vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4193 OF 2009 WRIT PETITION NO.4193 OF 2009 WRIT PETITION NO.4193 OF 2009 Jamshedji Ratanji Nazir ... Petitioner V/s. The Board of Trustees of the Port of Mumbai & Ors. ... Respondents Ms.Fereshte Sethna with Divya Gurbuxani i/b Dunmorr Sett for Petitioner Mr.U.J. Makhija a/w Dipankar Das i/b M.V. Kini & Co. for Respondent no.1 CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: APRIL 23, 2009 APRIL 23, 2009 APRIL 23, 2009 P.C.: P.C.: P.C.: . This Petition is taken up for final hearing at the stage of admission itself. Although Respondent Nos.2, 3 and 4 are not served, the contesting respondent, i.e. Respondent No.1 has been served and, therefore, the petition is being decided finally. 2. The petitioner is aggrieved by the decision of the Estate Officer dated 24.3.2009 by which the application made by Respondent Nos.1, 2 and 3 to the Case No.EO/E(117) (117A) of 2005 has been rejected. Respondent No.1 in the application is the petitioner herein and the other two respondents are Respondent Nos.3 and 4 to the petition. According to the petitioner, the Estate Officer has refused to pass a decree in respect of the notice issued u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act against the petitioner and Respondent Nos.3 and 4 although they are willing to submit to a decree on : 2 : admission. It is further submitted that the petitioner has reserved his right to contest the notice issued u/s 7 for mesne profits. 3. The impugned order indicates that the Estate Officer has decided that although the petitioner and the respondents have agreed to submit to a decree with respect of the notice u/s 4 of the Act, such a decree could be passed only when the proceeding in respect of the notice u/s 7 for mesne profits are finally decided. 4. The learned Counsel for the petitioner submits that when the petitioner and Respondent Nos.3 and 4 are willing to submit to a decree for eviction there is no reason as to why the Estate Officer should not pass a decree in these terms immediately, rather than waiting till the orders are passed in respect of mesne profits. 5. Mr.Makhija points out that under Order 20 Rule 12 of the CPC a decree for possession and mesne profits go hand in hand and, therefore, the Estate Officer has rightly deferred the decision in the matter regarding the eviction proceedings. He submits that unless vacant possession of the premises is handed over the decree for eviction would be meaningless. 6. In my view, once two separate notices have been : 3 : issued under the Public Premises (Eviction of Unauthorised Occupants) Act, one for eviction and the other for mesne profits there is no reason why the Estate Officer cannot pass a decree in respect of the notice issued u/s 4 for eviction when the petitioner chooses to submit to such a decree. Merely because the petitioner has submitted to such a decree it does not mean that the Estate Officer would have to decide immediately the mesne profits which are payable by the petitioner as that would be decided on the basis of the evidence led u/s 7 of the Act. Obviously the Petitioner would be entitled to contest the notice issued u/s 7 of the Act. 7. The petition is, therefore, disposed of by directing the Estate Officer to pass a decree for eviction against the petitioner and Respondent Nos.3 and 4 since they have chosen to submit to the decree. Such a decree shall be passed within two weeks from today. 8. It is made clear that merely because the petitioner and Respondent Nos.3 and 4 have submitted to the decree by Estate Officer it does not mean their rights u/s 7 have been foreclosed. The matter with respect to mesne profits will be adjudicated without prejudice to the rights and contentions of all parties. : 4 : 9. Writ Petition is disposed of accordingly.