respondent Nos. 5 to 8 were allowed by the Estate Officer
th
by order dated 10 October, 2000 and the said parties were impleaded
as party Respondent Nos. 5 to 8 to the Petition No. 49 of 1999. In view
of the fact that the Respondent Nos. 5 to 8 were impleaded, the BPT
filed applications for impleadment of the Respondent Nos. 9 to 16
before the Estate Officer. The said application of the BPT was also
allowed by the Estate Officer and accordingly the Respondent Nos. 9 to
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16 were impleaded as party Respondents to the Eviction Petition Nos.
49 of 1999 and 50 of 1999.
9) The MFDC filed its Written Statement in the said two
st
Eviction Petitions, which Written Statement is dated 21 December,
1999. It is pertinent to note that the MFDC in its Written Statement
accepted the fact that the Ice Factory, Cold Storage and Quick Freezing
th
Plant were transferred to the MRMSS by the order dated 29 July, 1976
passed by the Government of Maharashtra and that the said assets were
st
again transferred back to the MFDC by the order dated 1 July, 1985. It
has further been averred by the MFDC that minor internal adjustments
in the premises were made as per the business requirements. It is
averred that the same has been done without structurally affecting the
premises and therefore the same does not constitute an unauthorised
work or construction. Insofar as the case of the BPT about arrears of
rent is concerned, the MFDC has averred that it has remained in arrears
st
from 1 July, 1985 due to its poor financial condition. It is further
th
averred that the MFDC paid some rent in 1998 and by letter dated 26
March, 1999 expressed its readiness and willingness to pay rent in
installments. Hence, the fact that some alterations were done in the
leased premises was admitted by the MFDC as also the fact that the
Cold Storage, Ice factory and Quick Freezing Plant were handed over to
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the MRMSS as also the factum that the MFDC was in arrears was
admitted.
10) Insofar as the newly added Respondents is concerned, as
indicated above, the replies were identical. A reference could be made
to the reply of the said Sonia Fisheries (who is the Petitioner in Writ
Petition No. 3186 of 2014). The said Sonia Fisheries took a stand that
the relief sought by way of possession on account of subletting is barred
by limitation. It was further averred by the said Sonia Fisheries that the
BPT has waived the right to claim possession. Insofar as the additions
and alterations are concerned, the said allegation was sought to be
dealt with by contending that the infrastructure is provided for storage
of marine products and water products. It was lastly averred that the
notice has not been given to the Respondent Nos. 1 to 4 under Section
80 and that no notice has been given to the Respondents meaning
thereby that the proceedings have been initiated under the said Act
without notice being issued to the Respondent Nos. 1 to 4 as well as the
applicant. The said Sonia Fisheries reiterated that it is paying
Rs.14837/ per month to the MFDC.
11) In the background of the aforesaid pleadings, the Estate
Officer framed as many as 18 issues. Amongst the issues and
considering the challenge which is raised in the above Petition, the core
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issues, in my view, would be issue numbers 1, 3, 4, 7, 8 and 9, which,
for the sake of ready reference, are reproduced herein under:
“ISSUES
1. Do the Petitioners prove that the premises in Petition are
public premises?
2. …..
3. Do the Petitioners prove that the Respondent No. 4
and/or 4 unlawfully sublet or unlawfully parted with the
premises in Petition in favour of Maharashtra Rajya Machhimar
Sahakari Sangh Ltd. without prior permission of the Petitioners
as alleged in paras 7 and 16 of the Petition?
4. Do the Petitioners prove that the Respondent No. 4
unauthorisedly allowed/used freezing tunnel into peeling shed
and also allowed/constructed unauthorised cabins at the first
floor level without the permission of the Petitioners?
….........
7. Do the Petitioners prove that the tenancy/holding over of
Respondents No. 1, 2, 3 & 4 in respect of premises in Petition
st
has been duly terminated by service of notice dated 21 May,
1988?
8. Do the Respondents No. 5 to 16 who have been joined in
the above Petition prove that they have any right of any nature
whatsoever in the premises in the Petition or any part thereof?
9. Do the Respondent No. 4 prove that the provisions of
Bombay Rent Act are applicable to the premises in Petition?”
12) The parties adduced evidence in assertion of their
respective cases. The witnesses of the BPT were cross examined on
behalf of the newly added Respondents as also the MFDC, by their
learned Counsel. The Estate Officer has recorded a finding on each of
the said core issues. Insofar as the issue No. 1 is concerned, the Estate
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Officer has recorded a finding that it is proved that the premises in
question are public premises and that the MFDC has failed to prove that
the provisions of the Bombay Rent Act are applicable to the premises in
question. Insofar as the issue No. 3 is concerned, the Estate Officer, on
a consideration of the material on record, held that the BPT has proved
that the Respondent Nos. 3 and 4 have unlawfully sublet or unlawfully
parted with the premises in favour of the MRMSS Limited without prior
permission of the BPT. Insofar as the issue No. 7 is concerned, the
Estate Officer held that holding over of the tenancy by the Respondent
st
Nos. 1 to 4 has been duly terminated by the notice dated 21 May,
1998. Insofar as the issue No. 8 is concerned, the Estate Officer held
that the Respondent Nos. 5 to 16, who were later on joined in the said
Petition have failed to prove that they have any right in the premises
covered by the said Eviction Petition No. 49 of 1999 or 50 of 1999.
Insofar as the issue No. 4 is concerned, the Estate Officer held that there
was unauthorised conversion of the Freezing Tunnel into Peeling Shed
and that the MFDC has allowed the unauthorised construction of the
cabins on the first floor low level without the permission of the BPT.
Since an issue of violation of principles of natural justice was sought to
be put up before the Estate Officer on the ground that sufficient
opportunity was not given to the added Respondents, the Estate Officer
held that the principles of natural justice were followed through out the
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proceedings and both the parties were given sufficient/adequate
opportunity to present/prove their case. Since one of the added
Respondent was a Cooperative Bank i.e. the original Respondent No. 9,
the Estate Officer held that the said Respondent No. 9 is not entitled to
the concession or protection in terms of the principle laid down in the
1
case of Jamshed H. Wadia vs. Board of Trustees, Port of Mumbai and that
the Respondent No. 9 is also liable to be evicted under the provisions of
the said Act. The Estate Officer accordingly passed an order of eviction
against the Respondents in both the Eviction Petitions i.e. Petition No.
49 of 1999 and 50 of 1999 and also ordered the payment of damages
under Section 7 of the said Act, which are mentioned in the operative
part of his orders. Insofar as Petition No. 49 of 1999 is concerned, as
mentioned herein above, the corrigendum to the said order was added
th
on the next day i.e. 8 December, 2009 thereby a table of calculation of
th
damages was incorporated in the original order dated 7 December,
2009.
13) The Respondents, aggrieved by the said orders both dated
th th
7 December, 2009 and the corrigendum dated 8 December, 2009
issued in Petition No. 49 of 1999, filed Appeals under Section 9 of the
said Act in the Bombay City Civil Court. The said Appeals were
numbered as Misc. Appeal Nos. 252 of 2009, 255 of 2009, 258 of 2009,
1 . AIR 2004 SC 1815
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262 of 2009 and 265 of 2009 in Case No. 49 of 1999 and Misc. Appeal
Nos. 27 of 2010 to 31 of 2010, 35 of 2010, 36 of 2010 and 38 of 2010
in Petition No. 50 of 1999. The said Appeals were disposed of by the
th
learned Judge of the City Civil Court by Judgment and order dated 20
July, 2012 and an order of eviction as also payment of damages was
th
passed. The said Judgment and order dated 20 July, 2012 passed by
the learned Judge of the City Civil Court was challenged by the
Petitioners herein by filing Writ Petitions in this Court. A learned Single
of this Court held that the disposal of the Appeals was not in terms of
the law laid down by the Apex Court in the case of Santosh Hazari vs.
2
Purshottam Tiwari and therefore, set aside the orders passed by the
Appellate Court i.e. the learned Judge of the City Civil Court, Mumbai
and remanded the matter back to the City Civil Court for a denovo
consideration of the said Appeals. It is on remand that the instant
rd
orders both dated 3 February, 2014 dismissing the two sets of Appeals
were passed by the learned Judge of the City Civil Court, Mumbai.
14) The Appellate Court, as can be seen from the impugned
orders, had framed the following three issues, which are contained in
paragraph No. 9 of its order. The same is reproduced hereinunder for
the sake of ready reference:
2 2001 (2) Mh. L. J. 786
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“9. From the rival pleadings of the parties, the following
points arise for my consideration and determination;
1) Do the appellants prove that the order
passed by Estate Officer regarding eviction
is bad in law and perverse and not
enforceable?
IN THE
NEGATIVE
2) Whether order passed by Estate officer
regarding damages can be upheld?
IN THE
NEGATIVE
3) Whether the impugned order needs to
be set aside in appeal?
4) What Order? As per final
order
”
15) Hence, insofar as the first issue, which was framed by the
Appellate Court, is concerned, the same encompasses within itself the
three grounds on which the eviction of the Respondents was sought, as,
undisputedly, the eviction has been passed by the Estate Officer by
sustaining the three grounds on which the BPT was seeking the eviction
of the Respondents. The gist of the reasoning of the Appellate Court, as
can be seen from the impugned orders, is that the Estate Officer did not
commit any error by arriving at a finding that the claim for damages is
within limitation. Since the thrust of the challenge on behalf of the
added Respondents i.e. the parties which are put in possession by the
MFDC was on the violation of the principles of natural justice, which
violation was sought to be buttressed by contending that a proper
opportunity to crossexamine the witness was not given to the said
Respondents as also the notice under Section 4 and Section 7 was not
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served upon the Respondent Nos. 5 to 8. The Appellate Court negatived
the said contention by observing that that said Respondent Nos. 5 to 8
had filed applications for impleadment, which applications were
allowed and therefore, they were joined at their own request. The
Appellate Court observed that the said Respondents had filed their
Written Statements and crossexamined the witnesses of the BPT,
without any objection as regards the non issuance of the said notices.
The Appellate Court further observed that the Respondents had argued
the matters and therefore, had fully participated in the proceedings.
The Appellate Court further observed that the Respondents, by their
conduct, have waived the notices and therefore, now cannot be heard to
say that they have been prejudiced in any manner on account of the non
issuance of the notices on them. Insofar as the said Respondent Nos. 5
to 8 and 9 to 16 are concerned, the Appellate Court further observed
that the said Respondents have no privity of contract with the BPT and
hence, it was not necessary to issue notice of termination of tenancy to
them. The Appellate Court observed that the contention of the said
Respondents that the proceeding have been vitiated for want of notices
issued to them under Section 4 and Section 7 of the said Act was
without any merit. The Appellate Court confirmed the findings of the
Estate Officer that the Respondent Nos. 5 to 16 are in unauthorised
occupation of the premises and that the Respondent Nos. 1 to 4, since
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they continued to occupy the premises after the lease period is over,
their possession is also unauthorised. The Appellate Court held that by
converting the Freezing Tunnel into a Peeling Shed, there is a breach of
the terms and conditions of the lease, that the handing over of the
premises to the MRMSS was unauthorised subletting without the
consent of the BPT. The Appellate Court took into consideration the
evidence and the findings recorded by the Estate Officer and recorded a
finding that the BPT has successfully established the case of
unauthorised use of the suit premises so also the fact of material
additions and alterations in the premises and that the Respondent No. 4
MFDC was in arrears of the occupation charges. The Appellate Court
accordingly disposed of all the Appeals by the impugned Judgment and
rd
orders both dated 3 February, 2014 and resultantly confirmed the
orders of eviction passed by the Estate Officer.
16) Insofar as the aspect of damages is concerned, the finding
of the Estate Officer that the BPT is entitled to recover damages has
been confirmed by the Appellate Court, however, as indicated above,
only insofar as the issue of calculation of damages is concerned, that
matter has been relegated back to the Estate Officer for the said
purpose. The reason for the same was that the Appellate Court found
fault with the Estate Officer in sou motu modifying the monetary relief,
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which was granted to the BPT. The Appellate Court also found fault
with the Estate Officer in not issuing notice to the Respondents and not
giving them opportunity insofar as the calculation of damages is
concerned and hence, for the said limited purpose that the matter was
relegated back to the Estate Officer for a denovo consideration.
17) Heard the learned Counsel appearing for the parties i.e.
