{"id":250321,"date":"2011-04-08T00:00:00","date_gmt":"2011-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/board-of-trustees-of-the-port-of-vs-ms-byramjee-jeejeebhoy-p-ltd-on-8-april-2011"},"modified":"2017-09-25T21:35:33","modified_gmt":"2017-09-25T16:05:33","slug":"board-of-trustees-of-the-port-of-vs-ms-byramjee-jeejeebhoy-p-ltd-on-8-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/board-of-trustees-of-the-port-of-vs-ms-byramjee-jeejeebhoy-p-ltd-on-8-april-2011","title":{"rendered":"Board Of Trustees Of The Port Of … vs M\/S Byramjee Jeejeebhoy P.Ltd.& … on 8 April, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Board Of Trustees Of The Port Of … vs M\/S Byramjee Jeejeebhoy P.Ltd.& … on 8 April, 2011<\/div>\n
Author: A Alam<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                              REPORTABLE\n\n                 IN THE SUPREME COURT OF INDIA\n\n                  CIVIL APPELLATE JURISDICTION\n\n\n\n\n                CIVIL APPEAL NO.    3147          OF 2011\n\n                (Arising out of S.L.P.( C) No.19522 of 2008)\n\n\n\nBoard of Trustees of the Port of Mumbai                         .....Appellant\n\n\n                                     Versus\n\n\nM\/s Byramjee Jeejeebhoy Pvt.Ltd. & Anr.                             ...Respondents\n\n\n\n\n\n                                     WITH\n\n\n\n\n\n                CIVIL APPEAL NO.   3148            OF 2011\n\n                (Arising out of S.L.P.( C) No.36246 of 2010)\n\n\n\n\nM\/s Wadi Bunder Cotton Press Company                                ....Appellant\n\n\n                                     Versus\n\n\nM\/s Byramjee Jeejeebhoy Pvt.Ltd. & Anr.                             ...Respondents \n\n\n\n\n\n                             J U D G M E N T\n<\/pre>\n
AFTAB ALAM,J.\n<\/p>\n
\n
1.     Leave granted.\n<\/p>\n
\n                                             2<\/span><\/p>\n
2.     These   two   appeals,   though   coming   from   separate   judgments   and <\/p>\n
orders   passed   by   the   Bombay   High   Court,   arise   from   the   same   suit   for <\/p>\n
eviction   instituted   by   the   landlord   which   figures   in   both   the   appeals   as <\/p>\n
respondent no.1. The appellant in the appeal arising from SLP (C) No.19522 <\/p>\n
of   2008   is   the   Board   of   Trustees   of   the   Port   of   Mumbai   (hereinafter <\/p>\n
“Mumbai Port Trust”). It was the sole defendant, described as the tenant, in <\/p>\n
the suit  for eviction  as  it was originally  filed. Later  on, by  an amendment <\/p>\n
M\/s   Wadi   Bunder   Cotton   Press   Company   (hereinafter   “WBC   Company”), <\/p>\n
the   appellant   in   the   appeal   arising   from   SLP   (C)   No.36246   of   2010,   was <\/p>\n
joined in as defendant no.2 as the sub-tenant under the defendant, the Board <\/p>\n
of Trustees of the Port of Mumbai. From that stage, Mumbai Port Trust, the <\/p>\n
principal tenant and WBC Company, the sub-tenant came to be arrayed in <\/p>\n
the suit as defendants 1 & 2 respectively.\n<\/p>\n
\n
3.     The plaintiff respondent no.1 filed a suit in the court of Small Causes <\/p>\n
at Bombay registered as RAE suit no.83\/197 of 1993, seeking  inter alia  a <\/p>\n
decree   of   eviction,   against   the   defendants   from   the   suit   land   admeasuring <\/p>\n
about   3273.394   square   yards,   situated   at   Santacruz   Estate,   Mazgaon, <\/p>\n
Bombay. According to the plaintiff-respondent no.1, the suit land was given <\/p>\n
to defendant no.1 on lease for 999 (nine hundred and ninety nine) years by <\/p>\n
the   plaintiff’s   predecessors-in-interest   under   a   registered   lease   deed   dated <\/p>\n
                                                                     3<\/span><\/p>\n
May 10, 18861. In terms of the lease deed, defendant no.1, the lessee had the <\/p>\n
right to renewal but it had no right to assign the leased out land to any third <\/p>\n
party.   As   a   matter   of   fact,   there   was   an   express   prohibition   against <\/p>\n
assignment in clause 4 of the lease deed which is as under:<\/p>\n
                       “4. That they the said Trustees their successors or <\/p>\n
                       assigns   will   not   (subject   never   the   less   as <\/p>\n
                       hereinafter mentioned) assign the said premises or <\/p>\n
                       any   part   thereof   without   the   licence   in  writing   of <\/p>\n
                       the   lessors   their   heirs   executors   administrators <\/p>\n
                       assigns first obtained.”<\/p><\/blockquote>\n
\n
           [The only exception to the above prohibition was the right given to the <\/p>\n
lessee to part with and dedicate some portions, up to a specified limit, from <\/p>\n
the aggregate  of the lands covered by the lease for public roads and ways <\/p>\n
with the consent  of the lessors. But in that case  the lessors agreed to give <\/p>\n
such   consent   upon   the   reasonable   applications   of   the   lessee   from   time   to <\/p>\n
time and within the limit (prescribed under the lease).] <\/p>\n
4.         The plaintiffs sought eviction of the defendants on grounds of breach <\/p>\n
of   the   terms   and   conditions   of   the   lease   dated   May   10,   1886,   mainly   the <\/p>\n
condition   against   assignment   of   any   portion   of   the   lease   hold   land   to   any <\/p>\n
1  As   a   result   of   acquisition   of   a   part   of   the   leasehold   lands   and   for   other   reasons,   the   1886   lease   was <\/p>\n
followed by subsequent leases in which the area of the lease hold lands was considerably reduced. But the <\/p>\n
stipulation against assignment on which the case of the plaintiff-respondent is based remained unaltered. In <\/p>\n
the   pleadings   of   the   parties   and   the   judgments   of   the   courts   the   reference   is   made   to   the   above   quoted <\/p>\n
clause in the 1886 deed. It is, therefore, unnecessary to go into the details of the subsequent leases. <\/p>\n
                                               4<\/span><\/p>\n
third party. In paragraph 4 of the plaint as it was originally filed it was stated <\/p>\n
that the defendant had committed breach of several terms and conditions of <\/p>\n
the lease and had unlawfully and illegally parted with the possession of the <\/p>\n
lease   hold   property   without   any   licence   in   writing   from  the   lessor.   It   was <\/p>\n
further   stated   that   by   an   advocate’s   notice   dated   December   7,   1991   the <\/p>\n
plaintiff had put on record the several acts of omission and commission by <\/p>\n
the defendant  that were in breach of the terms  and conditions of the lease <\/p>\n
and for that reason had determined and forfeited the lease. Despite the notice <\/p>\n
the defendant  did not remedy  but persisted  in the breach  of the terms and <\/p>\n
conditions of the lease. It had, therefore, lost the protection of the Bombay <\/p>\n
