1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO 80 OF 2007 Shri Sudam M. Patilhande ..Applicant. Vs. Smt. Sunanda W/o. Ramakant B. Desai & Ors. ..Respondents. Mr. V. A. Thorat, Senior Counsel with Mr. A.S. Karwande for the Applicant. Mr. P. K. Dhakephalkar, Senior Counsel with Mr.A. A. Kocharekar for Respondent Nos.1 to 5. CORAM : S.J. VAZIFDAR, J. DATED : 16TH APRIL, 2008 P.C. : This Civil Revision Application has been filed by the original defendant, tenant against the order of the Appellate Court of the Small Causes Court at Bombay dismissing the petitioners appeal against the order of the trial court decreeing the suit filed by the respondents, landlords by directing the petitioner to hand over 2 possession of the suit premises and to pay the arrears of rent to the respondents and directing an enquiry into the mesne profits. 2. The petitioner is one of the tenants in the building owned by the respondents. The building was owned by one, Ramakant Desai. Respondent no.1 is the widow of the said Ramakant Desai. The respondents are the only heirs and legal representatives of the said Ramakant Desai and now the owners of the suit property. The Respondents/plaintiffs had filed the suit for recovery of possession of the suit premises from the petitioner on various grounds including on the ground that the petitioner had denied the plaintiffs title and on the ground of default in the payment of rent. 3. There is no warrant for interfering with the concurrent findings of the lower courts. Apart from this it was not even open to the lower courts to take a different view as similar matters had been dismissed by an order of this court dated 3.9.2000 and the order has been upheld by an order of the Supreme Court dated 28.10.2002 in Petitions for Special Leave to Appeal Nos.19415 to 19421 of 2002. 4. Almost identical suit had been filed by the respondents 3 against various tenants in the same building. Identical defences had been taken by the tenants in those proceedings. The tenants therein had denied the respondents status as landlords and had admittedly refused to pay the rent. The trial court dismissed the suit. The Appellate Court of the Small Causes Court however allowed the appeals and decreed the suits. The tenants filed in this Court various petitions being Writ Petition Nos.3669 of 2002 to 3675 of 2002 challenging the orders of the Appellate Court. By the said order and judgment dated 3.9.2000 the learned judge dismissed the group of petitions challenging similar orders. The learned judge traced the history of the matter including the orders passed by the authorities under the Maharashtra Cooperative Societies Act and the orders passed by this court in various other proceedings adopted by the tenants. The learned judge rejected the tenants contentions regarding the maintainability of the suit by the respondents who were also the plaintiffs in those proceedings. The learned judge held that the tenancy in favour of the petitioners had admittedly been created by the respondents/plaintiffs after constructing the building and that the 4 tenants were therefore estopped from claiming that at the time when the tenancy was created the plaintiffs were not owners of the building and that therefore the title did not vest in them. The learned judge also held that as the tenants were disputing the title of the plaintiffs a decree on the ground of disclaimer was liable to be passed in favour of the plaintiffs. Finally the learned judge observed that admittedly the tenants had not been paying rent to the plaintiffs for a long time on the ground that they were not willing to do so as the plaintiffs were not the landlords. Therefore the learned judge held that the decree for eviction was liable to be passed even on the ground of non-payment of rent. 5. Similar contentions have been raised in the present proceedings by the petitioner who is another tenant admittedly identically situated and whose stand and conduct has been identical to that of the tenants before the learned judge in the other matters. In the present case the petitioner after having accepted the relationship between herself and the respondents as that of one between a tenant and landlords and having paid rent from 1955 to 1989 i.e. for a period of 39 years sought to deny the 5 relationship. On the basis of this contention the petitioner also admittedly stopped paying rent for a number of years leading to the filing of the present proceedings. In this view of the matter it was not open to the lower courts to take a different view in the present matter. Nor is it open to me to take a different view in the present case as admittedly the facts in this regard and the findings are binding on me. This is more so in view of the fact that the order and judgment of the learned judge has been confirmed by the Supreme Court. 6(A). Mr.Thorat, the learned senior counsel appearing on behalf of the petitioner further submitted that in any event the suit was not maintainable by the respondents in view the provisions of sections 4(1) and (4) (a) of the Bombay Rent Act which read as under : - “4(1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy (licence) or other like relationship created by a grant from (or a licence given by) the Government in respect of premises (requisitioned or taken on lease or on licence) by the Government, including any premises taken on behalf of the Government on the basis of tenancy (or of 6 licence or other like relationship by, or in the name of any officer subordinate to the Government authorised in this behalf;) but it shall apply in respect of (premises let, or given on licence, to) the Government or a local authority (or taken on behalf of the Government on