1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5080 OF 1991 Asgarally Fidaally Potia & Ors. .. Petitioners versus Municipal Corporation of Greater Bombay .. Respondents Mr.S.M.Khaire for the petitioners. CORAM : A.S.OKA, J. DATE : 11th January 2010. JUDGMENT: . The petitioners who are the original plaintiffs have challenged the judgment and order passed by the Appellate Bench of the Court of Small Causes by which a decree for possession passed in favour of the petitioners has been set aside. 2. According to the case of the petitioners, the trustees of the Byculla Club Mumbai were holding immovable admeasuring 1,23,596.48 sq.yards situated at Mumbai. By indenture of lease dated 10th July 1930, the trustees of the said club granted lease for a period of 999 years in favour of the original 1st defendant (Burmah-Shell Oil Storage and Distributing Company of India Limited). The area subject matter of lease was 1400 sq. yards situated in the South-West portion of the larger land and abutting Dr.Anandroa Road and Bellasis Road at Mumbai. Under the said indenture of lease, the 1st defendant paid to the trustees premium of Rs. 2 1,40,000/- and the annual rent was reserved at Re.1. By conveyance dated 9th December 1946, the original plaintiff Fidaally (predecessor of the petitioners) purchased area of 1,23,596.48 sq.yards including the said area of 1,400 sq. yards. The decree for possession in respect of the said plot admeasuring 1400 sq.yards (for short demised property) has been sought in the suit on the ground of unauthorised subletting or transfer contained in section 13(1)(e)of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as to the said Act). The allegation in the plaint is that a small portion admeasuring about 150 sq yards out of the demised property has been transferred by the original 1st defendant to the 2nd defendant Bombay Municipal Corporation (respondent herein) in the year 1955 or thereafter. It is stated that the said portion was purportedly acquired by the respondent herein. It is contended that the acquisition proceeding was concluded without notice to the predecessor of the petitioners who was the original owner. The second ground is that on or about the year 1964 there was a further acquisition of an area of about 850 sq yards which was purportedly acquired by the respondent for road widening. It is alleged in the plaint that both the said acquisition proceedings are contrary to law and the petitioners are not bound by the same. It is further alleged in the plaint that a notice of acquisition dated 1st December 1964 under section 4(1) of the Land Acquisition Act, 1984 has been received by the petitioners in which it is stated that the remaining land out of the demised land has been notified for acquisition for public purpose. 3. The original 1st defendant filed written statement contesting the suit filed by the petitioners. It was submitted that the true intention of the trustees of the Byculla Club 3 and the 1st defendant was that the 1st defendant should have an absolute interest in the demised land and therefore the indenture dated 30th July 1930 is not a lease as defined by section 105 of the Transfer of Property Act, 1882. It was contended that premium was paid by the 1st defendant to the trustees of the Byculla Club. It was contended that the Court of Small Causes had no jurisdiction to entertain and try the suit under section 28 of the said Act. The respondent herein filed written statement and contended that in accordance with the provisions of the Bombay Municipal Corporation Act, 1881, a part of the demised property has been acquired. It was contended that the suit was not maintainable against the respondent. 4. The Trial Court decreed the suit. The decree was passed on the ground incorporated in section 13(i)(e) of the said Act. It must be noted here that during the pendency of the suit, there was a settlement between the petitioners and the original 1st defendant. The consent terms were filed between the petitioner and the 1st defendant. In the consent terms it was noted that in view of the fact that the 2nd and 3rd defendants were in possession of the premises in the suit, the 1st defendants were not interested in contesting the claim for possession. The 1st defendant has, therefore, submitted to a decree for possession. 5. The Appellate Court in an appeal preferred by the respondent has interfered by holding that there was no landlord-tenant relationship between the petitioners and the 1st defendant and further holding that in any event ground under section 13(i)(e) was not established. 4 6. The learned counsel appearing for the petitioners submitted that the indenture of lease dated 10th April 1930 executed by the trustees of Byculla Club in favour of the original 1st defendant clearly proves the landlord-tenant relationship as the original plaintiff Fidaally has stepped into shoes of the trustees by virtue of Sale Deed dated 9th December 1946. He submitted that the finding recorded by the Appellate Court that the landlord-tenant relationship does not exist is erroneous. He submitted that there is no evidence of valid acquisition by the respondent and therefore it will have to be held that there was unauthorised transfer in favour of the respondent by the 1st defendants who were original tenants. He invited my attention to the amendment carried out to the petition and in particular prayer b1. 7. I have considered the submissions. Taking the averments made in the plaint as it is, the only allegation is that in the year 1955 and 1964 the respondent purported to acquire portions of the demise land for the purpose of road widening and that the said acquisition is illegal. It is not in dispute that acquisition was initiated by the respondent in accordance with the provisions of the Bombay Municipal Corporation Act, 1888. Thus, the respondent had taken recourse to compulsory acquisition for the public purpose. Thus, there is no transfer effected by the original 1st defendant in favour of the respondent in as much as the respondent purported to acquire the parts of the demised land for the public purpose. Therefore, ground under section 13(i)(e) of the said Act it is not at all established as the ground contemplates the tenant unlawfully subletting the demised property or unlawfully giving on licence the demised property or of part of it to a third party. Thus, on plain reading of the plaint, 5 no ground under the said Act for eviction was made out. 8. Apart from this, by prayer clause b1, the petitioners want this Court to issue a Writ of mandamus to the respondent enjoining the respondent to grant compensation to the petitioners in respect of the acquired lands. Apart from the fact that such a relief cannot be granted in a petition arising out of the suit under the said Act, the petitioners had admittedly filed a proceeding in that behalf in which they could not succeed. 9. In the circumstances, it is not necessary to consider the academic question regarding the existence of landlord-tenant relationship between the petitioners and the original 1st defendant. There is one more reason why the said issue regarding relationship of landlord and tenant between the petitioners and the 1st defendant cannot be decided. The finding of the Appellate Court is that the 1st defendant is not the tenant. The 1st defendant has not been made a party to the petition. The compromise recorded in the suit shows that the 1st defendant had submitted to the decree only to the extent of area of 1400 sq. yards. Therefore, in absence of the 1st defendant, the issue regarding existence of landlord-tenant relationship cannot be decided. 10. Hence, there is no merit in the petition. Petition is rejected. Rule is discharged with no orders as to costs. (A.S.OKA,J)