Rents,   Hotel   and   Lodging   House   Rates   Control   Act,   1947   (for   short   “the <\/p>\n
Bombay Rent Act”) and had made itself liable to quit the suit premises and <\/p>\n
hand   over   its   vacant,   peaceful   possession   to   the   plaintiff.     It   was   further <\/p>\n
alleged in paragraph 7 of the plaint that in consideration of a large sum as <\/p>\n
rent\/compensation   the   defendant   had   created   sub-leases   in   favour   of   sub-<\/p>\n
lessees\/tenants and had unlawfully, clandestinely and surreptitiously parted <\/p>\n
with possession of the lease-hold land in favour of the sub-lessees\/tenants. In <\/p>\n
the   transaction,   the   lessee,   defendant   no.1,   had   made   huge   profits.   It   was, <\/p>\n
therefore,   liable   to   eviction   for   committing   breach   of   the   covenant   in   the <\/p>\n
lease   deed   of   May   10,   1886.  In   paragraph   9   of   the   plaint,   injunction   was <\/p>\n
                                                  5<\/span><\/p>\n
sought   against   the   defendant   restraining   it   from   sub-letting   and\/or   parting <\/p>\n
with the possession  of the suit land in any manner whatsoever and in that <\/p>\n
connection it was once again stated that the defendant had no right to assign <\/p>\n
any   part   of   the   suit   land   without   the   licence   in   writing   of   the   lessors.   In <\/p>\n
paragraph   12   of   the   plaint   it   was   stated   that   the   suit   was   for   recovery   of <\/p>\n
possession of the suit land to which the  Bombay Act, 1947 was  applicable <\/p>\n
and the claim of the plaintiff  fell within section 28 of the Act. Hence, the <\/p>\n
court of Small Causes, Bombay, had the exclusive jurisdiction to try the suit. <\/p>\n
5.      Later on, after the sub-lessee was joined in as the second defendant, <\/p>\n
paragraph   7A   and   7B   were   added   by   an   amendment   in   the   plaint.   In <\/p>\n
paragraph 7A, reiterating the earlier allegation it was said that in respect of <\/p>\n
the suit land, defendant no.1 had unlawfully created sub-lease in favour of <\/p>\n
defendant   no.2   and   had   wrongfully   inducted   defendant   no.2   into   the   suit <\/p>\n
land. Defendant no.1 had thereby committed breach of the lease and had also <\/p>\n
violated the provisions of the Transfer of Property Act<\/a>, and also the terms of <\/p>\n
tenancy. In paragraph 7B it was submitted that the plaintiff was entitled to a <\/p>\n
decree of eviction against defendant no.1 as it had unlawfully created sub-<\/p>\n
lease and\/or given sub-tenancy and\/or transferred its interest in the suit land <\/p>\n
to defendant  no.2 and defendant  no.2 was equally liable  to be evicted and <\/p>\n
would be equally bound by the decree as it had no independent right, title or <\/p>\n
                                                6<\/span><\/p>\n
interest in the suit land and it had been unlawfully and illegally inducted into <\/p>\n
the suit land.\n<\/p>\n
\n
6.      Defendant no.1 in its written statement, denied having committed any <\/p>\n
breach of the terms  and conditions of the lease  deed dated May 10, 1886. <\/p>\n
The   defendant   denied   that   it   had   unlawfully   and   illegally   parted   with <\/p>\n
possession of the property in breach of the covenant in the lease deed and\/or <\/p>\n
in   the   manner   as   alleged   by   the   plaintiff.   In   paragraph   14   of   the   written <\/p>\n
statement it was stated that the advocate’s notice sent to the defendant at the <\/p>\n
instance   of   the   plaintiff   was   quite   invalid.   In   different   paragraphs   of   the <\/p>\n
notice,   the   area   of   the   lease   hold   lands   was   stated   differently.   The   notice <\/p>\n
gave   wrong   description   of   the   lease   hold   property;   it   was   vague, <\/p>\n
unintelligible and suffered from serious legal and factual infirmities. It was <\/p>\n
not possible to act upon it or to even give any proper reply to it. On account <\/p>\n
of its vagueness it was not possible for the defendant to know what was the <\/p>\n
breach   alleged   and   whether   it   was   capable   of   being   remedied   in   terms   of <\/p>\n
section 114-A<\/a> of the Transfer of Property Act. The defendant denied that it <\/p>\n
had either surreptitiously or clandestinely parted with possession by creating <\/p>\n
sub-lease   in respect  of the  leasehold  land  in favour  of a  third  party   in the <\/p>\n
manner   as   alleged   by   the   plaintiff.   The   defendant   further   denied   having <\/p>\n
demanded huge rent\/compensation from the alleged sub-lessees in respect of <\/p>\n
                                              7<\/span><\/p>\n
the  building  and  the  suit   land,  making  huge  profits.  The  defendant  denied <\/p>\n
any breach of clause 4 of the lease deed. According to the defendant, clause <\/p>\n
4 of the lease deed enjoined against assignment. There was no covenant in <\/p>\n
the   lease   deed   prohibiting   sub-lease.   The   defendant   stated   that   it   had   not <\/p>\n
“assigned” the premises or any part  thereof as alleged by the plaintiff and <\/p>\n
had not committed any breach of clause 4 of the lease deed. The plaintiff’s <\/p>\n
allegation was based on a misreading and misinterpretation of clause 4 of the <\/p>\n
lease deed. Reiterating that there was no assignment of the leasehold interest <\/p>\n
the defendant once again denied that it had committed any breach of clause 4 <\/p>\n
of the deed in the manner as alleged by the plaintiff. The defendant further <\/p>\n
stated   that   the   plaint   nowhere  stated   when  or  in   whose  favour   the   alleged <\/p>\n
breach was committed. The allegations made by the plaintiff were imaginary <\/p>\n
and   fanciful,   the   averments   in   the   plaint   were   quite   vague   and   devoid   of <\/p>\n
particulars and did not disclose the precise breach of the lease of which it <\/p>\n
was being accused. .\n<\/p>\n
\n
7.      After  the  impleadment  of defendant   no.2 in  the suit,  defendant   no.1 <\/p>\n
filed an additional written statement. In paragraph 3 of the additional written <\/p>\n
statement, it took the plea that defendant no.2 was neither a necessary party <\/p>\n
nor a proper party to be joined in the suit and its addition had made the suit <\/p>\n
liable to be dismissed for misjoinder of parties. In paragraph 4, in answer to <\/p>\n
                                                8<\/span><\/p>\n
paragraph   7A   of   the   plaint,   defendant   no.1   denied   that   the   sub-lease   in <\/p>\n
respect of the suit land was created unlawfully in favour of defendant no.2. It <\/p>\n
further denied that there was any breach of the lease or any violation of the <\/p>\n
provisions   of   the   Transfer   of   Property   Act<\/a>.   The   defendant   stated   that   no <\/p>\n
agreement   of   terms   of   tenancy   was   executed   and   hence,   there   was   no <\/p>\n