Mr. Bhupesh V. Samant for the Petitioners in WP/3181/2014 and
WP/3182/2014, Mr. P. A. Sarwankar for the Petitioners in
WP/3168/2014 to WP/3170/2014, WP/3210/2014 and
WP/3213/2014, Mr. Viren B. Ashar for the Petitioners in
WP/3186/2014 to WP/3195/2014, Mr. U. J. Makhija for Respondent
No. 1 (B.P.T.) and Mr. R. M. Patne AGP for Respondent Nos. 3 and 4
(State). The Writ Petition Nos. 3181 of 2014, Writ Petition No. 3186 of
2014, Writ Petition No. 3168 of 2014 are treated as lead matters insofar
as the submissions of the learned Counsel are concerned, as they are
also appearing in the identical companion matters.
SUBMISSIONS OF SHRI. B. V. SAMANT:
18) (i) That the Appellate Court has not recorded a finding
as to whether the findings or conclusions arrived at by the Estate Officer
are sustainable and that the Appellate Court has not considered the
material on record.
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(ii) That the ground of subletting in the matter of
handing over possession to the MRMSS could not be invoked as the
MRMSS had handed over the premises back to MFDC in the year 1985
and the termination of tenancy was much thereafter in the year 1995.
(iii) That the Estate Officer has wrongly come to a
conclusion that there were additions and alterations, when in fact minor
alterations were made for business exigencies.
(iv) That the BPT in the guise of claiming damages are in
fact claiming rent going back beyond three years anterior to the filing of
the Eviction Petitions, which it was not entitled to do so. Reliance was
sought to be placed on the Judgment of a learned Single Judge of this
Court in the matter of The Controller of Aerodrome, Nagpur Airport,
3
Nagpur vs. Homi D. Jahangir and Anr.
(v) That the ground of arrears of rent is not sustainable
as is well settled that the said ground is not available if the tenant
deposits the rent in the Court insofar as the provisions covered by the
Rent Act are concerned and in the instant case, some payment was
made up to the year 1998.
(vi) That under the Public Premises Act, the State cannot
seek eviction on whimsical, unreasonable or untenable grounds.
3 1987(3) Bom. C. R. 565
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Reliance is sought to be placed on the Judgment of the Apex Court in
the matter of Jamshed Hormusji Wadia vs. Board of Trustees, Port of
4
Mumbai
SUBMISSIONS OF SHRI. V. B. ASHAR:
19) (i) That the proceedings are vitiated against the original
Respondent Nos. 5 to 8, as notice under Section 4 or Section 7 has not
been issued to the said Respondents. The said notice is a sine qua non
for proceeding against a party, seeking its eviction under the said Act.
In support of the said contention, reliance is sought to be placed on the
Judgment of learned Single Judge of this Court in the matter of Mine
Manager, Manganese Ore (India) Ltd. and Anr. vs. Shyam s/o. Kunjilal
5
Yadav and the Judgment of the Apex Court in the case of WireNetting
6
Stores and Anr. vs. The Delhi Development Authority and Ors .
(ii) That issuance of the notice under Section 4 of the
said Act is mandatory and that Section 4 and 5 of the said Act have to
be read harmoniously. In support of the said contention, reliance was
sought to be placed on the Judgment of the Apex Court in the matter of
7
Minoo Framroze Balsara vs. The Union of India and New India Assurance
8
Co. Ltd. vs. Nusli Neville Wadia .
4 (2004) 3 SCC 214
5 2002(3) Mh. L. J. 917
6 1969(3) SCC 415
7 AIR 1992 Bom. 375
8 (2008) 3 SCC 279
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(iii) That the Estate Officer as well as the Appellate Court
have erred in recording a finding that there is waiver on the part of the
said Respondent Nos. 5 to 8 in the matter of issuance of notices under
Section 4 and Section 7 of the said Act when no such case has been
pleaded by the BPT. In support of the said contention, reliance was
sought to be placed on the Judgment of the Apex Court in the matters
of M/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh
9 10
and Ors. , State Bank of Patiala vs. S. K. Sharma and Rajendra Singh vs.
11
State of Madhya Pradesh .
(iv) That the Estate Officer as well as the Appellate Court
failed to appreciate that the BPT, in the guise of recovering damages,
was in fact seeking to recover arrears of rent, which were barred by
limitation. In support of the said contention, reliance was placed on the
Judgment of the Apex Court in the matter of New Delhi Municipal
12
Committee vs. Kalu Ram and Anr.
SUBMISSIONS OF SHRI. P. A. SARWANKAR:
20) The learned Counsel Shri. Sarwankar adopted the
submissions of both Shri. Samant and Shri. Ashar and would
additionally contend that though the Respondents represented by him
i.e. the Petitioners in Writ Petition Nos. 3168 of 2014 to 3170 of 2014,
9 (1979) 2 SCC 409
10 (1996) 3 SCC 364
11 1996(5) SCC 460
12 1976(3) SCC 407
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3210 of 2014 and 3213 of 2014 were joined at the behest of the BPT,
nevertheless notices were issued under Section 4 and Section 7 of the
said Act to the said Respondents, but the same was not done insofar as
the Respondent Nos. 5 and 8 are concerned. The learned Counsel
would therefore contend that the said aspect would have to be
considered by this Court.
(PER CONTRA )
SUBMISSIONS OF SHRI. U. J. MAKHIJA:
21) (i) That having regard to the covenants/stipulations in
the lease deed dated 1952, the facts of the instant cases disclose that
there is breach of the said terms and conditions of the lease deed in the
matter of handing over possession to the MRMSS as well as to the
Respondent Nos. 5 to 16 as also in the matter of carrying out additions
and alterations in the structure of the godowns. The learned Counsel
sought to place reliance on the relevant clauses of the lease deed being
clause 17, 18 and Clause 7(1).
(ii) That the pleadings of the MFDC as also the
Respondents, wherein the pleadings of Sonia Fisheries is treated as the
lead pleadings, exfacie disclose the admission on the part of the MFDC
of handing over possession to the MRMSS, the additions and alterations
being carried out in the premises by way of cabins being constructed
and the Freezing Tunnel being converted into a Peeling Shed.
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(iii) That there is also admission in the pleadings that the
MFDC is in arrears of rent.
(iv) That the pleadings of the Respondent Nos. 5 to 16
disclose that they are in possession since 1977 of the cabins/galas,
which have been created in the godowns.
(v) That the Estate Officer has recorded findings of fact
on all the issues, which have been framed by the Appellate Court.
(vi) That insofar as the case of the Respondents that in
the guise of seeking to recover damages in fact arrears of rent anterior
to three years to the filing of the Petitions are sought to be recovered
can be urged before the Estate Officer, as the matter in respect of the
calculation of damages has been remanded back to the Estate Officer for
a denovo consideration.
(vii) That insofar as the violation of the principles of
natural justice are concerned, the Respondent Nos. 5 to 16 have fully
participated in the proceedings and have never made any grievance
about the non issuance of notice to them under Section 4 and Section 7
of the said Act, that having joined and participated at their own behest
and having participated in the proceedings by filing their Written
Statements, crossexamining the witnesses of the BPT, the Respondent
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Nos. 5 to 8 by their conduct can be said to have waived the notices
under Section 4 and Section 7 of the said Act.
(viii) Insofar as the case of violation of the principles of
natural justice is concerned, the test laid down by the Apex Court is as
regards the “prejudice” caused to the party. The Respondents had to
prove the prejudice caused to them on account of non issuance of the
notices. In support of the said contention, the learned Counsel placed
reliance on the Judgment of the Apex Court in the case of Aligarh
13
Muslim University and Ors. vs. Mansoor Ali Khan , the Judgment of the
Apex Court in the case of Haryana Financial Corporation and Anr. vs.
14
Kailash Chandra Ahuja
(ix) That the tenancy of the MFDC has been validly
terminated as no reasons are required to be given for termination of the
tenancy under Section 106 of the Transfer of Property Act. Reliance is
rd
placed on the order passed by a Division Bench of this Court dated 23
January, 2002 in the case of Maharashtra Small Scale Industries
15
Development Corporation Ltd. vs. Bombay Port Trust and Ors. .
(x) That the learned Counsel lastly contended that in the
facts and circumstances of the case, wherein the Estate Officer has
13 (2000) 7 SCC 529
14 (2008) 9 SCC 31
15 WP/6216/2001
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passed an elaborate order which has been confirmed by the Appellate
Court, this Court may not exercise its Writ Jurisdiction under Article
227 of the Constitution of India.
CONSIDERATION:
22) Having heard the learned Counsel appearing for the
parties, I have considered the rival contentions.
Since the proceedings are founded on the three grounds, on
which the notice for termination was given in the year 1995, followed
by the fresh notice issued in the year 1998, it would be relevant to refer
to the clauses of the lease deed, attention to which was drawn by the
learned Counsel Shri. Makhija appearing for the BPT. The said relevant
clauses are as follows:
“ …...........
(17) The said Lessee shall during this demise give
notice within one calendar month after execution thereof of
any instrument of mortgage by the Lessee of the said premises
or any part thereof whether by way of underlease or
assignment AND shall not otherwise underlet sublet or assign
the said premises or any part thereof without the consent in
writing of the Trustees first obtained to such underletting
subletting or assignment and every instrument of mortgage or
assignment as aforesaid shall within one calendar month after
the date of registration thereof by the Registrar of Assurances
be left at the office of the Trustees in order that the same may
be registered in their books AND in case the Trustees shall
deem it necessary or advisable to take legal advise as to
whether such instrument should be registered then the Lessee
shall forthwith on demand pay the Trustees all costs which
they may incur in or about obtaining such advice as aforesaid
PROVIDED ALWAYS that the registration of any instrument of
mortgage as aforesaid shall not be construed as implying the
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consent or approval of the Trustees to anything contained
therein.
(18) At the expiration or sooner determination of the
said term quietly to deliver up to the Trustees the said
godowns with the interior thereof and all fixtures and fittings
appurtenant thereto in good and tenantable repair and
condition.
….................
(7) THE FOLLOWING ARE AGREED AND DECLARED
TO BE CONDITIONS OF THE GRANT AND ENJOYMENT OF
THIS LEASE:
(1) This lease is granted upon the condition that
the Lessee shall duly observe and perform all the covenants
and agreements herein contained and on the part of the Lessee
to be observed and performed and that if and whenever there
shall be a breach of this condition so that any part of the rent
hereby reserved shall be in arrears for the space of thirty days
(whether the same shall have been legally or formally
demanded or not) or if and whenever there shall be a breach
of this condition by the Lessee so far as it relates to the
observance and performance of the covenants and agreements
by the Lessee herein contained whether as regards the said
premises or otherwise (other than the covenant for payment of
rent) or if the said premises shall become liable to be alienated
by any operation of law except with the consent of the
Trustees may ….. upon the said premises or any part ….. in
the name of the whole and immediately thereupon this Lease
and all rights of the Lessee hereunder shall absolutely
determine PROVIDED NEVERTHELESS that such reentry or
determination shall not discharge the Lessee from liability for
any arrears of rent due or accruing due at the time of such re
entry or for or on account of any previous breach of any of the
covenants herein contained. (emphasis supplied)
…...........”
23) It is in the context of the said clauses that the averments in
the pleadings of the parties, especially those of the MFDC and the
Respondent Nos. 5 to 16 especially of the Sonia Fisheries would have to
be taken into consideration. The said averments have already been
adverted to herein above. The said averments therefore exfacie
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disclose that the MFDC has in terms accepted the fact that it has handed
over possession to the MRMSS in the year 1976 albeit in view of the
order passed by the State Government directing it to do so. It is also an
admitted fact that the possession has been returned to the MFDC in the
year 1985. The MFDC has also, in its pleadings, though not directly, but
can be said to have, accepted the fact that certain alterations have been
carried out in the premises, which were leased out to it. The same is
sought to be justified on the ground that the same were required for
business exigencies. The fact that it was in arrears of rent has also been
accepted by the MFDC, as there is a statement in its Written Statement
that it is in dire financial straits and that it has taken up the matter with
the State Government and once the State Government makes the funds
available, then it would make the payment of the arrears of rent and
therefore, has sought the indulgence of the BPT.
Insofar as the said Sonia Fisheries is concerned, as indicated
above, it is pleaded that it is in occupation of some galas since the year
1977 and has also contended that the case of the BPT for eviction of the
Respondents on the ground of subletting is barred by limitation.
