1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1663 OF 1998 Didarali C. Kolsawalla ...Petitioner v/s The Board of Trustees of the Port of Bombay and others ...Respondents Mr Nikhil Sakhande with Mr Mayur Khandeparkar i/b M/s Kanga and Co. for Petitioner. Mr U.J. Makhija i/b M/s Mulla and Mulla and Craigie Blunt and Caroe for Respondents. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 20TH AUGUST 2009. 2 P.C. :- 1] The petitioner, by this petition, seeks a direction to the respondent  Bombay Port Trust to grant the petitioner s request contained in his representation dated 12th May 1998 and regularise the petitioner s occupancy of the premises bearing plot No.D/A, admeasuring 266.63 sq.mtrs., situated at Coal Depot, Mazgaon, Sewri Reclamation Estate, Sewri, Bombay 400 015. The facts that are relevant are that according to the petitioner, one Chandrashekhar Kale was the original tenant of the land. He, according to the petitioner, assigned his entire business alongwith stock-in-trade, goodwill and leasehold rights in favour of the petitioner. According to the petitioner, after assignment of the leasehold rights, the petitioner s father before his death and petitioner, after the death of his father, was paying rent. In 1986, the respondents filed a suit in the Small Causes Court, Bombay for a decree of eviction against the tenant - Kale. The suit filed for decree of eviction was decreed on 18th 3 March 1992. When the execution was taken out, it was obstructed by the petitioner. Therefore, obstructionist notice No.50 of 1993 was taken out by the landlord  Bombay Port Trust. The obstructionist notice was made absolute on 6th October 1995. According to the petitioner, during the pendency of the notice on 20th September 1993, the petitioner submitted an application for regularisation of his occupation and the original tenant had given his no objection. 2] After the obstructionist notice was made absolute, the decree was executed and possession of the land was taken by the Bombay Port Trust on 9th April 1996. The petitioner then took out miscellaneous notice No.159 of 1996 to set aside the ex-parte order passed on the obstructionist notice. On 25th April 1996, miscellaneous notice No.159 of 1996 was allowed and the ex-parte order dated 6th October 1995 was set aside. As a consequence, on 25th April 1996 possession of the premises was restored to the petitioner. Again, obstructionist 4 notice No.50 of 1993 came up for consideration before the Court and it was made absolute by order dated 12th August 1996 thus it was held that the Port Trust is entitled to possession even from the petitioner. The petitioner filed an appeal against that order. That appeal was dismissed on 3rd October 1997. It is common ground that the order passed by the Appeal Court dismissing the appeal was not challenged by the petitioner further and he accepted it. The consequence is that the decree of eviction passed against the original tenant binds the petitioner and he is liable to handover possession of the premises to the Bombay Port Trust. In this situation, the present petitioner has been filed in the year 1998 for grant of that piece of land to the petitioner. The petitioner in support of that claim relies on the judgment of the Supreme Court in the case of Jamshed Hormusji Wadia v/s Board of Trustees, Port of Mumbai and anr., reported in (2004) 3 SCC 214. According to the petitioner, following compromise formula which was approved by the Supreme Court in this judgment, the land should 5 be granted to the petitioner and his occupation should be regularised. The submission is opposed by the learned counsel appearing for Bombay Port Trust. According to him, the judgment of the Supreme Court in Jamshed Wadia s case is not applicable here because that judgment is delivered by the Supreme Court in the matters where Supreme Court was considering whether the increase in rent made by the Bombay Port Trust is valid or invalid. That judgment is not applicable to the case where there is a final decree of eviction obtained by the Bombay Port Trust against the tenant. The learned counsel submits that the whole attempt of the petitioner was to defeat the decree which is obtained by the Bombay Port Trust against the original tenant which binds the petitioner. 3] The learned counsel appearing for petitioner submitted before us that his possession of the premises is protected by the interim order passed by this Court. This Court had directed the Port Trust to decide the representation of the 6 petitioner. 4] After having heard learned counsel appearing for petitioner and after having gone through the record, we find that it is an admitted position that the Small Causes Court, Bombay has passed a decree of eviction against the predecessor- in-title of the petitioner. The Small Causes Court, Bombay, in proceedings initiated by the Port Trust as also held that in execution of that decree, the petitioner is liable to be evicted. That order has become final between the parties. Therefore, there is no question of the Port Trust granting the land to the petitioner as a lessee thereof. The tenancy of the lease had come to an end when the decree of eviction was passed, but because the order on the obstructionist notice was ex-parte order, possession was restored and the Port Trust has not been able to execute the final order since an interim order is passed by this Court in this petition where the petitioner seeks a direction for decision on the representation made by the petitioner for 7 regularisation of his occupation. In our opinion, directing the Port Trust to regularise the occupation of the petitioner s premises would result in frustrating the decree which is obtained by the Port Trust and which is biding on the petitioner. The petitioner cannot be allowed to remain in possession of the premises while the decree for eviction passed against the tenant and which is binding on him is intact. We also find that the compromise formula in the judgment of the Supreme Court in Jamshed Wadia s case is also not applicable in the present case because there is a decree of eviction obtained by the Port Trust against the tenant and that decree has been held to be binding by final order on the petitioner. The fact that because of some interim order passed by this Court, the possession of the petitioner was protected so far, would not entitle the petitioner to defeat the decree which has been obtained by the Port Trust. In our opinion, we will not be justified in exercising our extraordinary jurisdiction to frustrate the decree which is lawfully obtained by 8 the Port Trust. Taking overall view of the matter therefore, in our opinion, no relief can be granted to the petitioner in this petition. We put it to the learned counsel appearing for petitioner that as the petitioner is occupying the premises since long back, if he wants time to vacate the premises, that request can be considered on his agreeing to vacate the premises at the end of that period. The learned counsel stated before us that the petitioner does not want time to vacate the premises. Therefore, that relief also cannot be granted. Petition fails, rule is discharged with no order as to costs. 5] At the request of the leaned counsel appearing for petitioner, the respondents are directed not to put the decree in execution for a period of six weeks from today subject to the condition that within one week from today, the petitioner submits an undertaking in this Court in usual form which is given in matters under Bombay Rent Act to handover vacant and peaceful possession 9 to the Port Trust at the end of the period of six weeks in case, the petitioner fails to get any order setting aside or staying the execution of decree of eviction within the period of six weeks and also undertaking that within this period of six weeks, the petitioner will not part with possession or create third party right in the premises during this period. If the petitioner fails to submit the undertaking within the aforesaid period of one week, this order will not operate and the respondents shall be at liberty to proceed further. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G.KETKAR )