question of violation of any terms of tenancy as alleged by the plaintiff. In <\/p>\n
paragraph 5 of the additional written statement, in answer to paragraph 7B of <\/p>\n
the plaint, defendant no.1 denied that it had illegally and unlawfully created <\/p>\n
sub-lease and\/or given sub-tenancy and\/or transferred its interest in the suit <\/p>\n
land to defendant no.2. It denied that defendant no.2 was an unlawful and <\/p>\n
illegal sub-lessee\/licensee.\n<\/p>\n
\n
8.      Defendant  No.2,  M\/s  WBC  Company,  in  its   written   statement  took <\/p>\n
the plea that the plaintiff’s suit was barred by limitation and it was further <\/p>\n
liable   to   be   dismissed   because   the   plaintiff   had   not   set   out   any   cause   of <\/p>\n
action   against   defendant   no.2.   The   second   defendant   denied   that   the   sub-<\/p>\n
lease created by defendant no.1 in its favour was unlawful or in breach of the <\/p>\n
lease or in violation of the provisions of the Transfer of Property Act<\/a> and the <\/p>\n
terms   of   tenancy.   The   main   thrust   of   the   case   of   the   second   defendant, <\/p>\n
however, was that it had been in physical possession of the suit premises for <\/p>\n
several years prior to 1963 and this fact was fully within the knowledge of <\/p>\n
                                               9<\/span><\/p>\n
the   plaintiff.   The   second   defendant   stated   that   in   October,   1977   the   suit <\/p>\n
premises   was   inspected   by   a   representative   of   the   plaintiff   along   with   an <\/p>\n
architect and even at that time, the answering defendant was found to be in <\/p>\n
physical possession of the suit premises and the fact was acknowledged in a <\/p>\n
letter   of   November   7,   1977,   written   at   the   instance   of   the   plaintiff.   The <\/p>\n
plaintiff was, therefore, fully aware that defendant no.2 was in occupation of <\/p>\n
the suit premises long before the filing of the suit. The suit was, thus, clearly <\/p>\n
barred by limitation. Giving reply to the statement made in paragraph 9 of <\/p>\n
the   written   statement   the   second     defendant   denied   that   the   plaintiff   was <\/p>\n
entitled   to   a   decree   of   eviction   against   defendant   no.1   for   inducting   the <\/p>\n
answering   defendant   as   a   sub-lessee\/sub-tenant   into   the   suit   land.   The <\/p>\n
second   defendant   denied   that   it   was   an   unlawful   and   illegal   sub- <\/p>\n
lessee\/licensee\/inductee  and it had no independent right, title or interest  in <\/p>\n
the   suit   land   and   hence,   it   too   would   be   bound   by   the   decree   against <\/p>\n
defendant no.1. In this connection, the second defendant further stated that <\/p>\n
by a registered lease deed dated June 17, 1978 executed by defendant no.1 <\/p>\n
an   area   of   4596.47sq.mts.   (that   included   the   suit   land   together   with <\/p>\n
building(s) standing thereon) had been demised in its favour. The sub-lease <\/p>\n
was for the term of 20 years 8 months and 14 days commencing from June <\/p>\n
15,   1964   with   the   clear   acknowledgement   that   the   sub-lessee   (defendant <\/p>\n
                                             10<\/span><\/p>\n
no.2) was in occupation and possession  of the demised  property from that <\/p>\n
date. The second defendant further stated that even before the filing of the <\/p>\n
plaintiff’s suit, defendant no.1 had filed L.E. & C. suit no.271\/309 of 1987 <\/p>\n
seeking   its   eviction   from   the   demised   premises   and   the   suit   was   pending <\/p>\n
before the same court, i.e. the court of Small Causes, Bombay. In paragraph <\/p>\n
11   of   the   written   statement,   in   answer   to   paragraph   12   of   the   plaint, <\/p>\n
defendant   no.2   (quite   strangely!)   denied   that   the   suit   was   between   the <\/p>\n
landlord and tenant, relating to the possession of the suit land to which the <\/p>\n
Bombay Rent Act was applicable.\n<\/p>\n
\n
9.     On the basis of the pleadings of the parties, the trial court framed as <\/p>\n
many as 12 issues and later on, 3 additional issues. But of relevance for the <\/p>\n
present are issues 4, 5 and 7 which are as under:\n<\/p>\n
\n
               4. Whether the plaintiffs prove that, the defendants <\/p>\n
               have committed  breaches  of terms and conditions <\/p>\n
               of lease as alleged in para 4 (a) to (d) of the plaint?<\/p>\n<\/blockquote>\n
               5. Whether the plaintiffs prove that that they have <\/p>\n
               validly   determined   and   forfeited   the   lease   by   a <\/p>\n
               notice dated 7th December 1991?\n<\/p><\/blockquote>\n
<\/blockquote>\n
               7.   Whether   the   defendants   prove   that   the   suit   is <\/p>\n
               barred by law of limitation?\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Of the three additional issues, additional issue no.1 was allied to issue <\/p>\n
no.4   and   additional   issue   no.3   to   issue   no.7   as   quoted   above. <\/p>\n
                                                11<\/span><\/p>\n
Additional issue no.2 which was independent of the earlier issues was <\/p>\n
as under:\n<\/p>\n
\n
                “2. Whether the defendant no.2 is bound by decree <\/p>\n
                against the defendant no.1?”\n<\/p>\n
\n
10.     The trial court answered issue nos.4 and 5 and additional issue nos.1 <\/p>\n
and   2   in   the   affirmative.   And   issue   no.7   and   additional   issue   no.3   in   the <\/p>\n
negative.\n<\/p>\n
\n
11.     Discussing the question of breach of the terms and conditions of the <\/p>\n
lease deed dated May 10, 1886 by defendant no.1, the trial court held that <\/p>\n
the plaintiff had failed to establish the breach of any other term of the lease <\/p>\n
but had successfully proved the breach of the covenant against assignment of <\/p>\n
the leasehold property to a third party. The trial court pointed out, that under <\/p>\n
clause   4   of   the   lease   deed   defendant   no.1   was   not   supposed   to   part   with <\/p>\n
possession   of   the   leasehold   or   to   induct   any   third   person   into   the   suit <\/p>\n
property unless it obtained a licence in writing from the lessor, the plaintiff. <\/p>\n
There   was   no   material   to   show   that   it   had   obtained   any   licence   from   the <\/p>\n
plaintiff   before   parting   with   possession   of   the   leasehold   in   favour   of <\/p>\n
defendant no.2, the sub-lessee. The trial court found it was undeniable that <\/p>\n
defendant   no.1   had   inducted   defendant   no.2   into   the   suit   premises   by <\/p>\n
executing a sub-lease on June 17, 1978 for a term of 20 years 8 months and <\/p>\n
                                                  12<\/span><\/p>\n
14 days. The only plea raised on behalf of the defendants was that defendant <\/p>\n
