1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1925 OF 2007 Ashraf Abdulla ...Petitioner Vs. Union of India & Anr. ...Respondents Mr.Sanjay Jain a/w. Mr. Pradeep J. Thorat i/b. Mr. Jagdish R.Chomal, Advocate for the Petitioner Ms. Rajani Iyar, Sr. Counsel a/w. Mr. Mihir Mody and Mr. N.H.Munjee, Mr. Rajesh Talekar and Mr. Nirehil Pai i/b. M/s. K. Ashar & Co., for the Respondent. CORAM : SMT. ROSHAN DALVI, J. Date of Reserving the Judgment: 10TH FEBRUARY, 2010 Date of Pronouncement of Judgment: 9TH MARCH, 2010 J U D G M E N T: 1. The Petitioner, carries on business of restaurant in the name and style of M/s. New Lucky Stores and Restaurant as its sole proprietor in Dhanashtra Building at Woodhouse Road, Colaba, Mumbai-400 005. M/s. New Lucky Stores and Restaurant is the tenant of Respondent No.3 Reserve Bank of India (R.B.I.) in respect of the ground and first floor of what is called House No.120-122 at Woodhouse Road, Colaba, Mumbai-400 005. The 2 building belonged to a private party prior to 1947. It was acquired by the R.B.I in about 1947. At that time one Ismail Hussain Dadarkar (Dadarkar) was the tenant of the suit premises. He carried on business in the name and style of M/s. New Army Restaurant and Stores. 2. Prior to 1957 Dadarkar appears to have assigned the said business and tenancy rights to Abdullah Mohammed Jaffar, Hassan Jamaluddin, and Nariman Palanji Fitter. These 3 persons assigned the said business and tenancy rights to one Mohammed Gouse Kader (Kader) on 11th January 1957. Kadar agreed to assign and later assigned his business and tenancy rights of the ground floor of the premises to one B.C.Abdulla Abdul Rehman, the Petitioner’s father on 2nd February 1959 and 19th April 1959 respectively. 3. The Petitioner’s father and thereafter, the Petitioner carried on the business of running the M/s. New Lucky Stores and Restaurant on the ground floor of the said House No.120-122. The rent receipt was issued for the ground as well as the first floor initially in the name of Dadarkar and after 1959 in the name of M/s. New Lucky Stores and Restaurant. Kadar lived and/or carried on business from one room on the first floor of the said House No. 120-122 after he assigned the business of M/s. New Lucky Stores and Restaurant along with the tenancy rights on the ground premises to the Petitioner’s father. Since the tenancy rights was earlier in the name of Dadarkar and the tenancy rights was for the ground as well as first floor premises, whilst assigning the tenancy rights of the ground floor under the agreement dated 2nd February 1959 and the Deed of Assignment on 19th 3 April 1959 Kadar and the Petitioner’s father “agreed” that the Petitioner’s father will not insist upon the transfer of rent receipts to his name and will have no right or claim to the tenancy of the upper floor which was retained by Kadar, but Kadar agreed to pay Rs.45/- per month to the Petitioner’s father as the assignee in respect of the upper floor and the Petitioner’s father agreed that he would pay the entire rent (made up of the amount of Rs.45/- given by the Kadar along with the balance of the rent payable in respect of the ground floor) to the landlord of the building who would continue to issue one rent receipt for the ground and upper floor. 4. This arrangement continued since 1959 until 1998 when the R.B.I noticed the premises having been sublet. The R.B.I caused an inspection and an inspection report was produced. It showed one Cable Video Corporation (C.V.C.) carrying on business on the first floor as also some persons sitting in House No.120-122 carrying on business as Plumber and Repairer and further noticed the ground floor of the premises being partitioned and separated from the first floor premises. R.B.I, therefore, terminated the tenancy of M/s. New Lucky Stores and Restaurant alleging various subtenancies having been created by its tenant M/s. New Lucky Stores and Restaurant, and since House No.120-122 is a public premises instituted proceeding thereunder by and through the Estate Manager for eviction inter alia by the Petitioner and the C.V.C from the said premises. 