vil Appeal No 1154 1155 N of 1974
From the Judgment and Order dated 3061972 of the Court of Judicial Commissioner of Goa Daman and Diu in Civil Revision Application Nos 13 and 14 of 1972
Anil Dev Singh and Miss A Subhashini for the Appellant
SK Mehta and Dhruv Mehta for the Respondent
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and order of the Judicial Commissioner Goa dated 3061972 setting aside the order of the Civil Judge Senior Division Panaji and declaring that the suit instituted by the appel lant had abated
The appellant Bank instituted a suit before the Civil Judge for recovery of an amount of Rs 63315 against Vi naique Naique advanced to him as loan by it
Vinaique Naique the defendant contested the suit issues were framed and evidence was being recorded
On 262
1970 statement of PW I was recorded and the case was adjourned to another date but on that date also the case was adjourned to 2371970
The suit was again adjourned on 237
1970 on the ground that the defendant Vinaique Naique was indisposed and 813 was hospitalised
Thereafter the suit was taken up for hearing on 411
On that date the defendant s pleader informed the Court orally that the defendant had died at Margaon but did not give any further details
The Custodian of the appellant Bank Panaji deputed his clerk to Margaon to collect necessary information and to obtain death certifi cate from the Civil Registration Office if the defendant was found to be dead
The clerk visited Margaon on 5th and 6th November 1970 and on enquiry he came to know that the defendant had died on 481970 he obtained death certifi cate from the Civil Registration Office on 6111970 and handed over the same to the Custodian of the Bank on 7th November 1970
Since 8th November 1970 was Sunday the Custodian could not file the same in the court
The appel lant made application under Order XXII Rule 4 of CPC on 9th November 1970 for bringing on record Smt
Nalini Bai Naique as the legal representative of the deceased original defend ant
He made another application for condoning delay in making the application duly supported by affidavit
The appellant made another application requesting the court to treat his earlier application made for condonation of delay as an application under Order 22 Rule 9 for setting aside the abatement of the suit
Nalini Bai Naique late defendant s widow contested the applications on the ground that the news regarding the death of Vinaique Naique had been published in the local newspapers and the plaintiff had knowledge of his death and further the suit had abated on the expiry period of 3060 days of the death of original defendant as no application for setting aside abatement had been filed within time
Meanwhile the appellant made another application for adding the names of six heirs four sons one major son and three minor sons and two minor daughters of the deceased defendant Vinaique Naique on the ground that earlier the appellant had no knowledge about the sons and daughters of the deceased defendant
On behalf of Mrs Nalini Bai it was vehemently asserted before the trial court that the application for substitution was not maintainable as it was filed beyond time and in the alternative she was not the legal heir of the deceased defendant but she was only his Meeira  and as other legal heirs of the deceased defendant were not brought on record within time the appli cation for bringing the sons and daughters on record was liable to be rejected
The trial Judge on an elaborate consideration of the rival contentions held that even though the news relating to the death of original defendant Vi naique Naique had been reported in local newspapers but in view of the affidavit of Custodian and other material on record the appellant Bank came to know of the death of the defendant only on 4  1 1970 from the deceased defendant s lawyer in the court and within four days thereof application for 814 bringing the legal representative of the deceased defendant was made therefore the application made under Order XXII Rule 4 was not barred by time
The learned Judge further held that since Smt
Nalini Bai Naique one of the legal representative of the deceased defendant was brought on record within time the sons and daughters could also be impleaded as defendants along with her
On these findings the learned Judge by his order dated 1611
1971 set aside the abatement of the suit and directed for substituting the name of the widow Smt
Nalini Bai Naique along with the name of four sons and two daughters as defendants to the suit in place of deceased defendant Vinaique Naique
Mrs Nalini Bai filed a revision application under Section 115 of Code of Civil Procedure before the Judicial Commissioner of Goa at Panaji against the aforesaid order of the trial Judge
The Judicial Commissioner by his order dated 3061972 set aside the order of the trial Judge and declared the suit to have abated
Aggrieved the plaintiff Bank has preferred this appeal after obtaining special leave
The learned Judicial Commissioner interfered with the order of the trial Judge on the sole ground that Mrs Nalini Bai whose name was proposed to be brought on record was not legal representative of the deceased Vinaique Naique as under the Portugees Law she being the widow had acquired Meeira rights and her status was not that of Cabeca De Casal Head of the family and administrator of the other heirs of deceased Vinaique Naique
Since all the heirs of the deceased defendant had not been brought on record along with Mrs Nalini Bai within time the suit abated as Mrs Nalini Bai alone could not represent the estate of the deceased defendant
The learned Judicial Commissioner did not interfere with other findings recorded by the trial Judge instead he set aside the order of the trial Judge on the sole ground as aforesaid and declared the suit to have abated
After hearing learned counsel for the parties we are of opinion that the learned Judicial Commissioner committed serious error of law in setting aside the order of the trial Judge
Legal representative as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued
The definition is inclusive in character and its scope is wide it is not confined to legal heirs only instead it stipulates a person who may or may not be heir competent to inherit the property of the deceased but he should represent the 815 estate of the deceased person
It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased
All such persons would be covered by the expression legal representative
If there are many heirs those in possession bona fide without there being any fraud or collusion are also entitled to represent the estate of the deceased
In the instant case it is not disputed that under the Portugees Law of Inheritance which was applicable to Goa at the relevant time Mrs Nalini Bai had acquired Meeira rights according to which she had acquired half share in the estate left by the deceased Vinaique Naique and the remaining half share was inherited by sons and daughters of the deceased who were subsequently brought on record
On the admitted facts Mrs Nalini Bai therefore represented the estate of the deceased Vinaique Naique
Once the name of Mrs Nalini Bai was brought on record within time and the application for setting aside abatement was allowed by the trial Judge the suit could proceed on merits and the mere fact that the remaining legal representatives were brought on record at a subsequent stage could not render the suit defective
The Custodian of the appellant Bank had no knowl edge that there were other legal representatives of deceased defendant along with Mrs Nalini Bai
He had filed affidavit that on making diligent and bona fide inquiry he had come to know that Nalini Bai was the sole legal representative but later on he acquired knowledge that the deceased had left four sons and two daughters as legal representatives along with Mrs Nalini Bai therefore he made another application for bringing them on record
The trial Judge accepted the testimony of the Custodian and placing reli ance on the decision of Andhra Pradesh High Court in Mannem Venkataramaih vs M Munnemma  Ors AIR 1963 AP 406 he allowed the substitution application
The trial court com mitted no error in law instead he applied correct princi ples of law
In Daya Ram  Ors
vs Shyam Sundari  this Court recognised the principle of representation of the estate by some heirs where the defendant died during the pendency of the suit to enforce claim against him and all the heirs are not brought on record within time
This Court held that if after bona fide inquiry some but not all the heirs of a deceased defendant are brought on record the heirs so brought on record represent the entire estate of the deceased and the decision of the Court in the absence of fraud or collusion binds even those who are not brought on record as well as those who are impleaded as legal represen tatives of the deceased defendant
In NK Mohd Sulaiman vs NC Mohd Ismail  this Court 816 rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim if all the heirs of the deceased were not impleaded in the suit and a decree was obtained and in execution the property was sold the auc tion purchaser could have title only to the extent of the interest of the heirs who were impleaded and he could have no title to the interest of those heirs who had not been impleaded to the suit
The Court held that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since they had been brought on record the decree was binding on the entire estate In the instant case Mrs Nalini Bai had admittedly hall share in the property left by the deceased defendant and as she was brought on record within time she represented the estate of the deceased defendant and the suit could proceed on merit
In this view the impleadment of other legal repre sentatives at a subsequent stage could not affect validity of the proceedings
In the result we allow the appeal and set aside the judgment and order of the Judicial Commission er dated 3061972 and restore the order of the trial Judge
Since trial of the suit has been delayed we direct the trial court to make every effort to decide the suit expeditiously
The appellant is entitled to its costs throughout
PSS Appeal allowed


Summary:
The respondent Board of Trustees of the Port of Bombay is a statutory authority and as such has been exempted from the operation of the Bombay Rents Hotel  Lodging House Rates Control Act 1947
The appellant has been the lessee of the respondent since about 1932 in respect of part of the original plot No 4 now plot 5B which adjoins plot No 6 tenanted by Ms Bombay Bharat  Swadeshi Rice Mills
In or about 1933 34 Ms Bombay Bharat  Swadeshi Rice Mills took over the appellant and a rice mill was started on appel lant s part of plot No 4 and plot No 6
In December 1957 the Town Planning Scheme No 1 in Bombay City came into force and the original plot No 4 was reconstituted into final plot No 5
In or about 1963 the respondent sub divided plot No 5 into final plot 5A and final plot 5B and as a result of the sub division Ms Dhanji Mavji became the tenantoccupant of a major portion of plot 5B In 1970 71 the respondent agreed to let the entire plot 5B including the portion which had been let to and was in possession of the appellant since 1933 to Dhanji Mavji
The appellant objected to the offer made to Dhanji Mavji but the respondent asserted that as Dhanji Mavji had been in possession of the major portion of plot No 5B it agreed to let the entire plot to them
In the premise the respondent purported to terminate the tenancy of the appel lant in respect of its 
portion of plot 5B and later filed suit for eviction
The Trial Court dismissed the suit hold ing that it would be legitimate to infer that the letting was for a manufacturing purpose and hence the notice of termination was bad
The appellate court reversed that decision
Aggrieved thereby the appellant filed a writ petition under Article 227 of the Constitution
The High Court accepted the finding of the appellate court that the notice of ejectment was valid notice and there was no waiver of notice