no.2 was inducted over the suit premises in full knowledge of the plaintiff <\/p>\n
and defendant no.2 was in possession of and hence, it could not be said that <\/p>\n
the induction of defendant no.2 into the suit premises was illegal. The trial <\/p>\n
court also observed that for inducting defendant no.2 into the suit premises, <\/p>\n
defendant no.1 had charged compensation higher than the rent\/compensation <\/p>\n
it   paid   to   the   plaintiff.   The   act   of   defendant   no.1   was,   therefore, <\/p>\n
undoubtedly, contrary to clause 4 of the original lease deed and defendant <\/p>\n
no.1 was guilty of committing breach of the covenant as contained in clause <\/p>\n
4   of   the   lease   deed.   The   trial   court   also   upheld   the   validity   of   the   notice <\/p>\n
issued by the plaintiff to defendant no.1 determining and forfeiting the lease. <\/p>\n
It further held that the transaction between the plaintiff and defendant no.1 <\/p>\n
was covered by the provisions of the Transfer of Property Act<\/a> and, therefore, <\/p>\n
by no stretch of imagination the suit could be said to be barred by limitation. <\/p>\n
Dealing with the question of the decree being binding on defendant no.2, the <\/p>\n
trial court observed that once it was held that the sub-lease created in favour <\/p>\n
of   defendant   no.2   was   unlawful   and   illegal,   the   decree   of   eviction   passed <\/p>\n
against the lessee would fully bind the sub-lessee. The trial court decreed the <\/p>\n
suit by judgment and order dated June 12, 2002.\n<\/p>\n
\n                                               13<\/span><\/p>\n
12.     Against   the   judgment   and   order   passed   by   the   trial   court,   both <\/p>\n
defendant nos. 1 and 2 filed their separate appeals (no.741 and 742 of 2002 <\/p>\n
respectively).   The   appellate   court   formulated   a   number   of   points   for   its <\/p>\n
consideration   of   which   point   no.2   related   to   the   breach   of   the   terms   and <\/p>\n
conditions of the lease by defendant no.1 and point nos.4 and 5 related to the <\/p>\n
protection that might be available to defendant no.2 under section 15(1) of <\/p>\n
the Bombay Rent Act, 1947 and whether defendant no.2 would be bound by <\/p>\n
the   decree   of   eviction   passed   against   defendant   no.1.   Dealing   with   the <\/p>\n
breach of the terms of the tenancy by defendant no.1, the appeal court held <\/p>\n
the evidence on record showed that there was no written permission from the <\/p>\n
plaintiff   to   defendant   no.1   for   sub-letting   the   lease   hold   in   favour   of <\/p>\n
defendant no.2 in the year 1978. The appellate court observed that on behalf <\/p>\n
of   the   defendants,   it   was   sought   to   be   shown   that   defendant   no.2   was   in <\/p>\n
possession   of   the   premises   from   before   February   1,   1973,   and,   therefore, <\/p>\n
they were protected by the provisions of Bombay Rent Act, 1947. It went to <\/p>\n
the extent of saying that the evidence on record showed that the possession <\/p>\n
of  the   suit   premises   by   defendant   no.2   from  before   February   1,  1973   was <\/p>\n
admitted  but   since   the   premises   belonged   to   defendant   no.1   which   was  a <\/p>\n
Local Authority, the protection envisaged under the Bombay Rent Act, 1947 <\/p>\n
was   not   available   to   defendant   no.2   and   it,   therefore,   could   not   claim <\/p>\n
                                                14<\/span><\/p>\n
protection under section 15(2)<\/a> of the Act. In this connection, the appellate <\/p>\n
court said as follows:\n<\/p>\n
\n
        “Evidence   on   record   shows   that   the   fact   of   possession   of   the <\/p>\n
        Defendant   No.2   in   the   premises   prior   to   1.2.1973   is   admitted <\/p>\n
        but   when   the   premises   belongs   to   the   local   authority   i.e.   the <\/p>\n
        Defendant   No.1   and   Defendant   No.2   is   the   lessee   of   the <\/p>\n
        Defendant No.1, the provisions of the Bombay Rent Act, 1947 <\/p>\n
        will   not   be   applicable   and,   therefore,   the   Defendant   No.2   are <\/p>\n
        not entitled for protection of amendment of 1987 in Sec.15(2) <\/p>\n
        of   the   Act.   There   is   no   dispute   about   the   legal   position   that <\/p>\n
        amended   section   15(2)<\/a>   gives   protection   to   the   unlawful <\/p>\n
        occupant   who   were   in   possession   on   1.2.1973   but   when   the <\/p>\n
        provisions   of   the   said   Act   are   not   applicable   to   the   sub-lease <\/p>\n
        between   the   Defendant   No.1   and   2,   there   is   no   question   of <\/p>\n
        giving   protection   of   the   amended   provisions   of   the   Bombay <\/p>\n
        Rent Act. When it is admitted that the premises are sub-let by <\/p>\n
        Defendant  No.1  to  Defendant  No.2   in  the   year  1978  and   it  is <\/p>\n
        also admitted that there is no written permission granted by the <\/p>\n
        Plaintiffs for sub-letting, it is clear cut breach of the terms and <\/p>\n
        conditions of the lease agreement. After careful scrutiny of the <\/p>\n
        evidence   on   record,   we   are   of   the   view   that   Plaintiffs <\/p>\n
        established sub-letting by Defendant No.1 to Defendant No.2 in <\/p>\n
        the   year   1978   without   prior   permission   in   writing   and, <\/p>\n
        therefore, the Plaintiffs are entitled for a decree on the ground <\/p>\n
        of breach of terms and conditions of the tenancy.”<\/p>\n<\/blockquote>\n
In   light   of   its   findings,   the   appellate   court   dismissed   both   the   appeals   by <\/p>\n
judgment and order dated 31st March and April 1, 2004.\n<\/p>\n
\n
13.     Both, defendants 1 and 2 sought to challenge the orders passed by the <\/p>\n
Small Causes Court by filing civil revisions before the Bombay High Court. <\/p>\n
The  two  civil  revisions  were  dealt  with separately  in  the  High  Court. The <\/p>\n
civil revision filed by defendant no.1 (no.183 of 2007) was first dismissed <\/p>\n
                                                 15<\/span><\/p>\n
by a reasoned order dated April 17, 2008 and later on the civil revision filed <\/p>\n
by defendant no.2 (no.21 of 2009) by order date October 29, 2010, primarily <\/p>\n
following the order passed in the case of the first defendant. <\/p>\n
14.     In the case of the first defendant, the High Court affirmed the findings <\/p>\n
of the courts below that the execution of the sub-lease by defendant no 1 in <\/p>\n
favour of defendant no.2 without obtaining the permission in writing from <\/p>\n
the plaintiff was in breach of clause 4 of the lease deed. The High Court also <\/p>\n
dealt with the plea of defendant no.1 based on section 114A<\/a> of Transfer of <\/p>\n
Property Act, and held that the provision had no application to a case of sub-<\/p>\n