Implicit in the said statement is acceptance of the fact that it is in
possession of the galas in the premises in question without the
permission or authority of the BPT. The fact that the said Respondent
Nos. 5 to 16 were in occupation of the galas/cabins is therefore
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accepted. Hence, even the pleadings taken independently exfacie
disclose that the terms of the lease were breached and violated by the
MFDC.
24) As indicated above, the parties led evidence before the
Estate Officer, and the Respondent Nos. 5 to 16, as the record discloses,
were given an opportunity to put forward their case as also the
opportunity to crossexamine the witnesses of the BPT. The Estate
Officer adverted to the statements which are appearing in the evidence,
however, it is not necessary for this Court to advert to the said
statements. Suffice it to state that it is on the basis of the material on
record that the Estate Officer has recorded findings on the issues and
especially the core issues which I have adverted to in the earlier part of
this order. The said findings of the Estate Officer as regards the said
core issues were encompassed within the issue No. 1, which was framed
by the Appellate Court and the Appellate Court, as can be seen, has
recorded an affirmative finding insofar as the said issue No. 1 is
concerned. In so recording the finding, the Appellate Court has
considered the case of the BPT as also the case of the Respondents i.e.
MFDC and the Respondent Nos. 5 to 16 and has thereafter confirmed
the finding of the Estate Officer. The findings which can be said to be
findings of fact recorded by the Estate Officer are therefore confirmed
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by the Appellate Court. Though it is well settled that before the
Appellate Court the entire matter is open for consideration, but one will
have to bear in mind that the instant proceedings are the proceedings
under the Public Premises (eviction of unauthorised occupants) Act,
1971, adopted for eviction of unauthorised occupants. In the said
context therefore the order passed by the Appellate Court, confirming
the findings of the Estate Officer, cannot be said to be suffering from
any illegality or infirmity. The view taken by the Appellate Court as
regards the eviction of the Respondents cannot be said to be a view
which could not have been taken in the facts and circumstances of the
case. It therefore cannot be said that the BPT has acted unreasonably or
unfairly in the matter of seeking the eviction of the Respondents or that
with a view to profiteer that the BPT is seeking their eviction. This is
insofar as the aspect of the eviction of the MFDC and the Respondent
Nos. 5 to 16 i.e. the Petitioners herein in the above Petitions is
concerned.
25) Since the impugned orders are sought to be assailed on the
ground that the notices under Section 4 and Section 7 of the said Act
were not issued to the Respondent Nos. 5 to 8 and the notice under
Section 7 to the Respondent Nos.9 to 16, and thereby the principles of
natural justice have been violated as also the proceedings having been
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vitiated on the said ground, it would be necessary to address the said
grievance.
As indicated above, it is an undisputed position in view of
the Respondents' own statement that they have come in possession of
the premises in the year 1977. At least that is the case of the said Sonia
Fisheries, which has been pleaded by it in the initial application for
impleadment filed by it. The Estate Officer has recorded a finding that
since there is no privity of contract between the BPT and the said
Respondent Nos. 5 to 8, there was no necessity to issue them a notice of
termination of tenancy as contemplated by Section 106 of the Transfer
of Property Act the said contention was reiterated on behalf of the
Respondent Nos. 5 to 16. The Estate Officer has also recorded a finding
that the said Respondent Nos. 5 to 16 are in unauthorised occupation,
as they have no permission or authority from the BPT to come in
possession and therefore there was no necessity to issue them the notice
under Section 106 of the Transfer of Property Act.
26) Insofar as the issuance of notice under Section 4 and
Section 7 of the said Act is concerned, a reference is required to be
made to the averments of the Sonia Fisheries in its Written Statement.
In paragraph 11 of the said Written Statement, it has been averred by
the said Sonia Fisheries that a notice under Section 80 of the Civil
Procedure Code was not issued to the Respondent Nos. 1 to 4 i.e. the
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governmental authorities, and towards the end of the paragraph, it has
been mentioned that no notice has also been issued to it. The said
Sonia Fisheries has therefore not explicitly mentioned that the notices
under Section 4 and Section 7 of the said Act have not been issued to it
and if the earlier part of the said paragraph is read along with the later
part of the said paragraph, the meaning that could be attached to the
word 'notice', which is appearing in the latter part, would be that a
notice prior to the filing of the Eviction Petitions before the Estate
Officer and therefore cannot be referable to the notices to be issued
under Section 4 and Section 7 of the said Act. Be that as it may, it is an
undisputed position that it is on the individual applications of the
Respondent Nos. 5 to 8 that they were impleaded in the eviction
proceedings i.e. Petition Nos. 49 of 1999 and 50 of 1999. The said
Respondents have filed their detailed Written Statements, wherein, the
averments made in their applications for impleadment were replicated.
The said Respondents have also crossexamined the witnesses of the
BPT and have also led evidence in the eviction proceedings. The record
does not disclose that any grievance was made as regards the fact that
no notices under Section 4 and Section 7 have been issued on the said
Respondent Nos. 5 to 8 (insofar as the Respondent Nos. 9 to 16 are
concerned, notice under Section 4 was issued to them after they were
impleaded at the behest of the BPT). The Appellate Court, as indicated
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above, has recorded a finding that the said Respondent Nos. 5 to 8 have
participated in the proceedings without making any grievance that the
notices under Section 4 and Section 7 have not been issued and
therefore there is no substance in their said grievance.
27) Now, coming to the Judgments cited by the learned
Counsel appearing for the Petitioners Shri. Asher, in the matter of Mine
Manager Manganese Ore (India) Ltd. and Anr . (supra), a learned Single
Judge of this Court held that issuance of a proper notice to show cause
to the occupant is mandatory requirement of statute. The learned
Single Judge, in the said case found that the show cause notice was
fundamentally flawed and therefore set aside the eviction proceedings.
Insofar as the Judgment in M/s. WireNetting Stores and Anr.
(supra), the Apex Court held that only after the procedure under
Section 4 is followed that the eviction of the unauthorised occupants
under Section 5 can take place. In the said case, the Apex Court found
that the Estate Officer did not follow the procedure under Section 4 nor
did he give notice which would comply with its terms and that is the
possible reason why the notice has not been produced before it for
perusal. In the case of Minoo Framroze Balsara vs. Union of India
(supra), the Apex Court has held that Sections 4 and 5 of the said Act
have to be read together and harmoniously. The same has been
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reiterated by the Apex Court in the case of New India Assurance Co. Ltd.
(supra), where the Apex Court once again held that Sections 4 and 5
have to be read together.
Insofar as aspect of waiver is concerned, in the case of Motilal
Padampat Sugar Mills ( supra), the Apex Court held that waiver is a
question of fact and must be properly pleaded and it must be shown to
be a intentional act with knowledge. The Apex Court held that waiver
means abandonment of a right and it may be either express or implied
from conduct. Hence the Apex Court held that waiver can also be
gathered from the conduct of the parties.
In the case of State Bank of Patiala ( supra), the Apex Court held
that in the case of a procedural provision which is of a mandatory
character, it has to be ascertained whether the provision is conceived in
the interest of the person proceeded against or in public interest. If it is
found to be the former, then it must be seen whether the delinquent
officer has waived the said requirements either expressly or by his
conduct.
In the case of Rajendra Singh (supra), the Apex Court reiterated
that in the case of directory provision, substantial compliance would be
enough unless it has resulted in loss or prejudice to the party. Insofar as
a mandatory provision is concerned, if it is conceived in the interest of
public, cannot be waived. If it is conceived not in the interest of public,
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the question of waiver may arise, subject ofcourse to the pleadings of
the parties. In the Kalu Ram's case (supra), the same concerned the
recovery of damages, the Apex Court held that if the recovery of any
amount is barred by the law of limitation, then it is held that the Estate
Officer cannot still insist that the said amount is payable.
28) Now coming to the Judgments cited by Shri. Makhija, the
learned Counsel appearing for the BPT are concerned, in the Judgment
in Writ Petition No. 6216 of 2001, the Division Bench of this Court held
that no reasons are required to be given for termination of tenancy
under Section 106 of the Transfer of Property Act.
The next Judgment is the Judgment of the Apex Court in the case
of Aligarh Muslim University and Ors. (supra). In the said case, it was
held by the Apex Court that Rule 5(8)(i) of the Aligarh Muslim
University Revised Leave Rules applied to an employee who absents
himself from duty without having previously obtained leave or where he
has failed to return to his duties on the expiry of leave without having
previously obtained further leave. Then, Rule 5(8)(i) refers to the
manner in which the employee is to be given an opportunity. If the
appointing authority regards the explanation as not satisfactory, the
employee concerned shall be deemed to have vacated his post, without
notice, from the date of absence without leave. The Apex Court further
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held that the said Rule 5(8)(i) applies to absence for a period less than
five years. In the said case Mansoor Ali Khan obtained two years extra
ordinary leave to join a job in a foreign country. He had sought leave for
further two years but was granted extension of one year and was
warned that no further extension would be granted and that in case of
overstaying, he would be deemed to have vacated the office. The
Respondent Mansoor Ali Khan, inspite of the warning, took up a fresh
two years job in a foreign country, it is on account of omission to join
after the expiry of one year of leave, the University passed an order
deeming him to have vacated his office. The Apex Court, in the facts of
the said case, held in the said circumstances that issuance of notice to
him would not have made any difference, as on admitted facts, only one
view was possible. The Apex Court further held that the absence of
notice caused no prejudice to him and the termination was therefore
not vitiated.
In the case of Haryana Financial Corporation and Anr. (supra),
which was also relied upon by Shri. Makhija, the Apex Court reiterated
that prejudice is required to be proved to bring home the charge of
violation of principles of natural justice. The Apex Court observed that
the real test is “prejudice” and even in those cases where procedural
requirements have not been complied with, the action has not been held
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ipso facto illegal unless it is shown that nonobservance had
prejudicially affected the applicant. In the said case, the Apex Court
held that the delinquent had to prove that the non supply of the inquiry
officer's report has caused prejudice to him and the order could not be
set aside merely on the ground that the hearing was not offered before
taking of decision by the authority. Since in the said case, the High
Court has not recorded a finding that prejudice had or had not resulted
to the delinquent employee, the Apex Court therefore held that the
ends of justice would be met with if it remits the matter to the High
Court to decide the said question.
29) It is in the backdrop of the legal position that emerges from
a reading of the Judgments (supra) that the instant case would have to
be considered.
As indicated above, the fact that Respondent Nos. 5 to 16 have
fully participated in the proceedings cannot be lost sight of. The
Respondents were also aware of what they were litigating at, namely
that they were participating in the proceedings filed for eviction under
the said Act. Hence, merely because notices under Section 4 and
Section 7 of the said Act were not issued to the Respondent Nos.5 to 8,
it cannot not be said that the said Respondents have been prejudiced in
any manner. It is well settled that the principles of natural justice are
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not rigid or immutable and hence they cannot be put in a straight jacket
formula and have to yield to and change with the fact situation which
arises in a particular case. If there is no prejudice to the party, an action
cannot be set aside merely on a technicality. The Respondents in terms
of the law laid down by the Apex Court were obliged to prove the
prejudice that has been caused to them on account of the notice under
Section 4 not being issued to them. Hence, insofar as issuance of notice
under Section 4 is concerned, in my view, the Judgments (supra) cited
by Shri. Ashar have no application in the facts of the present case. In
my view, the finding recorded by the Appellate Court that in the facts
and circumstances of the present case, no prejudice is caused to the
Respondent Nos. 5 to 8 cannot be taken exception to. Hence, insofar as
the said aspect is concerned, the order passed by the Appellate Court
cannot be faulted with.
Insofar as the aspect of waiver is concerned, there was no
occasion for the BPT to plead waiver on the part of the Respondent Nos.
5 to 8 as the said Respondents themselves did not specifically plead that
on account of non issuance of notice under Section 4, any prejudice is
caused to them. As indicated above, the only mention of notice being
not issued to them is in paragraph 11 of the Written Statement of Sonia
Fisheries, which notice as indicated hereinabove is not referable to the
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notice under Section 4 of the said Act. Hence, the Estate Officer taking
into consideration the conduct of the said Respondent Nos. 5 to 8, held
that they have waived the said notice, a finding which has been
confirmed by the Appellate Court.