752 Before this Court it was contended on behalf of the appellant that 1 the exemption from the operation of the Rent Act was given to the Port Trust Authority on the as sumption that it would act in public interest and would not behave like ordinary landlords 2 the action of the re spondent in terminating the appellant s contractual tenancy had a public law character attached to it and was according ly subject to judicial review 3 every action of the respondent which was State  within Article 12 of the Con stitution whether it be in the field of contract or any other field was subject to Article 14 of the Constitution and must be reasonable and taken only upon lawful and rele vant grounds of public interest 4 the respondent s estab lished rationalpolicy was to offerallot a finalreconsti tuted plot for development to the existing occupants thereof as joint tenants and 5 the eviction of the appellant was not necessary in the public interest for the proper develop ment of the plot as required by the Town Planning Scheme
On behalf of the respondent it was contended that 1 the onus was entirely on the appellant to establish that the Bombay Port Trust had terminated the tenancy or taken the proceedings in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of Article 14 2 since there was no obligation or duty cast upon the Bombay Port Trust to provide accommodation there could be no question of acting in governmental character and such a body stood on the same footing as any other citizen and would in respect of such activity not be subjected to public law duty 3 the respondent s dealing with tenants was a con tractual dealing and it was not a matter for public law domain and was not subject to judicial review and 4 it was the policy of the respondent to allot the entire re constituted plot to one person who was occupying the major portion of such plot for its proper development
Dismissing the appeal it was HELD Per Sabyasachi Mukharji J Kania J agreeing 1 Bombay Port Trust being a public body even in respect of its dealing with its tenants it must act in public interest and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction
761G Rampratap Jaidayal vs Dominion of India 1952 54 Bom
LR 927 and Baburao Shantaram More vs The Bombay Housing Board 1954 V SCR 572 referred to
753 2 Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in a certain manner
such bodies must make good such presumption while acting by virtue of such privilege
Judi cial review to oversee if such bodies are so acting is permissible 762D E Radhakrishna Agarwal  Ors
vs State of Bihar  Ors
  and Life Insurance Corporation of India vs Escorts Ltd  Ors 1985 3 Supp SCR 909 referred to
3 The field of letting and eviction of tenants is normally governed by the Rent Act
The Port Trust is statu torily exempted from the operation of the Rent Act on the basis of its publicGovernmental character
Every actionactivity of the Bombay Port Trust which constituted State within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest
762E F 763A B SP Rekhi vs Union of India  and MC Mehta  Anr
vs Union of India  Ors
 1987 1 SCC 395 referred to
4 Where there is arbitrariness in State action Arti cle 14 springs and judicial review strikes such an action down
Every action of the Executive authority must be sub ject to rule of law and must be informed by reason
So whatever be the activity of the public authority it should meet the test of Article 14
763C All exercise of discretion or power by public authori ties as the respondent in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard
763H 764A If a governmental policy or action even in contractu al matters fails to satisfy the test of reasonableness it would be unconstitutional
764A B EP Royappa vs State of Tamil Nadu   Maneka Gandhi vs Union of India 1978 2 SCR 621 RD Shetty vs The International Airport Authority of India  Ors   Kasturi Lal Lakshmi Reddy vs State of J  K  and 754 Ajay Hasia vs Khalid Mujib Sehravardi   referred to
7 Governmental Policy would be invalid as lacking in public interest unreasonable or contrary to the professed standards and this is different from the fact that it was not done bona fide
764B C 8 There is always a presumption that a governmental action is reasonable and in public interest
It is for the party challenging its validity to show that the action is unreasonable arbitrary or contrary to the professed norms or not informed by public interest and the burden is a heavy one
764C D 9 Judicial review is not concerned with the decision but with the decision making process
Unless this restric tion on the power of the court is observed the court under the guise of preventing the abuse of power would be itself guilty of usurping power which does not belong to it
765E F 10 The Court cannot really substitute a decision reached by a fair procedure keeping the policy of the re spondent in mind by a different decision only on the ground that the decision which appeals to the court is a better one
765G Council of Civil Service Unions vs Minister for the Civil Service  Chief Constable of the North Wales Police vs Evans  In re Pres ton vs IRC and Regina vs Chief Consta ble of the Merseyside Police  referred to
11 The Bombay Port Trust perhaps was justified in coming to the conclusion that the only possible way to develop the properties of the Bombay Port Trust in compli ance with the Town Planning Scheme was by allotting plots to holders of major portions thereon
Such a decision cannot be faulted
766E F 12 Upon the facts of the instant case there was an implied obligation in respect of dealings with the tenantsoccupants of the Port Trust Authority to act in public interestpurpose
That requirement is fulfilled if it is demonstrated that the Port Trust authorities have acted in pursuance of a policy which is referable to public pur pose
Once that norm is established whether that policy is the best policy or whether another policy was possible is not relevant for consideration
767E F 755 13 Under the constitutional scheme of this country the Port Trust Authorities were required by relevant law to act in pursuance of public purpose
This Court is satisfied that they have proceeded to so act
767G Per section Ranganathan J Concurring On the facts of the instant case the action of the Port Trust was not improper and there are no grounds for inter ference
768F