letting or under letting. It further held that the suit filed by defendant no.1 <\/p>\n
for the eviction of defendant no.2 would not remedy the breach committed <\/p>\n
by it, more so as at the time  of hearing of the Civil Revision  the suit still <\/p>\n
remained   pending.   On   these   findings,   the   High   Court   dismissed   the   civil <\/p>\n
revision.\n<\/p>\n
\n
15.     The strange thing about this case is the completely wrong course on <\/p>\n
which it has proceeded thus far. The suit was framed by the plaintiff and it <\/p>\n
was contested by the defendants and adjudicated on by the courts, right up to <\/p>\n
the High Court on the basis of the provisions of the Transfer of Property Act<\/a>. <\/p>\n
The provisions of law that must actually determine the rights and liabilities <\/p>\n
of   the   parties   find   no   mention   in   the   pleadings   of   the   parties   or   even   the <\/p>\n
                                                 16<\/span><\/p>\n
judgments   of   the   courts.   In   the   plaint,   at   one   place   it   is   stated   that   for <\/p>\n
committing breach of the terms and conditions of the lease the defendants <\/p>\n
had lost the protection  of the Bombay Rent Act. Further, for invoking the <\/p>\n
jurisdiction of the Small Causes Court, it is stated in the plaint that the suit <\/p>\n
was   for   recovery   of   possession   of   land   situated   at   Bombay   to   which   the <\/p>\n
Bombay Rent Act is applicable. (Interestingly even this statement made in <\/p>\n
the plaint is rather unmindfully denied by defendant no.2 vide paragraph 11 <\/p>\n
of its written statement!). Beyond this there is no reference to the provisions <\/p>\n
of   the   Bombay   Rent   Act.   In   the   three   judgments   of   the   courts   there   are <\/p>\n
discussions  on sections  106<\/a>, 108<\/a> (j)  and 114A of the Transfer of Property <\/p>\n
Act<\/a> but there is hardly any reference to the provisions of the Bombay Rent <\/p>\n
Act.   It   seems   that   the   provisions   of   the   Bombay   Rent   Act   which   have   a <\/p>\n
direct bearing on the case were completely overlooked by the three courts. <\/p>\n
From   the   judgment   of   the   first   appellate   court   it   indeed   appears   that <\/p>\n
defendant   no.2   had   sought   the   protection   of   section   15(2)   of   the   Bombay <\/p>\n
Rent Act but the court brushed aside the submission observing that since the <\/p>\n
suit   premises   belonged   to   defendant   no.1,   Mumbai   Port   Trust,   which   is   a <\/p>\n
local   authority   and   since   defendant   no.2   was   the   lessee   under   defendant <\/p>\n
no.1, the provisions of the Bombay Rent Act would not be applicable  and <\/p>\n
the second respondent was not entitled to the protection of section 15(2)<\/a> of <\/p>\n
                                                 17<\/span><\/p>\n
that   Act.   The   appellate   court   clearly   failed   to   appreciate   the   way   the <\/p>\n
provision of section 15<\/a> along with some other provisions of the Act applied <\/p>\n
to the case set up by the three parties to the suit.\n<\/p>\n
\n
16.     At the material time the relationship between the landlord, tenant and <\/p>\n
sub-tenant was regulated and fully governed by the Bombay Rent Act, 1947 <\/p>\n
(which came into force on January 19, 1948 and expired on March 31, 2000 <\/p>\n
when   it   was   replaced   by   the   Maharashtra   Rent   Control   Act   1999).   The <\/p>\n
preamble to the Act described it as an Act to amend and consolidate the law <\/p>\n
relating   to   the   control   of  rents   and   repairs   of   certain   premises,   of  rates   of <\/p>\n
hotels and lodging house and of evictions and also to control the charges for <\/p>\n
licence of premises, etc. It is undeniable that the plaintiff is a “landlord” as <\/p>\n
defined   in   section   5(3)<\/a>   and   the   suit   land   “premises”   as   defined   in   section <\/p>\n
5(8)<\/a> of the Act to mean “any land not being used for agricultural purposes”. <\/p>\n
Section 13<\/a> of the Act had the marginal title, “When landlord may  recover <\/p>\n
possession”  and enumerated the grounds on which alone a landlord would <\/p>\n
be   entitled   to   recover   possession   of   any   premises.   One   of   the   grounds, <\/p>\n
enumerated   in   clause   (e)   of   the   section,   was   unlawful   sub-letting   by   the <\/p>\n
tenant. Clause 13(1)(e) in so far as relevant for the present is as under:<\/p>\n
                “13. When landlord may recover possession.<\/p>\n
                (1)Notwithstanding anything contained in this Act <\/p>\n
                but   subject   to   the   provisions   of   sections   15<\/a>   and <\/p>\n
                                           18<\/a><\/span><\/p>\n
            15A<\/a>,   a   landlord   shall   be   entitled   to   recover <\/p>\n
            possession of any premises if the Court is satisfied-<\/p>\n<\/blockquote>\n
                     (a) xxxxxxx<\/p>\n<\/blockquote>\n
                     (b) xxxxxxx<\/p>\n<\/blockquote>\n
                     (c) xxxxxxx<\/p>\n<\/blockquote>\n
                     (d) xxxxxxx<\/p>\n<\/blockquote>\n
                     (e) that the tenant has, since the coming into <\/p>\n
            operation   of   this   Act,    unlawfully   sub-let   or   after <\/p>\n
            the date of commencement  of the Bombay Rents, <\/p>\n
            Hotel   and   Lodging   House   Rates   Control <\/p>\n
            (Amendment)   Act,   1973,   unlawfully   given   on <\/p>\n
            licence,   the   whole   or   part   of   the   premises   or <\/p>\n
            assigned   or   transferred   in   any   other   manner   his <\/p>\n
            interest therein; or”\n<\/p><\/blockquote>\n
<\/blockquote>\n
  Section 14<\/a> of the Act afforded protection to sub-tenants and licensees and <\/p>\n
provided as follows:\n<\/p><\/blockquote>\n
<\/blockquote>\n
            “14.     Certain   sub-tenants   and   licensees   to <\/p>\n
            become tenant on determination of tenancy<\/p>\n
            (1) When the interest of a tenant of any premises is <\/p>\n
            determined   for   any   reason,   any   sub-tenant   to <\/p>\n
            whom the premises or any part thereof have been <\/p>\n
            lawfully   sub-let   before   the   1st   day   of   February <\/p>\n
            1973 shall subject to the provisions of this Act, be <\/p>\n
            deemed to become the tenant of the landlord on the <\/p>\n
            same terms and conditions as he would have held <\/p>\n
            from the tenant, if the tenancy had continued.<\/p>\n
            (2) Where the interest of a licensor, who is a tenant <\/p>\n
            of any premises is determined for any reason, the <\/p>\n
            licensee,   who   by   section   15A<\/a>   is   deemed   to   be   a <\/p>\n
            tenant shall, subject to the provisions of this Act, <\/p>\n