such basis by, or in the name of, such officer).” “4(4)(a) The expression “premises belonging to the Government or a local authority” in sub- section (1) shall notwithstanding anything contained in the said sub-section or in any judgment, decree or order of a Court, not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease (licence) or other grant, although having regard to the provisions of such agreement, lease (licence) or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be; and” (B). Mr.Thorat relied upon a judgment of a learned single judge of this court in the case of ZUNSHI versus TUKARAM 1993 Maharashtra Law Journal 859 and in particular paragraph 6 thereof which reads as under : - “6. It is to be noted that section 4(4)(a) was incorporated in the Rent Act by Bombay Act 4 of 1953. The same was necessitated on account of the judgment of the Supreme Court in the case of M/s. Bhatia Co-operative Housing Society Ltd. vs. D. C. Patel reported in AIR 1953 SC 16. In that case the Board of 7 Trustees for the improvement of the City of Bombay, who were then the owners, had granted to one Sitaram Laxman a lease of 999 years with covenant for construction. The said Sitaram, in pursuance of the said covenant, constructed New Sitaram Building. By Bombay Act 16 of 1925 all the properties belonging to the Board of Trustees for the improvement of the City of Bombay vested in the Bombay Municipality. The leasehold rights in respect of the aforesaid New Sitaram Building was acquired by Bhatia Co-operative Housing Society Ltd. The said Society issued notice to a tenant D. C. Patel which let the society to file a suit in the City Civil Court and the question arose for consideration was whether the Rent Act was applicable to those premises. The matter was carried upto the Supreme Court which ultimately held that the Rent Act was not applicable as the building as also the land vested in the Local Authority. It appears that in order to overcome the hardship, which was likely to be visited upon the tenants on account of the aforesaid judgment, the present amendment was brought about by introducing section 4(4)(a).” 7. The judgment is of no assistance to Mr Thorat. In that case the plaintiff had filed a suit inter-alia for a declaration that he was a tenant in respect of the suit premises. The defendant, landlord had admittedly encroached upon government land and had constructed a structure thereon. The plaintiff/tenant took out an application for injunction. The defendant resisted the same on 8 the ground that the said Act did not govern the matter and hence the court of Small Causes had no jurisdiction to entertain and try the suit. The trial court held that the Act did not apply to the suit and ordered the plaint to be returned for presentation to the proper court. The defendant filed an appeal before the Appellate Bench of the Small Causes Court which reversed the above finding and directed the trial court to decide the case on merits. The defendant filed a petition in this court challenging this order. 8. It is important to note that it was admitted in that case that the defendant was a squatter and had constructed the structure on government land unauthorisedly. It is In these circumstances that the question which rose before this court was whether the said premises were governed by the provisions of the Act. 9. In the present case the respondents are not squatters. Nor is the construction unauthorised. As noted in the judgment of this court dated 3.9.2002 certain plots of land were allotted on lease by the BMC to a co-operative Housing Society which after subdivision of the plots allotted the same to its members. The 9 original members to whom were allotted the plots on which the suit building is constructed transferred the same to the said Ramakant Desai. Ramakant Desai in turn became a member of the said society. The members constructed buildings having tenements which were leased out by them to various tenants such as the petitioner. There is no dispute that since inception the petitioners had admitted and acknowledged the fact that the respondents were their landlords. The plans for the construction of the said buildings had been sanctioned by the BMC. That the plans may have been submitted in the name of the society makes no difference. The BMC has never during the past over 50 years contended that the constructions were in the absence of an agreement. The fact that a formal lease has not been executed will also not make any difference for it is not a case where a lease was not agreed to be created. Further for the purpose of section 4(4)(a) even an agreement would suffice. Section 4(4)(a) does not mandate only a written agreement. Thus even assuming that the observation in the impugned judgment that the lease was granted by the BMC to the promoters of the said Housing Society is incorrect the fact 10 remains that it cannot be said that the buildings were constructed unauthorisedly and without any agreement being in existence. 10. Mr. Dhakephalkar, the learned senior counsel appearing on behalf of the respondents questioned the correctness of the judgment in the case of ZUNSHI versus TUKARAM. Apart from the fact that the judgment is binding on me it is not necessary for me to consider these submissions in this regard considering the view that I have taken namely that the judgment does not apply to the facts of this case. 11. In the circumstances, the Civil Revision Application is dismissed. The time to vacate is extended upto 31.8.2008 subject to the Applicant filing the usual undertakings including an undertaking to hand over quite, vacant and peaceful possession on the expiry of the term subject to any orders of the Supreme Court.