Taking an over all view of the matter, the orders passed by the
Estate Officer as well as the Appellate Court cannot be said to be
suffering from any illegality or infirmity for this Court to interdict in its
Writ Jurisdiction under Articles 226 and 227 of the Constitution of
India.
30) Since on the aspect of the calculation of damages, the
matter is remitted back to the Estate Officer, hence, insofar as the
contention urged on behalf of the Respondent Nos. 5 to 16 as regards
the claim for damages is concerned, it would be open for the
Respondent Nos. 5 to 16 to urge their contentions before the Estate
Officer as regards the claim of damages made by the BPT and it is for
the Estate Officer to consider the said contentions and record findings
thereon. It is before the Estate officer that the Petitioners could cite the
relevant Judgments including the Judgment in Kalu Ram's case (supra)
This Court does not express any opinion as regards the said aspect,
including the issue of limitation insofar as the recovery of damages is
concerned. In that view of the matter, no case for exercise of the Writ
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Jurisdiction of this Court under Articles 226 and 227 of the Constitution
of India is made out. The Writ Petitions are accordingly dismissed.
Rule discharged with parties to bear their respective costs.
31) At this stage, the learned Counsel appearing for the
Petitioners i.e. the original Respondent Nos. 3 to 16 pray for
continuation of the adinterim relief which is operating in the above
Petitions to enable the Respondents to approach the Apex Court, if so
advised. In the facts and circumstances of the case, the said adinterim
relief is continued for a period of 12 weeks from date.
(R. M. SAVANT, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3181 OF 2014
Maharashtra Fisheries }
Development Corporation Ltd., }
A Government of Maharashtra }
Undertaking, through their }
Divisional Manager, having office }
at N. K. M. International House, }
rd
3 floor, 178, Backbay }
Reclamation, Residing, Babubhai }
M. Chinai Marg, Mumbai 400 020 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, having its office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 038 }
}
2) Union of India }
Through Director General, }
Government of India, Bombay }
Base, Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) having }
their address at Sassoon Dock }
Estate, Colaba, Bombay 400 005 }
}
3) The State of Maharashtra }
through Under Secretary }
Agricultural and Dairy }
Development and Fisheries }
Department, Mantralaya Annexe, }
th
5 floor, Mumbai 400 032 }
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4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (W), Mumbai – 400 051 }
}
5) M/s. Krishna Sea Food }
}
6) M/s. Sonia Fisheries }
}
7) Shri. Nivrutti B. Pawale }
}
8) M/s. Lanke Sea Foods }
Suppliers }
}
9) Mahanagar Cooperative }
Bank Ltd. }
}
10) Mr. Balyogi }
}
11) M/s. D. P. Sea Food }
}
12) Darya Sagar Patpedhi }
Limited }
}
13) Shri Ramdas Waval }
}
14) United Agencies }
}
15) Shri Popat Patil }
}
16) M/s. Patil Fisheries }
Nos. 5 to 16 all at BPT Godown }
No. 1773, Situated at Sassoon }
Dock Estate, Mumbai 400 005 } Respondents
WITH
WRIT PETITION NO. 3168 OF 2014
Shri. Ramdas R. Waral, }
Adult, Indian Inhabitant, Aged }
about 59 years, Occupation: }
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Business, having address at B. P. T. }
Godown No. 1773, situated at }
Sasson Dock Estate, Mumbai }
400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3169 OF 2014
M/s. Darya Sagar Pathpedhi Ltd. }
a credit society registered under }
the Maharashtra Cooperative }
Societies Act, having its address }
C/o. M/s. Patil Fisheries B.P.T. }
Godown No. 1773, Situated at }
Sasson Dock Estate, Mumbai }
400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WITH WRIT PETITION NO. 3170 OF 2014
Shri. Popat Patil, adult Indian }
Inhabitant, aged 68 years, }
Occ. Business, having his address }
at C/o. M/s. Patil Fisheries, }
B.P.T. Godown No. 1773, situated }
at Sasson Dock Estate, }
Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3210 OF 2014
M/s. United Agencies, }
A Proprietorship of Mr. Pathrose }
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D'souza, Adult, Indian inhabitant }
age 55 years, Occ. Business, }
having address at B.P.T. Godown }
No. 1773, Situated at Sasson Dock }
Estate, Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
}
2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3213 OF 2014
M/s. Patil Fisheries, a partnership }
firm registered under the Indian }
Partnership Act, 1932, having its }
address at B.P.T. Godown No. }
1773, Situated at Sassoon Dock }
Estate, Mumbai – 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3186 OF 2014
M/s. Sonia Fisheries }
A Partnership Firm, carrying on }
business from 1773, BPT Godown, }
Sassoon Dock Estate, }
Colaba, Mumbai 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
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Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3187 OF 2014
M/s. Lanke Seafood Suppliers }
A Partnership Firm carrying on }
business from 1773, B.P.T. Godown }
Sassoon Dock Estate, Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
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2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3188 OF 2014
Nivrutti Daji Pawle }
Proprietor of M/s. N. D. Pawle }
Seafood Suppliers, Aged years }
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Occupation – Business, Carrying }
on business from 1773, B.P.T. }
Godown, Sassoon Dock Estate }
Colaba, Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
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6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO 3189 OF 2014
Krishna Nivrutti Pawle }
Proprietor of M/s. Krishna Seafood}
Suppliers, Aged years, }
Occupation – Business, carrying }
on business from 1773, B.P.T. }
Godown, Sassoon Dock Estate, }
Colaba, Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) Union of India }
Through Director General, }
Government of India, Bombay }
Base Fishery Survey of India, }
(formerly known as the }
Superintendent Engineer, }
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Deep Sea Fishing Station) Sassoon }
Dock Estate, Colaba, }
Bombay 400 005 }
}
4) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
5) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
6) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3182 OF 2014
The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Petitioner
versus
1) The Board of Trustees of the }
Port of Mumbai, a statutory }
Corporation, incorporated under }
the Major Port Trust Act, 1963, }
having its Administrative office at }
Vijay Deep, S. V. Marg, Fort, }
Mumbai – 400 038 }
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2) The State of Maharashtra }
through Under Secretary to the }
Government of Maharashtra }
Agricultural & Dairy Development }
& Fisheries Department, }
th
Mantralaya Annexe, 5 floor }
Mumbai – 400 032 }
}
3) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
4) M/s. Sisons Fisheries }
}
5) Shri. Abdul Hassan Bary }
}
6) Shri. Chandrakant S. Dhanu }
}
7) M/s. Indian Sea Food }
Corporation }
}
8) M/s. Anita Sea Food Exports }
}
9) M/s. Ram B. Salvi }
}
10) M/s. Mulica Foods }
}
11) M/s. Bombay Sea Food }
}
[Nos. 4 to 8 at B.P.T. Godown No. }
158, Situated ad Sassoon Dock }
Estate, Mumbai – 400 005] }
}
12(a) Gangadara Ponkara Shetty }
}
12(b)Vitthala Ponkara Shetty }
}
12(c) Monappa Ponkara Shetty }
[12(a) to 12(c) of: Sindhu Niwas }
Post and Village Yekkar, }
Mangalore, Karnataka] }
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12(d)Shankar Ponkara Shetty }
Building No. 5, Plot No. 21, }
Kamdhenu Complex, Hari Om }
Nagar, Mulund (E), }
Mumbai – 400 081 }
}
12(e) Mrs. Sushila Seetarama }
Shetty, House No. 189/3, }
Near Premier Company }
Christian Village, Old Kurla, }
Mumbai – 400 070 }
}
12(f) Mrs. Lalitha Narayan Shetty }
Building No. 5, Plot No. 21, }
Kamdhenu Complex, Hari Om }
Nagar, Mulund (E), }
Mumbai – 400 081 }
}
12(g) Mrs. Jayanti Karunakara }
Shetty, C207, Brindavan Society }
Y. R. Tawade Road, Near Railway }
Station, Dahisar (West), }
Mumbai – 400 068 } Respondents
WITH
WRIT PETITION NO. 3190 OF 2014
M/s. Anita Seafood Exports, }
a partnership firm duly registered }
under the provisions of the indian }
Partnership Act, 1932, carrying }
on business from 158, B.P.T. }
Godown, Sassoon Dock, Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
Corporation, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
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“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPT Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3191 OF 2014
Iqbal Ahmed Dedrani, }
Indian Inhabitant of Bombay }
Aged – 55 years, Occupation }
Business, Proprietor of M/s. }
Bombay Seafood carrying on }
business from 158, B.P.T. Godown }
Sassoon Dock Estate Colaba }
Bombay 400 005 } Petitioner
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versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3192 OF 2014
Abdul Hassan Bary, }
Indian Muslim Inhabitant }
of Bombay, aged – 53 years, }
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Occupation carrying on }
business from 158, BPT Godown, }
Sassoon Dock Estate, Colaba, }
Bombay 400 005 }
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
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WITH
WRIT PETITION NO. 3193 OF 2014
Chandrakant Dhanu, }
Indian Inhabitant of Bombay, }
Aged – 70 years, Occupation }
Business, Carrying on business in }
the name and style of M/s. Danda }
Foods from 158, BPT Godown, }
Sassoon Dock Estate Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
}
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
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a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3194 OF 2014
Ishwar Choudhary, }
Indian Inhabitant of Bombay, }
Aged – 68 years, Occupation }
Business, Proprietor of M/s. }
Sissions Fisheries carrying on }
business from 158, BPT Godown }
Sassoon Dock Estate Colaba }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
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4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
WITH
WRIT PETITION NO. 3195 OF 2014
Imtiaz Shroff, }
Indian Muslim Inhabitant of }
Bombay, Aged 51 years, }
Occupation – Business, Proprietor }
of M/s. Indian Sea Food }
Corporation, Carrying on business }
from 158, BPT Godown, Sassoon }
Dock Estate Colaba, }
Bombay 400 005 } Petitioner
versus
1) The Board of Trustees of the }
Port of Bombay, a statutory }
body, constituted under }
the Major Port Trust Act, 1963, }
having its registered office at }
“Vijay Deep”, Shoorji Vallabhdas }
Marg, Fort, Bombay 400 001 }
}
2) The Estate Officer of the }
Board of Trustees of the Port of }
Bombay, Appointed under the }
PPE Act, 1971; having office at }
Operation Service Centre, Auction }
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Sale Hall, (East Wing), Opp. G.P.O., }
P. D'mello Rd., Bombay 400 001 }
}
3) The State of Maharashtra }
through the Secretary Agricultural }
Dairy Development and Fisheries, }
Mantralaya, Bombay 400 051 }
4) Commissioner of Fisheries }
nd
Administrative Building, 2 floor }
Near Dr. Babasaheb Ambedkar }
Udyan, Government Colony, }
Bandra (E), Mumbai – 400 051 }
}
5) The Maharashtra Fisheries }
Development Corporation Ltd. }
a Government of Maharashtra }
Undertaking, N.K.M. International }
rd
House, 3 floor, 178, Backbay }
Reclamation, Babhulbai M. Chinai }
Marg, Mumbai – 400 020 } Respondents
Mr. Bhupesh V. Samant for the Petitioners
in WP/3181/2014 and WP/3182/2014.
Mr. P. A. Sarwankar i/b. M/s. Sarwankar
and Co. for the Petitioners in
WP/3168/2014 to WP/3170/2014,
WP/3210/2014 and WP/3213/2014.
Mr. Viren B. Ashar with Mr. Ashok K. Goel
for the Petitioners in WP/3186/2014 to
WP/3195/2014.
Mr. U. J. Makhija with Mr. Rakesh Singh
i/b. M/s. M. V. Kini and Co. for Respondent
No. 1 (B.P.T.).
Mr. R. M. Patne AGP for Respondent Nos. 3
and 4 (State).
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CORAM : R. M. SAVANT, J.
DATED : JULY 24, 2014
ORAL JUDGMENT :
Rule in all the Petitions, with the consent of the learned
Counsel appearing for the parties, made returnable forthwith and
heard.
2) The above Writ Petitions arise out of the orders both dated
rd
3 February, 2014, passed by the learned Judge of the City Civil Court,
Mumbai.
3) The above group of Petitions are divided in to two groups
of Petitions. One group consisting of 10 matters being Writ Petition No.
3181 of 2014 (lead matter) and others and the other group of 7 matters
being Writ Petition No. 3182 of 2014 (lead matter) and others.