            be deemed to become the tenant of the landlord on <\/p>\n
            the   terms   and   conditions   of   the   agreement <\/p>\n
            consistent with the provisions of this Act.”  <\/p>\n<\/blockquote>\n
Then came section 15<\/a> which is reproduced below:<\/p>\n
                                         19<\/span><\/p>\n<\/blockquote>\n
“15.  In   absence   of   contract   to   the   contrary,   tenant   not   to <\/p>\n
sub-let or transfer or to give on licence.\n<\/p>\n
\n(1) Notwithstanding anything contained in any law but subject <\/p>\n
to any contract to the contrary, it shall not be lawful after the <\/p>\n
coming into operation of this Act for any tenant to sub-let the <\/p>\n
whole   or   any   part   of   the   premises   let   to   him   or   to   assign   or <\/p>\n
transfer   in   any   other   manner   his   interest   therein   and   after   the <\/p>\n
date   of   commencement   of   the   Bombay   Rents,   Hotel   and <\/p>\n
Lodging House Rates Control (Amendment) Act, 1973, for any <\/p>\n
tenant to give on licence the whole or part of such premises:<\/p>\n
Provided that the State   Government may by notification in the <\/p>\n
Official   Gazette,   permit   in   any   area   the   transfer   of   interest   in <\/p>\n
premises held under such leases or class of leases or the giving <\/p>\n
on licence any premises or class of premises and no such extent <\/p>\n
as may be specified in the notification.\n<\/p>\n
\n(2) The prohibition against the sub-letting of the whole or any <\/p>\n
part   of   the   premises   which   have   been   let   to   any   tenant,   and <\/p>\n
against   the   assignment   or   transfer   in   any   other   manner   of  the <\/p>\n
interest of the tenant therein, contained in sub-section (1), shall, <\/p>\n
subject to the provisions of this sub-section be deemed to have <\/p>\n
had no effect before the 1st day of February, 1973, in any area <\/p>\n
in which this Act was in operation before such commencement; <\/p>\n
and   accordingly,   notwithstanding   anything   contained   in   any <\/p>\n
contract or in the judgment, decree or order a Court, any such <\/p>\n
sub-lease,   assignment   or   transfer   of   any   such   purported   sub-<\/p>\n
lease, assignment  or transfer in favour of any person who has <\/p>\n
entered   into   possession,   despite   the   prohibition   in   sub-section <\/p>\n
(1)   as   purported   sub-lessee,   assignee   or   transferee   and   has <\/p>\n
continued   in   a   possession   on   the   date   aforesaid       shall   be <\/p>\n
deemed   to   be   valid   and   effectual   for   all   purposes,   and   any <\/p>\n
tenant who has sub-let any premises or part thereof, assigned or <\/p>\n
transferred   any   interest   therein,   shall   not   be   liable   to   eviction <\/p>\n
under clause (e) of sub-section (1) of section 13<\/a>.\n<\/p>\n
\n
        The   provisions   aforesaid   of   this   sub-section   shall   not <\/p>\n
affect in any manner the operation of sub-section (1) after the <\/p>\n
date aforesaid.”\n<\/p>\n
\n                                                20<\/span><\/p>\n
17.     It   is   important   to   clearly   understand   the   interplay   between   sections <\/p>\n
13(1)(e)<\/a>   and   section   15<\/a>   of   the   Act.   Section   13(1)(e)<\/a>   provided   that   any <\/p>\n
unlawful  sub-letting   by   the   tenant   since   January   19,   1948,   the   date   of <\/p>\n
coming   into   operation   of   the   Act   or   after   February   1,   1973,   the   date   of <\/p>\n
commencement  of the Amendment Act (Maharashtra Act 17 of 1973) any <\/p>\n
licence   given   by   the   tenant  unlawfully  or   any  unlawful  assignment   or <\/p>\n
transfer   of   his   interest   in   any   other   manner   in   the   whole   or   part   of   the <\/p>\n
demised premises would make the tenant liable to eviction.<\/p>\n
18.     Section  15<\/a>,  in  sub-section   (1)  then  laid  down  what  would  make   the <\/p>\n
sub-letting,   assignment,   transfer   or   licence   unlawful.   It   said   that   any   sub-<\/p>\n
letting or assignment or transfer of his interest in any manner made by the <\/p>\n
tenant after January 19, 1948 or any licence given by him after February 1, <\/p>\n
1973   for   the   whole   or   part   of   the   premises,  unless   sanctioned   by   the <\/p>\n
contract,  would not  be lawful, notwithstanding  any thing  contained  in <\/p>\n
any law.  Section 15(1)<\/a>, thus, took away any protection given to the tenant <\/p>\n
by any other law, e. g., section 108<\/a> (j) of the Transfer of Property Act<\/a> and <\/p>\n
prohibited him from any sub-letting or licensing or assignment or transfer of <\/p>\n
his interest in any other manner in the absence of a sanctioning provision in <\/p>\n
the contract unless, of course, the demised premises came under the proviso <\/p>\n
                                                  21<\/span><\/p>\n
to section 15(1)<\/a>. But it is no one’s case here that the proviso to section 15(1)<\/a> <\/p>\n
has   any   application   to   the   present   suit   land.     In   light   of   section   15(1)<\/a>,   so <\/p>\n
much emphasis put on behalf of the plaintiff on clause 4 of the lease deed <\/p>\n
dated   May   10,   1886   would   appear   to   be   rather   out   of  place   because   even <\/p>\n
without   clause   4,   in   the   absence   of   a   sanctioning   clause   in   the   lease   the <\/p>\n
subletting   by   the   tenant   would   not   be   lawful   and   would   come   within   the <\/p>\n
mischief of section 13(1)(e)<\/a>.\n<\/p>\n
\n
19.     But  then came  section  15<\/a> (2) that removed  the “unlawful”  tag from <\/p>\n
any   sub-letting,   assignment,   transfer   of   interest   in   any   other   manner   or <\/p>\n
licensing, though contrary to sub-section (1), that were made before the 1st <\/p>\n
day   of   February,   1973.   The   second   part   of   section   15(2)<\/a>   laid   down   that <\/p>\n
regardless of the prohibition in sub-section (1) and notwithstanding anything <\/p>\n
contained  in any  contract  or in the judgment, decree or order of a court  a <\/p>\n
sub-lease,   assignment   or   transfer   of   interest   in   any   other   manner   shall   be <\/p>\n
deemed to be valid if the person in whose favour transfer is made entered <\/p>\n
into possession of the demised property and continued to be in possession on <\/p>\n
February   1,   1973.   It   needs   to   be   emphasised   here   that   the   second   part   of <\/p>\n
section   15(2)<\/a>   overruled   a   contract   by   saying   at   the   beginning, <\/p>\n
“Notwithstanding any thing contained in any contract…”.  This means  that <\/p>\n
clause 4 of the lease deed would be ineffective and inoperative if the sub-<\/p>\n
                                               22<\/span><\/p>\n
lease   made   by   defendant   no.1   in   favour   of   defendant   no.2   otherwise <\/p>\n
conformed to the conditions laid down in section 15(2) of Bombay Rent Act. <\/p>\n