5. The Kadar’s son, through his Advocate replied to the notices of eviction denying the sub-tenancy or unauthorised occupation. He contended that he carried on business on the first floor of the premises above M/s. New 4 Lucky Stores and Restaurant at House No.122 on Woodhouse Road in Dhanshtra Compound building, Colaba, Mumbai-400 005. He set out the agreements of 11th January 1957 and 2nd February 1959 where under the assignment of the business and tenancy rights initially of M/s New Army Restaurant and Stores and later of M/s. New Lucky Stores and Restaurant came to be made. He contended that his father was the “lawful tenant and regularly paid rent/bill to the Bank through M/s. New Lucky Stores and Restaurant ”. He also contended that the Petitioner’s father who conducted New Lucky Stores and Restaurant was the occupant of the ground floor only and that he, through his father was the lawful and legal tenant of the entire structure including the first floor “as the deceased father never surrendered the tenancy rights of the said structure in favour of the deceased B.C. Abdullah Rehman (the Petitioner’s father)”. He claims to be a tenant of the entire structure since 1957. He denied that the first floor premises was unauthorisedly used by C.V.C and few others. He claims to be carrying on “3/4 business activities under various names”, one of them being C.V.C. He claimed that his father was running those business activities along with some others and denied sub-letting the premises as those business activities were “controlled, supervised and managed” by his father (Kadar). 6. The proceedings under the Public Premises Act (P. P.Act) have been initiated and conducted before the Estate Officer against the Petitioner as well as C.V.C who were found in unauthorised occupation of the premises of R.B.I. They have been separately represented before the Estate Manager. Thereafter C.V.C/Kadar/his son are stated to have abandoned the premises 5 on the first floor of House No.120-122 in Dhanshtra Building Compound at Woodhouse Road, Colaba, Mumbai-400 005. Only the Petitioner who is still in occupation of the ground floor premises of House No.120-122 in Dhanshtra Building Compound has prosecuted the litigation and filed Misc. Appeal No.34/2003 therefrom before the learned Principal Judge of the Bombay City Civil and Sessions Court, Mumbai. 7. Evidence was led by the parties before the Estate Officer. The R.B.I led evidence of the person who inspected the premises in 1998 pursuant to which the notice of termination of tenancy came to be issued and the proceedings came to be initiated under Sections 4 and 5 of the P. P. Act against the Petitioner and C.V.C as the unauthorised occupants. Kadar’s son was examined as witness of the C.V.C. The Petitioner examined himself on behalf of New Lucky Stores and Restaurant. The Estate Officer as well as the learned Principal Judge considered the evidence of these 3 witnesses. 8. The case of sub-tenancy and/or unauthorised occupation can be seen essentially from the admitted facts between the parties. It would be prudent to set out these admitted facts which have been brought on record through the oral evidence of the aforesaid witnesses and the documentary evidence contained in the agreements and assignments of 1957 and 1959 recited above produced and relied upon by Kadar and the Petitioner. 9. Admitted Facts from Documentary Evidence :- a) The premises consists of ground and one upper floor. 6 b) Its postal address is 120-122, Woodhouse Road, Colaba, Mumbai-400 005. c) The premises is a separate structure in Dhanshtra Building Compound, Woodhouse Road, Colaba, Mumbai-400 005. d) The premises was acquired by the R.B.I prior to 1947. e) Dadarkar was the tenant in respect of the premises since prior to 1947 and until about 1957. f) Dadarkar appears to have assigned the premises to the aforesaid 3 persons Abdullah Mohammed Jaffar, Hassan Jamaluddin, and Nariman Palanji Fitter (the document of assignment has not been produced, but the fact has been recited in agreement and assignment of 1957 and 1959). g) Dadarkar was the tenant of the entire premises called a single unit; the premises was one single unit. h) The aforesaid 3 persons assigned the business and tenancy rights of New Army Restaurant and Stores on the ground floor and the store room on the first floor of House No.120-122 to Kadar. i) The agreement recited that the tenancy rights stood in the name of Dadarkar. j) In the agreement of 11th January 1957 Kadar as the assignee agreed to pay the rent to the landlord payable by the tenant of the ground floor and the first floor “store room attached thereto”. k) In the said agreement the tenancy of both the premises came to be assigned to Kadar and Kadar agreed to pay rent of 7 both the premises which was then Rs.161/- and one anna. l) The said agreement of 1957 showed only one rent bill which Kadar was at liberty to have transferred to his name. m) On the very next day i.e., on 12th January 1957 the same parties agreed that though the entire premises in which the business in the name of New Army Restaurant and Stores