The group consisting of 10 matters concerns eviction proceedings
being Case Nos. EO/E (49) (49A) (49B) (49C) in respect of premises
being Godown No. 1773 being Writ Petition No. 3181 of 2014, Writ
Petition Nos. 3168 of 2014 to 3170 of 2014, Writ Petition No. 3210 of
2014, Writ Petition No. 3213 of 2014, and Writ Petition Nos. 3186 of
2014 to Writ Petition No. 3189 of 2014.
The other group of 7 matters concerns eviction proceedings being
Case Nos. EO/E (50) (50A) (50B) (50C) in respect of premises Godown
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No. 158 being Writ Petition No. 3182 of 2014 and Writ Petition No.
3190 of 2014 to Writ Petition No. 3195 of 2014.
The Petitioners in all the above Petitions would be referred to as
per their status in the Eviction Petitions namely as original Respondent
Nos. 5 to 8 and 9 to 16.
rd
Though two separate orders dated 3 February, 2014 have been
passed by the learned Judge of the City Civil Court, Mumbai, the orders
are similar in content, as the facts are almost identical, in view of the
fact that the proceedings are under the Public Premises (eviction of
unauthorised occupants) Act, 1971 (hereinafter referred to as “the said
Act” for short). By the said orders, the learned Judge of the City Civil
Court has confirmed the orders passed by the Estate Officer both dated
th
7 December, 2009 in Case Nos. EO/E(49)(49A)(49B)(49C) of 1999
(for short “Eviction Petition No. 49 of 1999) and Case Nos. EO/E(50)
(50A)(50B)(50C) of 1999 (for short “Eviction Petition No. 50 of 1999)
filed by the Respondent No. 1 herein (for short “BPT”). However,
insofar as Eviction Petition No. 49 of 1999 is concerned, a corrigendum
th
came to be issued to the said order dated 7 December, 2009 on the
th
next day i.e. 8 December, 2009, by which, a statement of the
calculation of damages was incorporated in the main order. Insofar as
the order passed in Petition No. 50 of 1999 is concerned, there was no
such corrigendum issued.
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4) By the said orders passed by the Estate Officer, the Estate
Officer has ordered the eviction of the Respondent Nos. 5 to 8 and 9 to
16 from the premises in question. In the context of the challenge which
is raised in the above Petitions, it would be relevant to note at this stage
that insofar as the aspect of quantum of damages is concerned, the
Lower Appellate Court has remanded the matter back to the Estate
Officer for the limited issue of calculation of damages by following the
procedure which is mentioned in the operative part of the impugned
rd
order dated 3 February, 2014, which, for the sake of ready reference, is
reproduced herein under:
“ORDER
1. The Appeal Nos. 252/09 to 255/09, 258/09 to 262/09
and 265/09 are partly allowed.
2. The order passed by the Estate Officer on 7/12/2009 in
CASE NO. EO/E(49)(49A)(49B)(49C) OF 1999 is
maintained so far as the eviction, vacation and handing over
of the premises of BPT is concerned.
3. However, the matters are remanded to the Estate Officer
for deciding the limited point of calculation of damages.
4. The Ld. Estate Officer is directed to issue notice to both
the parties and to grant opportunity to both of them afresh for
hearing on the issue of calculation of damages and then to
pass appropriate order of damages according to law within a
period of Six months from the date of this order.
5. The Appeal Nos. 252/09, 258/09 to 262/09 and 265/09
are disposed off accordingly. ”
FACTUAL MATRIX:
5) The premises in question involved in the above proceedings
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are two godowns being No. 1773, which is in contention in the group of
10 Writ Petitions and godown No. 158, which is in contention in the
group of 7 Petitions. The said godowns admeasure 29,277 square feets
and 1184.42 square meters respectively. The Respondent No. 1 herein
is a Port Trust constituted under Section 3 of the Major Port Trust Act.
The Port of Bombay is the predecessor of the present BPT. The BPT, by
th
an indenture of lease dated 24 December, 1952, executed by the
Trustees of the Port of Bombay, leased out, in the Sassoon Dock Estate,
an area of 29,277 square feet (concerning godown No. 1773), to the
Union of India, which was the Respondent No. 1 in the Petitions before
the Estate Officer. The purpose mentioned in the lease was for running
an Ice Factory and Cold Storage. The covenants in the lease deed cover
the relationship between the Lessor and the Lessee. The godown No.
1773 are the premises which were covered by the lease deed and the
st th
lease period initially was from 1 December, 1948 to 30 November,
1968. It appears that before the expiry of the lease, the Union of India
transferred the Quick Freezing Plant, Cold Storage and the Ice Factory
to the State Government, which was the Respondent No. 2 before the
Estate Officer and a request was made to the BPT for assignment of the
premises to the Director of Fisheries, Government of Maharashtra.
However, the said assignment did not fructify, as the lease, by then,
expired. It appears that the Director of Fisheries, Government of
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Maharashtra applied for renewal of the lease and the BPT informed the
terms of renewal. In the interregnum, it appears that on the
establishment of the Maharashtra Fisheries Development Corporation
(for short “the MFDC:), the activities carried out by the Director of
Fisheries were transferred to the said Corporation and in view thereof,
the terms and conditions, on the basis of which the lease was to be
renewed, were accepted by the MFDC. The renewal was granted for a
period of 21 years on the same terms and conditions as the original
lease. Since the premises were transferred to the State of Maharashtra
by the Union of India, the State of Maharashtra accepted the offer made
by the BPT for renewal of the lease on the revised terms. It appears
that though the terms for renewal were accepted, the payments were
not made and therefore the BPT could not obtain the approval from its
Board of Trustees. It appears that the premises came to be handed over
by the Director of Fisheries to the MFDC in August, 1973 and the
MFDC, in turn, without prior permission of the BPT, handed over the
premises to the Maharashtra Rajya Machhimar Sahakari Sangh Ltd. (for
st
short “the MRMSS”) on 1 November, 1976. The said MRMSS
continued to be in occupation of the premises till 1985 and returned the
st
premises to the MFDC on 1 July, 1985.
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6) Insofar as the godown No. 158 is concerned, it appears that
the same was let out on a monthly tenancy basis to the MFDC. Insofar
as Godown No. 1773 is concerned, after the lease had come to an end,
the Respondents, including the MFDC, can be said to be tenants holding
over within the meaning of Transfer of Property Act. It appears that the
gamut of inspecting the premises from time to time was followed by the
BPT and this resulted in a notice of termination of tenancy being issued
nd
by the BPT through its Advocate on 22 December, 1995 addressed to
the original Respondent Nos. 1 to 4 that is the Union of India, State of
Maharashtra, Director of Fisheries and to MFDC. The notice was
founded on three fold grounds namely that the Respondent No. 4 i.e.
the MFDC has caused various unauthorised constructions, has
unlawfully sublet the premises to different parties and is in arrears of
nd
rent. The said notice dated 22 December, 1995 was replied to on
th
behalf of the MFDC vide letter dated 8 February, 1996 of its Advocate.
The MFDC, in its reply, stated that the parties have been allotted the
space in the godown No. 1773 and have been carrying out their work
since then. The MFDC accepted the fact that it was in arrears of rent
st st
from 1 July, 1985 to 31 December, 1995. However, it was contended
in the reply that after the funds are made available by the State
Government to the MFDC, the MFDC would be ready and willing to pay
nd
the arrears of rent. The said notice dated 22 December, 1995 was
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st
followed by a subsequent notice dated 21 May, 1998. It has been
mentioned in the said notice that the same has been issued without
prejudice to the earlier notice.
7) Since in the aftermarth of the said notice the situation did
not change, the BPT filed Petitions being Petition No. 49 of 1999 in
respect of godown No. 1773 and Petition No. 50 of 1999 in respect of
godown No. 158. The said Petitions were for eviction and for claiming
damages. The substratum of the said Petitions was the case of the BPT
in the said two notices of termination namely the three grounds which
were mentioned in the notices which have been adverted to in the
earlier part of this order. In the said Petitions, the factum of the
termination of the tenancy by the said notices was averred. It was
further averred that after the expiry of the notice period, the
Respondents are unauthorised occupants and the reliefs were sought in
the said Petitions on the basis of the identical grounds i.e. grounds 'A' to
'C' in Petition No. 49 of 1999, which grounds were identical to the
grounds mentioned in the notices. The said Petitions contain the
schedule of the property in respect of which eviction was sought of the
Respondents namely godown No. 1773 and godown No. 158
respectively. The Estate Officer, upon the filing of the Petitions and
finding that a prima facie case for issuance of notice under the Public
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Premises Eviction Act was made out, issued notice to the Respondents,
who were the Union of India, the State of Maharashtra, the Director of
Fisheries and the MFDC, who were arrayed as Respondent Nos. 1 to 4
to the said Petitions. The said notices were under Section 4 and Section
7 of the said Act. Insofar as the notice issued under Section 4 is
concerned, the ground on which the eviction were sought were made
the focus of the said notices asking the addressee to show cause against
the said ground and insofar as the notice under Section 7 is concerned,
the same contain the claim for damages on the basis that the
respondents had become unauthorised occupants.
8) After the Petitions were filed before the Estate Officer and
the notices being issued by the Estate Officer under Section 4 and
Section 7 of the said Act, the original Respondent Nos. 5 to 8 before the
Estate Officer i.e. the Petitioners in Writ Petition Nos. 3189 of 2014,
3186 of 2014, 3188 of 2014, 3187 of 2014 applied for their
impleadment in the said Petition No. 49 of 1999. Insofar as Eviction
Petition No. 50 of 1999 is concerned, the original Respondent Nos. 4 to
11 had filed applications, which were allowed and they accordingly
were joined as party Respondents being 4 to 11 to the said Eviction
Petition. Insofar as original Respondent Nos. 9 to 16 are concerned,
they were joined at the behest of the BPT. However, out of the said
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Respondents, only 5 have filed Writ Petitions, which are Writ Petition
Nos. 3169 of 2014, 3168 of 2014, 3210 of 2014, 3170 of 2014 and
3213 of 2014. Insofar as the said applicants are concerned, one Sonia
Fisheries can be treated as the lead applicant (Petitioner in Writ Petition
No. 3186 of 2014). The applications filed by the Respondent Nos. 5 to
8 were identical. It was averred in the said applications that they are in
occupation of the galas of the said BPT godown No. 1773 since the year
1977, that they have been put in possession by the Government of
Maharashtra and have since being carrying out their business. Insofar
as Sonia Fisheries is concerned, it has been averred by it in the
application that it has been paying rent of Rs. 14837/ per month to the
MFDC. It was further averred that any order that would be passed in
the proceedings initiated against the Respondent Nos. 1 to 4 would
prejudicially affect them and therefore the applicants should be heard
before any order is passed by the Estate Officer. The said applications
filed by the Respondent Nos. 5 to 8 were allowed by the Estate Officer
th
by order dated 10 October, 2000 and the said parties were impleaded
as party Respondent Nos. 5 to 8 to the Petition No. 49 of 1999. In view
of the fact that the Respondent Nos. 5 to 8 were impleaded, the BPT
filed applications for impleadment of the Respondent Nos. 9 to 16
before the Estate Officer. The said application of the BPT was also
allowed by the Estate Officer and accordingly the Respondent Nos. 9 to
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16 were impleaded as party Respondents to the Eviction Petition Nos.
49 of 1999 and 50 of 1999.
9) The MFDC filed its Written Statement in the said two
st
Eviction Petitions, which Written Statement is dated 21 December,
1999. It is pertinent to note that the MFDC in its Written Statement
accepted the fact that the Ice Factory, Cold Storage and Quick Freezing
th
Plant were transferred to the MRMSS by the order dated 29 July, 1976
passed by the Government of Maharashtra and that the said assets were
st
again transferred back to the MFDC by the order dated 1 July, 1985. It
has further been averred by the MFDC that minor internal adjustments
in the premises were made as per the business requirements. It is
averred that the same has been done without structurally affecting the
premises and therefore the same does not constitute an unauthorised
work or construction. Insofar as the case of the BPT about arrears of
rent is concerned, the MFDC has averred that it has remained in arrears
st
from 1 July, 1985 due to its poor financial condition. It is further
th
averred that the MFDC paid some rent in 1998 and by letter dated 26
March, 1999 expressed its readiness and willingness to pay rent in
installments. Hence, the fact that some alterations were done in the
leased premises was admitted by the MFDC as also the fact that the
Cold Storage, Ice factory and Quick Freezing Plant were handed over to
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the MRMSS as also the factum that the MFDC was in arrears was
admitted.