More   importantly,   section   15(2)<\/a>   further   provided   that   any   sub-letting, <\/p>\n
assignment   or  transfer   of interest   in any  other  manner  made  by  the  tenant <\/p>\n
that came within  its  protective  ambit  would save him from eviction  under <\/p>\n
section 13(1)(e)<\/a>. To sum up, any sub-letting, assignment, transfer of interest <\/p>\n
in any other manner or licensing made by the tenant after February 1, 1973 <\/p>\n
without   there   being   any   sanctioning   clause   in   the   contract   or   without   the <\/p>\n
express consent of the landlord would constitute a ground for eviction under <\/p>\n
section 13(1)(e)<\/a> of the Act.\n<\/p>\n
\n
20.     It is in the light of the legal position as explained above that we may <\/p>\n
now   proceed   to   examine   the   findings   of   fact   recorded   in   this   case.   It   is <\/p>\n
undeniable   that   defendant   no.1   made   a   sub-lease   and   parted   with   the <\/p>\n
possession   of   the   suit   land   in   favour   of   defendant   no.2.   But   the   crucial <\/p>\n
question   is   when   did   this   transaction   take   place   and   when   was   defendant <\/p>\n
no.2 inducted into the suit land? The plaintiff in its pleadings and evidence is <\/p>\n
completely silent on this question. The trial court also did not advert to the <\/p>\n
question. But, the first appellate court has recorded a finding. The appellate <\/p>\n
court observed:\n<\/p>\n
\n                                            23<\/span><\/p>\n
               “The learned advocate for both the appellants took <\/p>\n
               us to the evidence to show that defendant no.2 is in <\/p>\n
               possession of the premises since prior to 1\/2\/1973 <\/p>\n
               and   therefore,   they   are   protected.  Evidence   on <\/p>\n
               record   shows   that   the   fact   of  possession   of   the <\/p>\n
               defendant no.2 in the premises prior to 1\/2\/1973 <\/p>\n
               is admitted but….”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                                                (Emphasis <\/p>\n
       Added)<\/p>\n
Having   come   to   this   finding,   the   appellate   court   misdirected   itself   by <\/p>\n
misconstruing the provision of section 15(2) of the Bombay Rent Act. But <\/p>\n
the finding of fact  that defendant  no.2 came in possession of the suit land <\/p>\n
from before February 1, 1973 and continued to be in its possession on that <\/p>\n
date is very much there.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
21.    The finding is arrived at for good reasons and it is supported by both <\/p>\n
oral   and   documentary   evidences.   A   charge  certificate   issued   by   the   Estate <\/p>\n
Manager’s   Department,   Mumbai   Port   Trust   dated   February   1,   1963   is   on <\/p>\n
record as Annexure P5. It is as under:\n<\/p>\n
\n                                       24<\/span><\/p>\n
                                                                                No.551<\/p>\n
                             MUMBAI PORT TUST<\/p>\n
                  ESTATE MANAGER’S DEPARTMENT<\/p>\n
                           CHARGE CERTIFICATE<\/p>\n
         This is to certify that the Plot of Land i.e. position of old RR <\/p>\n
No.736 situated at Wadi Bunder Road Santa Cruz Estate & agreed to <\/p>\n
be leased by Trustees’ Resolution No.1121 dated 11\/12\/1962 to M\/s <\/p>\n
Morarji   Dharamsey   Bhawanji   &   Ors.   (Wadi   Bunder   Cotton   Press <\/p>\n
Company) has been pegged out to the dimensions measuring 5571 5\/6 <\/p>\n
square   yards   and   handed   over   to   Mr.   Morarji   Dharamsey   Bhawanji <\/p>\n
this   day   the   1st  of   February   1963   by   me   with   effect   from   1st  March <\/p>\n
1955.<\/p><\/blockquote>\n
\n
                                Signed________(illegible)_______Surveyor<\/p>\n
and taken over and acknowledged correct by me.\n<\/p>\n
\n
                                 Signed Morarji Dharamsey Bhawanji Lessee<\/p>\n
Sd\/-\n<\/p>\n
Assistant Manager<\/p>\n
North\/ South District<\/p>\n
         Forwarded to the Lessee\/s M\/s Morarji Dharamsey Bhawanji & <\/p>\n
others trading in the name and style of M\/s Wadi Bunder Cotton Press <\/p>\n
Co. for information and record.\n<\/p>\n
         No   building   operations   on   the   plot   mentioned   on   the   reverse <\/p>\n
should be commenced until the plans in respect thereof are previously <\/p>\n
approved by the Trustees.\n<\/p>\n
         This   permit   should   be   produced   for   inspection   whenever <\/p>\n
demanded by an Officer of the Port Trust.\n<\/p>\n
\nDated 1\/2\/1963<\/p>\n
                                                                                    Sd\/-\n<\/p>\n
                                                                    Estate Manager”\n<\/p>\n
\n                                               25<\/span><\/p>\n
22.     There are receipts of the years 1963 and 1965 issued by the Mumbai <\/p>\n
Port   Trust  acknowledging   the   payment   of rent  from defendant  no.2.  More <\/p>\n
importantly the sub-lease deed that forms the sheet-anchor of the plaintiff’s <\/p>\n
case, though executed on June 1, 1978, was made effective retrospectively <\/p>\n
from June 15, 1964. It came to an end on February 26, 1985. <\/p>\n
23.     On the basis of the materials on record, we must accept and proceed <\/p>\n
on   the   basis   that   defendant   no.2   was   in   occupation   of   the   suit   land   long <\/p>\n
before February 1, 1973 and had continued to be in its possession on that <\/p>\n
date.   The   sub-letting   by   defendant   no.1   in   favour   of   defendant   no.2,   thus, <\/p>\n
clearly fell within the protective ambit of section 15(2) of Bombay Rent Act. <\/p>\n
24.     Faced   with   this   situation,   Mr.   Sundaram,   learned   senior   advocate, <\/p>\n
appearing for the plaintiff-respondent no.1 contended that in order to claim <\/p>\n
protection   under   section   15(2)<\/a>   of   the   Act,   it   was   incumbent   upon   the <\/p>\n
claimant  to   show   that   there   was   a   sub-lease,   assignment   or   transfer   in   his <\/p>\n
favour prior to 1973 and it was in pursuance of such sub-lease, assignment <\/p>\n
or transfer that it came in possession and continued to be in possession of the <\/p>\n
demised property and was actually in possession of the demised property on <\/p>\n
February 1, 1973. In this case, according to Mr. Sundaram, apart from the <\/p>\n
sub-lease   dated   June   17,   1978,   there   was   no   other   sub-lease   or   any   other <\/p>\n
                                               26<\/span><\/p>\n
instrument of transfer to show that defendant no.2 came in possession of the <\/p>\n
suit land in pursuance of any sub-lease, assignment or transfer, etc.<\/p>\n
25.     We find no force in this submission. Section 15(2)<\/a>, apart from others <\/p>\n