was being conducted was assigned to Kadar along with the tenancy rights, the possession of first floor room was in dispute and hence that was not handed over to Kadar. n) In February 1989 Kadar agreed to assign the ground floor premises to the Petitioner’s father. o) On 19th April 1959 Kadar assigned the ground floor premises to the Petitioner’s father. p) In both these documents it is recited that the rent receipts stood in the name of Dadarkar in respect of the entire premises of ground as well as the upper floors. q) In the said agreement and assignment of 1957 and 1959 the Petitioner’s father agreed not to insist upon transfer of the rent receipts. r) By then the rent receipts were issued in the name of M/s. New Lucky Stores and Restaurant. s) The rent receipt was of a single unit. t) Hence the parties agreed that Kadar would pay Rs.45/- per month (which represented the rent of the first floor premises to the Petitioner’s father) and the Petitioner’s father would pay the landlord the entire rent including Rs.45/- representing the first 8 floor and the remainder balance rent of the ground floor restaurant premises to the landlord who would continue to issue one rent receipt for both ground and upper floors. u) Hence there was only one rent receipt issued by R.B.I. It was in the name of M/s. New Lucky Stores and Restaurant. v) The rent receipts are type-written on plain sheets of paper and issued by the Personnel Manager of R.B.I. These rent receipts show House No.120 only. 10.These are the facts stated in the documentary evidence relied upon by the Petitioner and Kadar. These show what the parties in occupation of the premises, initially tenanted to Dadarkar, did with the premises; they admittedly assigned the premises until it was occupied by Kadar and the Petitioner’s father and later the Petitioner, but ostensibly only for the business of M/s. New Lucky Stores and Restaurant which was the only tenant of R.B.I. It may be mentioned that those documents earlier sent by Kadar and the Petitioner to R.B.I and relied upon by them, themselves show an unmistakable sub-tenancy. 11.The other admitted facts which have been brought out in the oral evidence of the parties further show how the premises came to be occupied and used by the Kadar as well as the Petitioner’s father and later the Petitioner. 12.Admitted facts from oral evidence :- 9 a) The restaurant on the ground floor has an entrance facing Woodhouse Road; the first floor premises has an entrance from the Dhanashtra Building Compound. b) There were no separate rent receipts issued for the ground floor and the first floor; there was only one rent receipt in respect of the entire structure. c) Initially Kadar paid rent of the entire structure. After the assignment of 19th April 1959 he paid ½ the rent to the Petitioner’s father and the Petitioner’s father contributed the other ½ of the rent and paid the total amount to R.B.I. d) The store room on the first floor was attached to the restaurant on the ground floor; there was an entrance from the ground floor to the first floor through the restaurant e) “now” there are 2 separate and distinct premises; the entrance is “now” blocked. f) There was a division of the ground floor and the first floor premises by partition. Hence the premises was not continued as a single unit. g) Conversion of one unit into two units was not approved by R.B.I; no permission was taken from the R.B.I. h) Kadar had no connection with the ground floor after 1959 and likewise New Lucky Stores and Restaurant has no connection with the first floor though the structure remains the same. i) Tenancy was not transferred in the name of occupants of the first floor. 10 j) The first floor premises had one open hall, toilet and bathroom. 13 persons (as enumerated in the evidence) lived there. k) Wooden partitions were made which were subsequently demolished. l) Kadar resided in the premises in 1970s. m) Kadar started dealing in advertisement business and Cable Television Business in 1980s; n) he had not sublet the first floor to any party during the period 1980 to 1997. o) At the time of the evidence Kadar’s son was carrying on computer engineering work and his sister was conducting business from the first floor premises. p) Kadar was the owner of New Lucky Stores and Restaurant before the assignment. Thereafter the Petitioner’s father was the owner (but Kadar had not transferred the tenancy rights in the name of the Petitioner’s father); the name M/s. New Lucky Stores and Restaurant was Kadar’s creation. q) 4 companies viz. Tristar Video, Transvision Advertising, Mediatech Publication and C.V.C were the names of the businesses carried on from the first floor by Kadar; he had employed some staff. In the teeth of such evidence by Kedar as well as the Petitioner showing numerous admissions of creation of sub-tenancy, the Petitioner deposed that he paid rent to R.B.I for House No.120 and beyond that he did not know anything. He had nothing to do with the tenants on the first floor who had a separate way to go 11 to the premises. 