10) Insofar as the newly added Respondents is concerned, as
indicated above, the replies were identical. A reference could be made
to the reply of the said Sonia Fisheries (who is the Petitioner in Writ
Petition No. 3186 of 2014). The said Sonia Fisheries took a stand that
the relief sought by way of possession on account of subletting is barred
by limitation. It was further averred by the said Sonia Fisheries that the
BPT has waived the right to claim possession. Insofar as the additions
and alterations are concerned, the said allegation was sought to be
dealt with by contending that the infrastructure is provided for storage
of marine products and water products. It was lastly averred that the
notice has not been given to the Respondent Nos. 1 to 4 under Section
80 and that no notice has been given to the Respondents meaning
thereby that the proceedings have been initiated under the said Act
without notice being issued to the Respondent Nos. 1 to 4 as well as the
applicant. The said Sonia Fisheries reiterated that it is paying
Rs.14837/ per month to the MFDC.
11) In the background of the aforesaid pleadings, the Estate
Officer framed as many as 18 issues. Amongst the issues and
considering the challenge which is raised in the above Petition, the core
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issues, in my view, would be issue numbers 1, 3, 4, 7, 8 and 9, which,
for the sake of ready reference, are reproduced herein under:
“ISSUES
1. Do the Petitioners prove that the premises in Petition are
public premises?
2. …..
3. Do the Petitioners prove that the Respondent No. 4
and/or 4 unlawfully sublet or unlawfully parted with the
premises in Petition in favour of Maharashtra Rajya Machhimar
Sahakari Sangh Ltd. without prior permission of the Petitioners
as alleged in paras 7 and 16 of the Petition?
4. Do the Petitioners prove that the Respondent No. 4
unauthorisedly allowed/used freezing tunnel into peeling shed
and also allowed/constructed unauthorised cabins at the first
floor level without the permission of the Petitioners?
….........
7. Do the Petitioners prove that the tenancy/holding over of
Respondents No. 1, 2, 3 & 4 in respect of premises in Petition
st
has been duly terminated by service of notice dated 21 May,
1988?
8. Do the Respondents No. 5 to 16 who have been joined in
the above Petition prove that they have any right of any nature
whatsoever in the premises in the Petition or any part thereof?
9. Do the Respondent No. 4 prove that the provisions of
Bombay Rent Act are applicable to the premises in Petition?”
12) The parties adduced evidence in assertion of their
respective cases. The witnesses of the BPT were cross examined on
behalf of the newly added Respondents as also the MFDC, by their
learned Counsel. The Estate Officer has recorded a finding on each of
the said core issues. Insofar as the issue No. 1 is concerned, the Estate
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Officer has recorded a finding that it is proved that the premises in
question are public premises and that the MFDC has failed to prove that
the provisions of the Bombay Rent Act are applicable to the premises in
question. Insofar as the issue No. 3 is concerned, the Estate Officer, on
a consideration of the material on record, held that the BPT has proved
that the Respondent Nos. 3 and 4 have unlawfully sublet or unlawfully
parted with the premises in favour of the MRMSS Limited without prior
permission of the BPT. Insofar as the issue No. 7 is concerned, the
Estate Officer held that holding over of the tenancy by the Respondent
st
Nos. 1 to 4 has been duly terminated by the notice dated 21 May,
1998. Insofar as the issue No. 8 is concerned, the Estate Officer held
that the Respondent Nos. 5 to 16, who were later on joined in the said
Petition have failed to prove that they have any right in the premises
covered by the said Eviction Petition No. 49 of 1999 or 50 of 1999.
Insofar as the issue No. 4 is concerned, the Estate Officer held that there
was unauthorised conversion of the Freezing Tunnel into Peeling Shed
and that the MFDC has allowed the unauthorised construction of the
cabins on the first floor low level without the permission of the BPT.
Since an issue of violation of principles of natural justice was sought to
be put up before the Estate Officer on the ground that sufficient
opportunity was not given to the added Respondents, the Estate Officer
held that the principles of natural justice were followed through out the
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proceedings and both the parties were given sufficient/adequate
opportunity to present/prove their case. Since one of the added
Respondent was a Cooperative Bank i.e. the original Respondent No. 9,
the Estate Officer held that the said Respondent No. 9 is not entitled to
the concession or protection in terms of the principle laid down in the
1
case of Jamshed H. Wadia vs. Board of Trustees, Port of Mumbai and that
the Respondent No. 9 is also liable to be evicted under the provisions of
the said Act. The Estate Officer accordingly passed an order of eviction
against the Respondents in both the Eviction Petitions i.e. Petition No.
49 of 1999 and 50 of 1999 and also ordered the payment of damages
under Section 7 of the said Act, which are mentioned in the operative
part of his orders. Insofar as Petition No. 49 of 1999 is concerned, as
mentioned herein above, the corrigendum to the said order was added
th
on the next day i.e. 8 December, 2009 thereby a table of calculation of
th
damages was incorporated in the original order dated 7 December,
2009.
13) The Respondents, aggrieved by the said orders both dated
th th
7 December, 2009 and the corrigendum dated 8 December, 2009
issued in Petition No. 49 of 1999, filed Appeals under Section 9 of the
said Act in the Bombay City Civil Court. The said Appeals were
numbered as Misc. Appeal Nos. 252 of 2009, 255 of 2009, 258 of 2009,
1 . AIR 2004 SC 1815
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262 of 2009 and 265 of 2009 in Case No. 49 of 1999 and Misc. Appeal
Nos. 27 of 2010 to 31 of 2010, 35 of 2010, 36 of 2010 and 38 of 2010
in Petition No. 50 of 1999. The said Appeals were disposed of by the
th
learned Judge of the City Civil Court by Judgment and order dated 20
July, 2012 and an order of eviction as also payment of damages was
th
passed. The said Judgment and order dated 20 July, 2012 passed by
the learned Judge of the City Civil Court was challenged by the
Petitioners herein by filing Writ Petitions in this Court. A learned Single
of this Court held that the disposal of the Appeals was not in terms of
the law laid down by the Apex Court in the case of Santosh Hazari vs.
2
Purshottam Tiwari and therefore, set aside the orders passed by the
Appellate Court i.e. the learned Judge of the City Civil Court, Mumbai
and remanded the matter back to the City Civil Court for a denovo
consideration of the said Appeals. It is on remand that the instant
rd
orders both dated 3 February, 2014 dismissing the two sets of Appeals
were passed by the learned Judge of the City Civil Court, Mumbai.
14) The Appellate Court, as can be seen from the impugned
orders, had framed the following three issues, which are contained in
paragraph No. 9 of its order. The same is reproduced hereinunder for
the sake of ready reference:
2 2001 (2) Mh. L. J. 786
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“9. From the rival pleadings of the parties, the following
points arise for my consideration and determination;
1) Do the appellants prove that the order
passed by Estate Officer regarding eviction
is bad in law and perverse and not
enforceable?
IN THE
NEGATIVE
2) Whether order passed by Estate officer
regarding damages can be upheld?
IN THE
NEGATIVE
3) Whether the impugned order needs to
be set aside in appeal?
4) What Order? As per final
order
”
15) Hence, insofar as the first issue, which was framed by the
Appellate Court, is concerned, the same encompasses within itself the
three grounds on which the eviction of the Respondents was sought, as,
undisputedly, the eviction has been passed by the Estate Officer by
sustaining the three grounds on which the BPT was seeking the eviction
of the Respondents. The gist of the reasoning of the Appellate Court, as
can be seen from the impugned orders, is that the Estate Officer did not
commit any error by arriving at a finding that the claim for damages is
within limitation. Since the thrust of the challenge on behalf of the
added Respondents i.e. the parties which are put in possession by the
MFDC was on the violation of the principles of natural justice, which
violation was sought to be buttressed by contending that a proper
opportunity to crossexamine the witness was not given to the said
Respondents as also the notice under Section 4 and Section 7 was not
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served upon the Respondent Nos. 5 to 8. The Appellate Court negatived
the said contention by observing that that said Respondent Nos. 5 to 8
had filed applications for impleadment, which applications were
allowed and therefore, they were joined at their own request. The
Appellate Court observed that the said Respondents had filed their
Written Statements and crossexamined the witnesses of the BPT,
without any objection as regards the non issuance of the said notices.
The Appellate Court further observed that the Respondents had argued
the matters and therefore, had fully participated in the proceedings.
The Appellate Court further observed that the Respondents, by their
conduct, have waived the notices and therefore, now cannot be heard to
say that they have been prejudiced in any manner on account of the non
issuance of the notices on them. Insofar as the said Respondent Nos. 5
to 8 and 9 to 16 are concerned, the Appellate Court further observed
that the said Respondents have no privity of contract with the BPT and
hence, it was not necessary to issue notice of termination of tenancy to
them. The Appellate Court observed that the contention of the said
Respondents that the proceeding have been vitiated for want of notices
issued to them under Section 4 and Section 7 of the said Act was
without any merit. The Appellate Court confirmed the findings of the
Estate Officer that the Respondent Nos. 5 to 16 are in unauthorised
occupation of the premises and that the Respondent Nos. 1 to 4, since
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they continued to occupy the premises after the lease period is over,
their possession is also unauthorised. The Appellate Court held that by
converting the Freezing Tunnel into a Peeling Shed, there is a breach of
the terms and conditions of the lease, that the handing over of the
premises to the MRMSS was unauthorised subletting without the
consent of the BPT. The Appellate Court took into consideration the
evidence and the findings recorded by the Estate Officer and recorded a
finding that the BPT has successfully established the case of
unauthorised use of the suit premises so also the fact of material
additions and alterations in the premises and that the Respondent No. 4
MFDC was in arrears of the occupation charges. The Appellate Court
accordingly disposed of all the Appeals by the impugned Judgment and
rd
orders both dated 3 February, 2014 and resultantly confirmed the
orders of eviction passed by the Estate Officer.
16) Insofar as the aspect of damages is concerned, the finding
of the Estate Officer that the BPT is entitled to recover damages has
been confirmed by the Appellate Court, however, as indicated above,
only insofar as the issue of calculation of damages is concerned, that
matter has been relegated back to the Estate Officer for the said
purpose. The reason for the same was that the Appellate Court found
fault with the Estate Officer in sou motu modifying the monetary relief,
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which was granted to the BPT. The Appellate Court also found fault
with the Estate Officer in not issuing notice to the Respondents and not
giving them opportunity insofar as the calculation of damages is
concerned and hence, for the said limited purpose that the matter was
relegated back to the Estate Officer for a denovo consideration.
17) Heard the learned Counsel appearing for the parties i.e.
Mr. Bhupesh V. Samant for the Petitioners in WP/3181/2014 and
WP/3182/2014, Mr. P. A. Sarwankar for the Petitioners in
WP/3168/2014 to WP/3170/2014, WP/3210/2014 and
WP/3213/2014, Mr. Viren B. Ashar for the Petitioners in
WP/3186/2014 to WP/3195/2014, Mr. U. J. Makhija for Respondent
No. 1 (B.P.T.) and Mr. R. M. Patne AGP for Respondent Nos. 3 and 4
(State). The Writ Petition Nos. 3181 of 2014, Writ Petition No. 3186 of
2014, Writ Petition No. 3168 of 2014 are treated as lead matters insofar
as the submissions of the learned Counsel are concerned, as they are
also appearing in the identical companion matters.
SUBMISSIONS OF SHRI. B. V. SAMANT:
18) (i) That the Appellate Court has not recorded a finding
as to whether the findings or conclusions arrived at by the Estate Officer
are sustainable and that the Appellate Court has not considered the
material on record.
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(ii) That the ground of subletting in the matter of
handing over possession to the MRMSS could not be invoked as the
MRMSS had handed over the premises back to MFDC in the year 1985
and the termination of tenancy was much thereafter in the year 1995.
(iii) That the Estate Officer has wrongly come to a
conclusion that there were additions and alterations, when in fact minor
alterations were made for business exigencies.