uses   the   expression   `transfer   of   interest   in   any   other   manner’.   It   is <\/p>\n
sufficiently wide to include even an oral arrangement pursuant to which the <\/p>\n
sub-lessee might enter upon the land and continue in its possession. We have <\/p>\n
no manner of doubt that the initial induction of defendant no.2 on the suit <\/p>\n
land was covered by section 15(2)<\/a> of the Act.\n<\/p>\n
\n
26.     Mr. Sundaram next contended that the possession of the suit land by <\/p>\n
defendant no.2 on February 1, 1973 might have had the protection of section <\/p>\n
15(2)<\/a> of the Act. But a basic change was brought about by the execution of <\/p>\n
the   lease   deed   on   June   17,   1978   which   gave   rise   to   a   new   relationship <\/p>\n
between   the   two   defendants,   the   lessee   and   the   sub-lessee.   Mr.   Sundaram <\/p>\n
submitted that the execution of the sub-lease by defendant no.1 in favour of <\/p>\n
defendant   no.2  on   June   17,  1978   and   the  continued   possession   of   the   suit <\/p>\n
land   by   defendant   no.2   on   the   basis   of   that   sub-lease   would   certainly   not <\/p>\n
come under the protection of section 15(2)<\/a> of the Act.\n<\/p>\n
\n
27.     In   order   to   appreciate   Mr.   Sundaram’s   submission   it   would   be <\/p>\n
apposite to refer to section 22 of the Bombay Rent Act, which is as follows: <\/p>\n
                                              27<\/span><\/p>\n
               “22.   Particulars   to   be   furnished   by   tenant   of <\/p>\n
               tenancy   sub-let   or   transferred   before   the   1st <\/p>\n
               day of February 1973.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               (1)   Every   tenant   who     before   the   1st   day   of <\/p>\n
               February   1973,   has   without   the   consent   of   the <\/p>\n
               landlord given in writing sub-let the whole or any <\/p>\n
               part   of   the   premises   let   to   him   or   assigned   or <\/p>\n
               transferred in any other manner his interest therein, <\/p>\n
               and every sub-tenant to whom the premises are so <\/p>\n
               sub-let   or   the   assignment   or   transfer   is   so   made, <\/p>\n
               shall furnish to the landlord, within a month of the <\/p>\n
               receipt of a notice served upon him by the landlord <\/p>\n
               by   post   or   in   any   other   manner,   a   statement   in <\/p>\n
               writing   signed   by   him   giving   full   particulars   of <\/p>\n
               such   sub-letting   assignment   or   transfer   including <\/p>\n
               the rent charged or paid by him.\n<\/p><\/blockquote>\n
\n               (2)   Any   tenant   or   sub-tenant   who   fails   to   furnish <\/p>\n
               such   statement   or   intentionally   furnishes   a <\/p>\n
               statement which is false in any material particular <\/p>\n
               shall,   on   conviction,   be   punished   with   the   fine <\/p>\n
               which may extend to one thousand rupees.”<\/p>\n<\/blockquote>\n
28.     Section   22<\/a>   provided   for   the   landlord   to   have   full   information <\/p>\n
concerning   the   sub-lessee\/licensee   who   might   be   in   occupation   of   the <\/p>\n
demised premises on February 1, 1973, including the rent charged from him <\/p>\n
by the tenant. The provisions of section 22<\/a> clearly suggest that after the cut <\/p>\n
off  date,  i.e., February  1,  1973 there  should  be  no  material  change,  to the <\/p>\n
detriment   of   the   landlord   in   the   terms   and   conditions   on   which   the   sub-<\/p>\n
tenant was in possession of the demised  premises on that date and in case <\/p>\n
                                                 28<\/span><\/p>\n
after that date, any material change is brought about in the status of the sub-<\/p>\n
tenant, to the prejudice of the landlord that might not have the protection of <\/p>\n
section   15(2)<\/a>   but   may   come   within   the   mischief   of   section   13(1)(e)<\/a>.   And <\/p>\n
hence, the point raised by Mr. Sundaram appears to be theoretically correct. <\/p>\n
But   in   the   facts   of   the   case   the   point   does   not   seem   to   arise.   Mr.   Parag <\/p>\n
Tripathi,   learned   Additional   Solicitor   General,   appearing   for   the   Mumbai <\/p>\n
Port Trust, rightly submitted that in pith and substance the sub-lease deed of <\/p>\n
1978,   was   simply   a   formalization   and   continuation   of   the   arrangement   as <\/p>\n
existing   between   the   defendants   prior   to   February   1,   1973.   There   was   no <\/p>\n
material change in the status of defendant no.2 or in the terms and conditions <\/p>\n
on which it was in possession of the suit land on February 1, 1973 or in the <\/p>\n
inter se relationship between the two defendants. The execution of the sub- <\/p>\n
lease  on June 17, 1978 by defendant no.1 in favour defendant  no.2 would <\/p>\n
not, therefore, militate against the protection offered by section 15(2)<\/a> of the <\/p>\n
Act. The execution of the lease would not constitute a ground for eviction <\/p>\n
against defendant no.1 in terms of section 13(1)(e)<\/a> of the Act.<\/p>\n
29.     In light of the discussion made above, we find that the judgments and <\/p>\n
orders   passed   by   the   High   Court   and   the   two   courts   below   are   quite <\/p>\n
unsustainable.  We, accordingly, set aside  the judgments and orders passed <\/p>\n
                                       29<\/span><\/p>\n
by the High Court and the court of Small Causes and dismiss the suit filed <\/p>\n
by the plaintiff-respondent no.1.\n<\/p>\n
\n
30.     The appeals are allowed but with no order as to costs.<\/p>\n
                                                    ………………………………\n<\/p>\n
        …J<\/p>\n
                                           ( AFTAB ALAM )<\/p>\n
                                        …………………………………J<\/p>\n
                                           ( R.M. LODHA )<\/p>\n
New Delhi,<\/p>\n
April 8,  2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Board Of Trustees Of The Port Of … vs M\/S Byramjee Jeejeebhoy P.Ltd.& … on 8 April, 2011 Author: A Alam Bench: Aftab Alam, R.M. Lodha REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3147 OF 2011 (Arising out of S.L.P.( C) No.19522 of 2008) Board […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-250321","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBoard Of Trustees Of The Port Of ... vs M\/S Byramjee Jeejeebhoy P.Ltd.& ... on 8 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/board-of-trustees-of-the-port-of-vs-ms-byramjee-jeejeebhoy-p-ltd-on-8-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Board Of Trustees Of The Port Of ... vs M\/S Byramjee Jeejeebhoy P.Ltd.& ... on 8 April, 2011 - 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