13.The Estate Manager as well as the learned Principal Judge came to the conclusion that a single premises being House No.120-122 which was tenanted to New Lucky Stores and Restaurant was partitioned and converted into 2 units without the permission of R.B.I and was occupied by different occupants who conducted different businesses dividing the upper floor premises in different units without the permission of the R.B.I. The assignment made in favour of the Petitioner’s father itself shows that the assignment was of a single unit of premises for which a single rent receipt was issued and though the Assignor and the Assignee agreed to divide the rent amongst themselves, they accepted that only one rent receipt would be issued by the R.B.I. Despite this the Petitioner contended that he did not know about the tenancy rights of the first floor which was always a separate unit. The argument of this separation is itself made upon the document showing that the ground floor premises was assigned to the Petitioner’s father though both the parties would contribute the rent and the Petitioner’s father would obtain a single rent receipt from R.B.I. The very date of assignment of 1959 showed that the premises though tenanted only to New Lucky Stores and Restaurant was sub-divided by and between the Assignor and Assignee and both contributed the rent for the single unit to obtain a single rent receipt. The Petitioner has not produced or got produced from Kadar’s son, who was examined on behalf of Kadar, any rent receipt separately issued in any name for any premises under House No.122. Similarly Kadar’s son on behalf of Kadar has not produced any evidence to show that the various business including C.V.C were carried on 12 by his father and none else. Even the income tax returns or registers of the various businesses stated to have been carried on by Kadar were not produced by his son who gave evidence on his behalf. Though the tenanted premises was in the name of New Lucky Stores and Restaurant Kadar lived on the first floor of the premises along with various other persons. 14.It has to be appreciated that the Dadarkar had tenancy rights of ground plus first floor. He was the only tenant of the entire premises. The tenancy has been transferred to the name of New Lucky Stores and Restaurant. It has not been bifurcated in two names. The bifurcation is of the premises by the parties in occupation and not of the tenancy by the R.B.I. The bifurcation is without the approval and permission of the R.B.I. The rents were paid by the Assignor and the Assignee in equal shares to make up the rent for the entire premises. These admitted facts themselves not only show, but prove the sub-tenancy created and the unauthorised occupation of various parties in the names of various businesses carried on in the premises. Had there been no sub-tenancy created there would have been no need for Kadar and the Petitioner’s father to share the rent and to obtain a single rent receipt. New Lucky Stores and Restaurant would be the only business in the entire premises of ground plus first floor of House No. 120-122 in Dhanashtra Building Compound as a single unit that it, once was. 15.It may be mentioned that it is for the parties claiming to be in possession and occupation to show that their possession and occupation is not 13 unauthorised since they are issued show-cause notice under the Special Legislation being the P. P. Act under which they have to show cause how they are in unauthorised occupation and why they cannot be treated as such. This they could have done by showing only one business of New Lucky Stores and Restaurant being run from the entire single premises. Atleast Kadar could have shown that he himself carried on other businesses and had not let out the premises to any other person to carry on any other business. This could have been shown only by the documentary evidence of such businesses. This has not been shown. Consequently, the entire tenanted premises comes under clout. It ceases to be the single tenanted premises that it was. Hence merely because in a part of the premises, being the ground floor, the Restaurant has been run, the sub-letting cannot be ruled out. The sub-letting is seen from the very inception when the Petitioner’s father entered into premises as the Assignee under the agreement to assign and the Deed of Assignment of 1959. From the very inception he did not only take over the business of New Lucky Stores and Restaurant that was being carried on initially by Dadarkar in the name of New Army Restaurant and Stores and later by Kadar in the name of New Lucky Stores and Restaurant. The division of the unit as reflected in the Deed of Assignment itself shows the sub-tenancy created; and that is the admitted position as emanating from admittedly executed documents relied upon the Petitioner himself ! 