(iv) That the BPT in the guise of claiming damages are in
fact claiming rent going back beyond three years anterior to the filing of
the Eviction Petitions, which it was not entitled to do so. Reliance was
sought to be placed on the Judgment of a learned Single Judge of this
Court in the matter of The Controller of Aerodrome, Nagpur Airport,
3
Nagpur vs. Homi D. Jahangir and Anr.
(v) That the ground of arrears of rent is not sustainable
as is well settled that the said ground is not available if the tenant
deposits the rent in the Court insofar as the provisions covered by the
Rent Act are concerned and in the instant case, some payment was
made up to the year 1998.
(vi) That under the Public Premises Act, the State cannot
seek eviction on whimsical, unreasonable or untenable grounds.
3 1987(3) Bom. C. R. 565
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Reliance is sought to be placed on the Judgment of the Apex Court in
the matter of Jamshed Hormusji Wadia vs. Board of Trustees, Port of
4
Mumbai
SUBMISSIONS OF SHRI. V. B. ASHAR:
19) (i) That the proceedings are vitiated against the original
Respondent Nos. 5 to 8, as notice under Section 4 or Section 7 has not
been issued to the said Respondents. The said notice is a sine qua non
for proceeding against a party, seeking its eviction under the said Act.
In support of the said contention, reliance is sought to be placed on the
Judgment of learned Single Judge of this Court in the matter of Mine
Manager, Manganese Ore (India) Ltd. and Anr. vs. Shyam s/o. Kunjilal
5
Yadav and the Judgment of the Apex Court in the case of WireNetting
6
Stores and Anr. vs. The Delhi Development Authority and Ors .
(ii) That issuance of the notice under Section 4 of the
said Act is mandatory and that Section 4 and 5 of the said Act have to
be read harmoniously. In support of the said contention, reliance was
sought to be placed on the Judgment of the Apex Court in the matter of
7
Minoo Framroze Balsara vs. The Union of India and New India Assurance
8
Co. Ltd. vs. Nusli Neville Wadia .
4 (2004) 3 SCC 214
5 2002(3) Mh. L. J. 917
6 1969(3) SCC 415
7 AIR 1992 Bom. 375
8 (2008) 3 SCC 279
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(iii) That the Estate Officer as well as the Appellate Court
have erred in recording a finding that there is waiver on the part of the
said Respondent Nos. 5 to 8 in the matter of issuance of notices under
Section 4 and Section 7 of the said Act when no such case has been
pleaded by the BPT. In support of the said contention, reliance was
sought to be placed on the Judgment of the Apex Court in the matters
of M/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh
9 10
and Ors. , State Bank of Patiala vs. S. K. Sharma and Rajendra Singh vs.
11
State of Madhya Pradesh .
(iv) That the Estate Officer as well as the Appellate Court
failed to appreciate that the BPT, in the guise of recovering damages,
was in fact seeking to recover arrears of rent, which were barred by
limitation. In support of the said contention, reliance was placed on the
Judgment of the Apex Court in the matter of New Delhi Municipal
12
Committee vs. Kalu Ram and Anr.
SUBMISSIONS OF SHRI. P. A. SARWANKAR:
20) The learned Counsel Shri. Sarwankar adopted the
submissions of both Shri. Samant and Shri. Ashar and would
additionally contend that though the Respondents represented by him
i.e. the Petitioners in Writ Petition Nos. 3168 of 2014 to 3170 of 2014,
9 (1979) 2 SCC 409
10 (1996) 3 SCC 364
11 1996(5) SCC 460
12 1976(3) SCC 407
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3210 of 2014 and 3213 of 2014 were joined at the behest of the BPT,
nevertheless notices were issued under Section 4 and Section 7 of the
said Act to the said Respondents, but the same was not done insofar as
the Respondent Nos. 5 and 8 are concerned. The learned Counsel
would therefore contend that the said aspect would have to be
considered by this Court.
(PER CONTRA )
SUBMISSIONS OF SHRI. U. J. MAKHIJA:
21) (i) That having regard to the covenants/stipulations in
the lease deed dated 1952, the facts of the instant cases disclose that
there is breach of the said terms and conditions of the lease deed in the
matter of handing over possession to the MRMSS as well as to the
Respondent Nos. 5 to 16 as also in the matter of carrying out additions
and alterations in the structure of the godowns. The learned Counsel
sought to place reliance on the relevant clauses of the lease deed being
clause 17, 18 and Clause 7(1).
(ii) That the pleadings of the MFDC as also the
Respondents, wherein the pleadings of Sonia Fisheries is treated as the
lead pleadings, exfacie disclose the admission on the part of the MFDC
of handing over possession to the MRMSS, the additions and alterations
being carried out in the premises by way of cabins being constructed
and the Freezing Tunnel being converted into a Peeling Shed.
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(iii) That there is also admission in the pleadings that the
MFDC is in arrears of rent.
(iv) That the pleadings of the Respondent Nos. 5 to 16
disclose that they are in possession since 1977 of the cabins/galas,
which have been created in the godowns.
(v) That the Estate Officer has recorded findings of fact
on all the issues, which have been framed by the Appellate Court.
(vi) That insofar as the case of the Respondents that in
the guise of seeking to recover damages in fact arrears of rent anterior
to three years to the filing of the Petitions are sought to be recovered
can be urged before the Estate Officer, as the matter in respect of the
calculation of damages has been remanded back to the Estate Officer for
a denovo consideration.
(vii) That insofar as the violation of the principles of
natural justice are concerned, the Respondent Nos. 5 to 16 have fully
participated in the proceedings and have never made any grievance
about the non issuance of notice to them under Section 4 and Section 7
of the said Act, that having joined and participated at their own behest
and having participated in the proceedings by filing their Written
Statements, crossexamining the witnesses of the BPT, the Respondent
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Nos. 5 to 8 by their conduct can be said to have waived the notices
under Section 4 and Section 7 of the said Act.
(viii) Insofar as the case of violation of the principles of
natural justice is concerned, the test laid down by the Apex Court is as
regards the “prejudice” caused to the party. The Respondents had to
prove the prejudice caused to them on account of non issuance of the
notices. In support of the said contention, the learned Counsel placed
reliance on the Judgment of the Apex Court in the case of Aligarh
13
Muslim University and Ors. vs. Mansoor Ali Khan , the Judgment of the
Apex Court in the case of Haryana Financial Corporation and Anr. vs.
14
Kailash Chandra Ahuja
(ix) That the tenancy of the MFDC has been validly
terminated as no reasons are required to be given for termination of the
tenancy under Section 106 of the Transfer of Property Act. Reliance is
rd
placed on the order passed by a Division Bench of this Court dated 23
January, 2002 in the case of Maharashtra Small Scale Industries
15
Development Corporation Ltd. vs. Bombay Port Trust and Ors. .
(x) That the learned Counsel lastly contended that in the
facts and circumstances of the case, wherein the Estate Officer has
13 (2000) 7 SCC 529
14 (2008) 9 SCC 31
15 WP/6216/2001
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passed an elaborate order which has been confirmed by the Appellate
Court, this Court may not exercise its Writ Jurisdiction under Article
227 of the Constitution of India.
CONSIDERATION:
22) Having heard the learned Counsel appearing for the
parties, I have considered the rival contentions.
Since the proceedings are founded on the three grounds, on
which the notice for termination was given in the year 1995, followed
by the fresh notice issued in the year 1998, it would be relevant to refer
to the clauses of the lease deed, attention to which was drawn by the
learned Counsel Shri. Makhija appearing for the BPT. The said relevant
clauses are as follows:
“ …...........
(17) The said Lessee shall during this demise give
notice within one calendar month after execution thereof of
any instrument of mortgage by the Lessee of the said premises
or any part thereof whether by way of underlease or
assignment AND shall not otherwise underlet sublet or assign
the said premises or any part thereof without the consent in
writing of the Trustees first obtained to such underletting
subletting or assignment and every instrument of mortgage or
assignment as aforesaid shall within one calendar month after
the date of registration thereof by the Registrar of Assurances
be left at the office of the Trustees in order that the same may
be registered in their books AND in case the Trustees shall
deem it necessary or advisable to take legal advise as to
whether such instrument should be registered then the Lessee
shall forthwith on demand pay the Trustees all costs which
they may incur in or about obtaining such advice as aforesaid
PROVIDED ALWAYS that the registration of any instrument of
mortgage as aforesaid shall not be construed as implying the
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consent or approval of the Trustees to anything contained
therein.
(18) At the expiration or sooner determination of the
said term quietly to deliver up to the Trustees the said
godowns with the interior thereof and all fixtures and fittings
appurtenant thereto in good and tenantable repair and
condition.
….................
(7) THE FOLLOWING ARE AGREED AND DECLARED
TO BE CONDITIONS OF THE GRANT AND ENJOYMENT OF
THIS LEASE:
(1) This lease is granted upon the condition that
the Lessee shall duly observe and perform all the covenants
and agreements herein contained and on the part of the Lessee
to be observed and performed and that if and whenever there
shall be a breach of this condition so that any part of the rent
hereby reserved shall be in arrears for the space of thirty days
(whether the same shall have been legally or formally
demanded or not) or if and whenever there shall be a breach
of this condition by the Lessee so far as it relates to the
observance and performance of the covenants and agreements
by the Lessee herein contained whether as regards the said
premises or otherwise (other than the covenant for payment of
rent) or if the said premises shall become liable to be alienated
by any operation of law except with the consent of the
Trustees may ….. upon the said premises or any part ….. in
the name of the whole and immediately thereupon this Lease
and all rights of the Lessee hereunder shall absolutely
determine PROVIDED NEVERTHELESS that such reentry or
determination shall not discharge the Lessee from liability for
any arrears of rent due or accruing due at the time of such re
entry or for or on account of any previous breach of any of the
covenants herein contained. (emphasis supplied)
…...........”
23) It is in the context of the said clauses that the averments in
the pleadings of the parties, especially those of the MFDC and the
Respondent Nos. 5 to 16 especially of the Sonia Fisheries would have to
be taken into consideration. The said averments have already been
adverted to herein above. The said averments therefore exfacie
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disclose that the MFDC has in terms accepted the fact that it has handed
over possession to the MRMSS in the year 1976 albeit in view of the
order passed by the State Government directing it to do so. It is also an
admitted fact that the possession has been returned to the MFDC in the
year 1985. The MFDC has also, in its pleadings, though not directly, but
can be said to have, accepted the fact that certain alterations have been
carried out in the premises, which were leased out to it. The same is
sought to be justified on the ground that the same were required for
business exigencies. The fact that it was in arrears of rent has also been
accepted by the MFDC, as there is a statement in its Written Statement
that it is in dire financial straits and that it has taken up the matter with
the State Government and once the State Government makes the funds
available, then it would make the payment of the arrears of rent and
therefore, has sought the indulgence of the BPT.
Insofar as the said Sonia Fisheries is concerned, as indicated
above, it is pleaded that it is in occupation of some galas since the year
1977 and has also contended that the case of the BPT for eviction of the
Respondents on the ground of subletting is barred by limitation.
Implicit in the said statement is acceptance of the fact that it is in
possession of the galas in the premises in question without the
permission or authority of the BPT. The fact that the said Respondent
Nos. 5 to 16 were in occupation of the galas/cabins is therefore
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accepted. Hence, even the pleadings taken independently exfacie
disclose that the terms of the lease were breached and violated by the
MFDC.
24) As indicated above, the parties led evidence before the
Estate Officer, and the Respondent Nos. 5 to 16, as the record discloses,
were given an opportunity to put forward their case as also the
opportunity to crossexamine the witnesses of the BPT. The Estate
Officer adverted to the statements which are appearing in the evidence,
however, it is not necessary for this Court to advert to the said
statements. Suffice it to state that it is on the basis of the material on
record that the Estate Officer has recorded findings on the issues and
especially the core issues which I have adverted to in the earlier part of
this order. The said findings of the Estate Officer as regards the said
core issues were encompassed within the issue No. 1, which was framed
by the Appellate Court and the Appellate Court, as can be seen, has
recorded an affirmative finding insofar as the said issue No. 1 is
concerned. In so recording the finding, the Appellate Court has
considered the case of the BPT as also the case of the Respondents i.e.
