- 1 - group1203 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1203 OF 2010 Xerxis Daruwala .. Petitioner vs 1.The Board of Trustees of Port of Bombay & ors. .. Respondents with WRIT PETITION NO.1591 OF 2010 Rex Transport Co .. Petitioner vs 1.The Board of Trustees of Port of Bombay & ors .. Respondents with WRIT PETITION NO.1596 OF 2010 Tulsidas Khimji Pvt. Ltd .. Petitioner vs 1.The Board of Trustees of the Port of Bombay & ors.Respondents with WRIT PETITION NO.1597 OF 2010 Nathumal Navalrai .. Petitioner vs - 2 - group1203 The Board of Trustees of Port of Bombay & ors ..Respondents with WRIT PETITION NO. 1784 OF 2010 Groversons Agencies .. Petitioner vs 1. The Board of Trustees of Port of Bombay & ors .. Respondents with WRIT PETITION NO. 1592 OF 2010 Chhotlal Keshavjee Shah & sons.Petitioner vs The Board of Trustees of Port of Bombay & ors . Respondents with WRIT PETITION NO.1668 OF 2010 Alka Hiwale Western Laundry ..Petitioner vs 1.The Board of Trustees of Port of Bombay & ors . Respondents with WRIT PETITION NO.1157 OF 2010 Nathuni Harihar Sha .. Petitioner vs 1. The Board of Trustees of Port - 3 - group1203 of Bombay & ors .. Respondents with WRIT PETITION NO. 1202 of 2010 H.Mangaldas & Co .. Petitioner vs The Board of Trustees of Port of Bombay & ors .. Respondents with WRIT PETITION NO. 1783 OF 2010 Virji Deshar Karia .. Petitioner vs The Board of Trustees of Port of Bombay & ors .. Respondents With WRIT PETITION NO.1792 of 2010 Ganpat Oomajee & sons .. Petitioner vs 1.The Board of Trustees of Port of Bombay & ors .. Respondents with WRIT PETITION NO. 2024 of 2010 S.L.Acharekar .. Petitioner vs The Bombay of Trustees of Port of Bombay & ors ..Respondents - 4 - group1203 with WRIT PETITION NO.1667 OF 2010 Bharat Doonersi Gada Lakhamsi Thaver Gada . Petitioners vs 1.The Board of Trustees of Port of Bombay & ors ..Respondents with WRIT PETITION NO. 1601 OF 2010 Ambalal Valji Patel .. Petitioner VS The Board of Trustees of Port of Bombay & ors .. Respondents with WRIT PETITION NO.2111 OF 2010 Harmann Joseph Vincent .. Petitioner vs The Board of Trustees of Port of Bombay & ors .. Respondents Mr.J.Reis with Mr.Y.A.Chaudhary i.b. Mr.Kunal Cheema for Petitioner Mr.U.J.Makhija i.b. Motiwalla & Co for Respondent no.1 Mr.Shardul Singh with Ms Malvika Bakshi i.b Dunmorr Sett for Respondent nos. 3 to 5. - 5 - group1203 COMMON ORDER CORAM: D.K.DESHMUKH & N.D.DESHPANDE, JJ DATE: 11th January,2011 P.C.(Per D.K.Deshmukh,J) 1. By this petition, the Petitioner challenges the order passed by the City Civil Court, Bombay in Misc.Appeal No.120 of 2009 dated 17th November,2009. 2. The relevant facts are that the Bombay Port Trust owns the land. The land was granted on lease to the respondent nos. 3 to 6. It is alleged that they constructed a building thereon and the present petitioners are lessee in that building. The trust as a landlord terminated the tenancy of the lessee by notice dated 27th April 2005. Those proceedings were taken out against the lessors for eviction under the Bombay Port - 6 - group1203 Trust Act before the Estate Officer. Against that order an appeal was filed. It appears that in the proceedings that were initiated against eight landlords because, the lessees like the petitioners were not joined as parties an application was made for joining them as parties. That application was rejected. Ultimately, the matter came to this Court and this Court held that the sub-lessees are not entitled to any notice. The principal ground on which eviction of the petitioners from the premises occupied by them is challenged is that the order of eviction should not have been made by the Estate Officer without issuing notice under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act to them. 3. Learned counsel appearing for the petitioner relied on the following judgments - 7 - group1203 in support of his submissions: 1. AIR 1985 BOMBAY 362 Ajit & ors vs. General Manager, BEST Undertaking of the Municipal Corporation of Greater Bombay & ors 2. 1991 (1) BOM.C.R. 102 M/s Prakash Warehousing Co.Vs.Municipal Corporation of Greater Bombay & anr 3. 