16.Two main features of the transaction between Kadar and the Petitioner’s father are partition and bifurcation of the premises leaving 2 independent premises in exclusive possession, charge and control of 2 separate 14 persons/businesses/identities and the use of the premises by both of them was to carry on (independent) businesses of their own. 17.The transaction may be better explained and understood by considering the reverse case : If Kadar continued with the business of running the restaurant – New Lucky Stores & Restaurant (which was his creation) himself, but in a portion of the tenanted premises – e.g., on the ground floor alone and inducted CVC or any such other business on the 1st floor, sub-letting would have been clear and complete. In the reverse scenario when Kadar inducted the Petitioner’s father to carry on the restaurant business in a part of the premises, under the name which was his creation, and he restricted himself to the other part and carried on his own separate, independent different businesses also the sub-tenancy would be similarly created, the admitted camouflage of sharing of rents but getting one rent receipt notwithstanding. 18.It is not for the parties to enter into a transaction of one nature and contend that it is of another nature by mere words and conduct more specifically when their conduct is admittedly to camouflage the real transaction. This can be seen from the case of Sohanlal Naraindas Vs. Laxmidas Raghunath Gadit (1963) 68 B.C.R. 400 in which though the parties described their transactions as a licencee, the exclusive possession enjoyed by the transferee led the Court to hold that it was lease as the conditions of Section 105 of the Transfer of Property Act were complied. Similarly exclusive possession of the premises with no control thereupon by the tenant was held to be sub-tenancy; Dipak Banerjee Vs. Lilabati 15 Chakraborty 1987 4 SCC 161 and parting with possession with the right to exclude others by another entity being in control and possession was also held to be subtenancy; M/s. Shalimar Tar Products Ltd., Vs. H.C. Sharma & Ors. A.I.R. 1988 S.C. 145. 19.Similarly in the case of Vijay Kumar Vs. Raghubir Singh 1973 2 SCC 597 when the premises was partitioned with 2 doors in place of one, with no access from one portion to another on account of the wooden partition wall, exclusive possession of 2 businesses- one of a clinic and one of motor parts - with no income tax returns or accounts of the tenant showing the income of both the businesses, it was held that the tenant had parted with possession and the plea of joint business was not established. 20.In this case also complete lack of documentary evidence of CVC or any other business stated to be of Kadar shows that those were other separate businesses, inducted in the tenanted premises though under but one rent receipt in the name of the restaurant. 21.The learned Principal Judge of City Civil and Sessions Court, Mumbai has correctly appreciated the evidence and has given correct reasoning with regard to the issue of one rent receipt, the separate occupation and possession of Kadar and the Petitioner’s father, the division of rent amongst themselves, the various businesses being run in the premises though one rent receipt was issued, the ownership of the business having changed from Kadar to the Petitioner’s father, the lack of transfer of tenancy rights in the name of the Petitioner’s father and the premises being bifurcated by 16 partition on the staircase, thereafter converting one unit into two. The impugned order cannot be faulted and needs no interference. 22.The Petitioner has not discharged the burden of showing that the tenanted premises has not been sub-let. Consequently, he is in authorised occupation and has been rightly ordered to vacate the public premises. 23.Hence the Writ Petition is dismissed. Rule is discharged. This order is stayed for 4 weeks. (SMT.ROSHAN DALVI, J.)