MFDC and the Respondent Nos. 5 to 16 and has thereafter confirmed
the finding of the Estate Officer. The findings which can be said to be
findings of fact recorded by the Estate Officer are therefore confirmed
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by the Appellate Court. Though it is well settled that before the
Appellate Court the entire matter is open for consideration, but one will
have to bear in mind that the instant proceedings are the proceedings
under the Public Premises (eviction of unauthorised occupants) Act,
1971, adopted for eviction of unauthorised occupants. In the said
context therefore the order passed by the Appellate Court, confirming
the findings of the Estate Officer, cannot be said to be suffering from
any illegality or infirmity. The view taken by the Appellate Court as
regards the eviction of the Respondents cannot be said to be a view
which could not have been taken in the facts and circumstances of the
case. It therefore cannot be said that the BPT has acted unreasonably or
unfairly in the matter of seeking the eviction of the Respondents or that
with a view to profiteer that the BPT is seeking their eviction. This is
insofar as the aspect of the eviction of the MFDC and the Respondent
Nos. 5 to 16 i.e. the Petitioners herein in the above Petitions is
concerned.
25) Since the impugned orders are sought to be assailed on the
ground that the notices under Section 4 and Section 7 of the said Act
were not issued to the Respondent Nos. 5 to 8 and the notice under
Section 7 to the Respondent Nos.9 to 16, and thereby the principles of
natural justice have been violated as also the proceedings having been
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vitiated on the said ground, it would be necessary to address the said
grievance.
As indicated above, it is an undisputed position in view of
the Respondents' own statement that they have come in possession of
the premises in the year 1977. At least that is the case of the said Sonia
Fisheries, which has been pleaded by it in the initial application for
impleadment filed by it. The Estate Officer has recorded a finding that
since there is no privity of contract between the BPT and the said
Respondent Nos. 5 to 8, there was no necessity to issue them a notice of
termination of tenancy as contemplated by Section 106 of the Transfer
of Property Act the said contention was reiterated on behalf of the
Respondent Nos. 5 to 16. The Estate Officer has also recorded a finding
that the said Respondent Nos. 5 to 16 are in unauthorised occupation,
as they have no permission or authority from the BPT to come in
possession and therefore there was no necessity to issue them the notice
under Section 106 of the Transfer of Property Act.
26) Insofar as the issuance of notice under Section 4 and
Section 7 of the said Act is concerned, a reference is required to be
made to the averments of the Sonia Fisheries in its Written Statement.
In paragraph 11 of the said Written Statement, it has been averred by
the said Sonia Fisheries that a notice under Section 80 of the Civil
Procedure Code was not issued to the Respondent Nos. 1 to 4 i.e. the
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governmental authorities, and towards the end of the paragraph, it has
been mentioned that no notice has also been issued to it. The said
Sonia Fisheries has therefore not explicitly mentioned that the notices
under Section 4 and Section 7 of the said Act have not been issued to it
and if the earlier part of the said paragraph is read along with the later
part of the said paragraph, the meaning that could be attached to the
word 'notice', which is appearing in the latter part, would be that a
notice prior to the filing of the Eviction Petitions before the Estate
Officer and therefore cannot be referable to the notices to be issued
under Section 4 and Section 7 of the said Act. Be that as it may, it is an
undisputed position that it is on the individual applications of the
Respondent Nos. 5 to 8 that they were impleaded in the eviction
proceedings i.e. Petition Nos. 49 of 1999 and 50 of 1999. The said
Respondents have filed their detailed Written Statements, wherein, the
averments made in their applications for impleadment were replicated.
The said Respondents have also crossexamined the witnesses of the
BPT and have also led evidence in the eviction proceedings. The record
does not disclose that any grievance was made as regards the fact that
no notices under Section 4 and Section 7 have been issued on the said
Respondent Nos. 5 to 8 (insofar as the Respondent Nos. 9 to 16 are
concerned, notice under Section 4 was issued to them after they were
impleaded at the behest of the BPT). The Appellate Court, as indicated
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above, has recorded a finding that the said Respondent Nos. 5 to 8 have
participated in the proceedings without making any grievance that the
notices under Section 4 and Section 7 have not been issued and
therefore there is no substance in their said grievance.
27) Now, coming to the Judgments cited by the learned
Counsel appearing for the Petitioners Shri. Asher, in the matter of Mine
Manager Manganese Ore (India) Ltd. and Anr . (supra), a learned Single
Judge of this Court held that issuance of a proper notice to show cause
to the occupant is mandatory requirement of statute. The learned
Single Judge, in the said case found that the show cause notice was
fundamentally flawed and therefore set aside the eviction proceedings.
Insofar as the Judgment in M/s. WireNetting Stores and Anr.
(supra), the Apex Court held that only after the procedure under
Section 4 is followed that the eviction of the unauthorised occupants
under Section 5 can take place. In the said case, the Apex Court found
that the Estate Officer did not follow the procedure under Section 4 nor
did he give notice which would comply with its terms and that is the
possible reason why the notice has not been produced before it for
perusal. In the case of Minoo Framroze Balsara vs. Union of India
(supra), the Apex Court has held that Sections 4 and 5 of the said Act
have to be read together and harmoniously. The same has been
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reiterated by the Apex Court in the case of New India Assurance Co. Ltd.
(supra), where the Apex Court once again held that Sections 4 and 5
have to be read together.
Insofar as aspect of waiver is concerned, in the case of Motilal
Padampat Sugar Mills ( supra), the Apex Court held that waiver is a
question of fact and must be properly pleaded and it must be shown to
be a intentional act with knowledge. The Apex Court held that waiver
means abandonment of a right and it may be either express or implied
from conduct. Hence the Apex Court held that waiver can also be
gathered from the conduct of the parties.
In the case of State Bank of Patiala ( supra), the Apex Court held
that in the case of a procedural provision which is of a mandatory
character, it has to be ascertained whether the provision is conceived in
the interest of the person proceeded against or in public interest. If it is
found to be the former, then it must be seen whether the delinquent
officer has waived the said requirements either expressly or by his
conduct.
In the case of Rajendra Singh (supra), the Apex Court reiterated
that in the case of directory provision, substantial compliance would be
enough unless it has resulted in loss or prejudice to the party. Insofar as
a mandatory provision is concerned, if it is conceived in the interest of
public, cannot be waived. If it is conceived not in the interest of public,
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the question of waiver may arise, subject ofcourse to the pleadings of
the parties. In the Kalu Ram's case (supra), the same concerned the
recovery of damages, the Apex Court held that if the recovery of any
amount is barred by the law of limitation, then it is held that the Estate
Officer cannot still insist that the said amount is payable.
28) Now coming to the Judgments cited by Shri. Makhija, the
learned Counsel appearing for the BPT are concerned, in the Judgment
in Writ Petition No. 6216 of 2001, the Division Bench of this Court held
that no reasons are required to be given for termination of tenancy
under Section 106 of the Transfer of Property Act.
The next Judgment is the Judgment of the Apex Court in the case
of Aligarh Muslim University and Ors. (supra). In the said case, it was
held by the Apex Court that Rule 5(8)(i) of the Aligarh Muslim
University Revised Leave Rules applied to an employee who absents
himself from duty without having previously obtained leave or where he
has failed to return to his duties on the expiry of leave without having
previously obtained further leave. Then, Rule 5(8)(i) refers to the
manner in which the employee is to be given an opportunity. If the
appointing authority regards the explanation as not satisfactory, the
employee concerned shall be deemed to have vacated his post, without
notice, from the date of absence without leave. The Apex Court further
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held that the said Rule 5(8)(i) applies to absence for a period less than
five years. In the said case Mansoor Ali Khan obtained two years extra
ordinary leave to join a job in a foreign country. He had sought leave for
further two years but was granted extension of one year and was
warned that no further extension would be granted and that in case of
overstaying, he would be deemed to have vacated the office. The
Respondent Mansoor Ali Khan, inspite of the warning, took up a fresh
two years job in a foreign country, it is on account of omission to join
after the expiry of one year of leave, the University passed an order
deeming him to have vacated his office. The Apex Court, in the facts of
the said case, held in the said circumstances that issuance of notice to
him would not have made any difference, as on admitted facts, only one
view was possible. The Apex Court further held that the absence of
notice caused no prejudice to him and the termination was therefore
not vitiated.
In the case of Haryana Financial Corporation and Anr. (supra),
which was also relied upon by Shri. Makhija, the Apex Court reiterated
that prejudice is required to be proved to bring home the charge of
violation of principles of natural justice. The Apex Court observed that
the real test is “prejudice” and even in those cases where procedural
requirements have not been complied with, the action has not been held
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ipso facto illegal unless it is shown that nonobservance had
prejudicially affected the applicant. In the said case, the Apex Court
held that the delinquent had to prove that the non supply of the inquiry
officer's report has caused prejudice to him and the order could not be
set aside merely on the ground that the hearing was not offered before
taking of decision by the authority. Since in the said case, the High
Court has not recorded a finding that prejudice had or had not resulted
to the delinquent employee, the Apex Court therefore held that the
ends of justice would be met with if it remits the matter to the High
Court to decide the said question.
29) It is in the backdrop of the legal position that emerges from
a reading of the Judgments (supra) that the instant case would have to
be considered.
As indicated above, the fact that Respondent Nos. 5 to 16 have
fully participated in the proceedings cannot be lost sight of. The
Respondents were also aware of what they were litigating at, namely
that they were participating in the proceedings filed for eviction under
the said Act. Hence, merely because notices under Section 4 and
Section 7 of the said Act were not issued to the Respondent Nos.5 to 8,
it cannot not be said that the said Respondents have been prejudiced in
any manner. It is well settled that the principles of natural justice are
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not rigid or immutable and hence they cannot be put in a straight jacket
formula and have to yield to and change with the fact situation which
arises in a particular case. If there is no prejudice to the party, an action
cannot be set aside merely on a technicality. The Respondents in terms
of the law laid down by the Apex Court were obliged to prove the
prejudice that has been caused to them on account of the notice under
Section 4 not being issued to them. Hence, insofar as issuance of notice
under Section 4 is concerned, in my view, the Judgments (supra) cited
by Shri. Ashar have no application in the facts of the present case. In
my view, the finding recorded by the Appellate Court that in the facts
and circumstances of the present case, no prejudice is caused to the
Respondent Nos. 5 to 8 cannot be taken exception to. Hence, insofar as
the said aspect is concerned, the order passed by the Appellate Court
cannot be faulted with.
Insofar as the aspect of waiver is concerned, there was no
occasion for the BPT to plead waiver on the part of the Respondent Nos.
5 to 8 as the said Respondents themselves did not specifically plead that
on account of non issuance of notice under Section 4, any prejudice is
caused to them. As indicated above, the only mention of notice being
not issued to them is in paragraph 11 of the Written Statement of Sonia
Fisheries, which notice as indicated hereinabove is not referable to the
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notice under Section 4 of the said Act. Hence, the Estate Officer taking
into consideration the conduct of the said Respondent Nos. 5 to 8, held
that they have waived the said notice, a finding which has been
confirmed by the Appellate Court.
Taking an over all view of the matter, the orders passed by the
Estate Officer as well as the Appellate Court cannot be said to be
suffering from any illegality or infirmity for this Court to interdict in its
Writ Jurisdiction under Articles 226 and 227 of the Constitution of
India.
30) Since on the aspect of the calculation of damages, the
matter is remitted back to the Estate Officer, hence, insofar as the
contention urged on behalf of the Respondent Nos. 5 to 16 as regards
the claim for damages is concerned, it would be open for the
Respondent Nos. 5 to 16 to urge their contentions before the Estate
Officer as regards the claim of damages made by the BPT and it is for
the Estate Officer to consider the said contentions and record findings
thereon. It is before the Estate officer that the Petitioners could cite the
relevant Judgments including the Judgment in Kalu Ram's case (supra)
This Court does not express any opinion as regards the said aspect,
including the issue of limitation insofar as the recovery of damages is
concerned. In that view of the matter, no case for exercise of the Writ
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Jurisdiction of this Court under Articles 226 and 227 of the Constitution
of India is made out. The Writ Petitions are accordingly dismissed.
Rule discharged with parties to bear their respective costs.
31) At this stage, the learned Counsel appearing for the
Petitioners i.e. the original Respondent Nos. 3 to 16 pray for
continuation of the adinterim relief which is operating in the above
Petitions to enable the Respondents to approach the Apex Court, if so
advised. In the facts and circumstances of the case, the said adinterim
relief is continued for a period of 12 weeks from date.
(R. M. SAVANT, J.)
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