1999 (3) CTC 588 (2000) MLJ 389 N.Govindan vs.The Chief Personnel Officer, I.C.F. Madras 38 & anr 4. AIR 1977 ORISSA 201 Sheik Khalilur Raheman vs Estate Officer, Bhubaneshwar & ors 5. AIR 1992 Bombay 375 Minoo Framroze Balsara vs The Union of India & ors 4. After having heard learned counsel for both the sides, we find no error in the order that has been passed by the City Civil Court. The petitioners are not in occupation of the premises independently. They are claiming through the head tenants or lessees whose lease has been terminated - 8 - group1203 and an order of eviction has been made against them. The order of eviction made against the head lessees is binding on the petitioner. In our opinion, therefore, no exception can be taken to the order passed by the City Civil Court. In so far as the judgments relied by learned counsel for the petitioner are concerned, the first judgment referred to above is a judgment of a learned Single Judge of this Court which considers the provisions of the Bombay Municipal Corporation Act and what is observed in para 13 of that judgment, really goes against the petitioner. The learned Single Judge of this Court has held that in order to be entitled to notice of eviction under the provisions of the Bombay Municipal Corporation Act persons must claim independent right. 5. In so far as judgment in the case of - 9 - group1203 M/s Prakash Warehouse Co. is concerned that judgment is not at all relevant because, in that case the order of eviction was made under the provisions of the Bombay Municipal Corporation Act on the ground of illegal subletting. 6. In so far as judgment of learned single Judge of Madras High Court in N.Govindan s is concerned, that judgment is also not relevant because, in that case the petitioner was actually given notice under the Act. 7. In so far as the judgment of the division bench of Orissa High Court is concerned, that judgment turns entirely on the provisions of section 4 of section 4 of the Public Premises Eviction Act which has been repealed and is no longer in - 10 - group1203 force. 8. In so far as the judgment of the Division Bench of this Court in Minoo Framroze Balsara s case referred to above is concerned, that judgment does not hold that every person who is in occupation of the premises whether it is independent or not is entitled to eviction notice. 9. We, thus find that none of the judgments cited and relied upon by learned counsel for the petitioners holds that a lessee of the head lessee whose lease has been terminated, cannot be evicted pursuant to the eviction order made against the head leasee. Therefore, in our opinion, no interference with the order impugned in the petition is called for. 10. However, we find that the petitioner is - 11 - group1203 a member of the association called The Nazir Building Tenants Association . That Association has made a representation dated 22nd June 2009 to the Chairman of the Bombay Port Trust requesting the Port Trust to accept the petitioners as direct tenants of the plots on their making necessary payments. They have relied on the judgments of the Supreme Court in the case of Jamshed Hormusji Wadia vs BPT & anr AIR 2004 SUPREME COURT 1815,learned counsel appearing for the petitioner has informed us that to this date there is no order communicated to the petitioners passed on this representation. In our opinion, considering that the petitioners appear to be in possession of the premises for a long time, and they are tenants of the building, which was put up on the land their representations deserves to be considered in accordance with law as also in view of the judgment of the Supreme court - 12 - group1203 in the aforesaid case i.e.Jamshed Hormusji Wadia vs BPT & anr AIR 2004 SUPREME COURT 1815. In our opinion, therefore following order would meet the ends of justice : 1. The Port Trust to consider the representation submitted by the association of the petitioners referred to above dated 22nd June, 2009in accordance with law and communicate its decision to the association as expeditiously as possible in any case within a period of six months from today. Till the decision on the representation is communicated and for a period of two weeks thereafter, in case the decision on the representation is adverse to the interest of the petitioners the petitioners shall not be actually evicted from the premises. 2. It is directed that the petitioners have - 13 - group1203 undertaken before us that till the representation is decided, the petitioners shall not transfer, alienate or part with possession of the premises. Learned counsel appearing for the petitioners have also informed us that within a period of one week from today, he will deliver a list of the members of the association to the advocate appearing for the Port Trust. Petitions are disposed of in above terms. D.K.Deshmukh, J N.D.Deshpande, J - 14 - group1203