1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 1317 OF 2010 Bharatmata Cinema .. Petitioner Vs. National Textile Corp. Ltd. & Anr. .. Respondents Mr. K. P. Jain with Mr. Nirade Lapashiya i/b M/s. Niranjan & Co. for the Petitioner. Mr. A. J. Rana Sr. Counsel with Mrs. M. H. Doshi for Respondent No.1. CORAM : MRS. R. S. DALVI, J. Date : 22nd February, 2010. P.C. 1. The petitioner has challenged the order of the learned Principal Judge of City Civil Court dated 07.01.2010 dismissing the appeal filed against the order of the Estate Manager declaring the petitioner as an unauthorized occupant and evicting him under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 2. The public premises was initially leased by the E.D. Sasoon United Mills Limited which is taken over by respondent No.1 for the period of 10 years on a monthly 2 rent of Rs.750/- to the predecessor-in-title of the petitioner on 02.09.1940 as lessees. There are specifically 9 covenants which were required to be followed by the lessees. 3. The lessees executed a sublease with the petitioner for a monthly rent of Rs.1400/- after about a year, on 30.10.1941. The petitioner also similarly covenanted to the lessees. The sub-lease was for the entire period of lease excepting the last three days. The petitioners were “to have and to hold” the premises for such period. The lease deed and the sublease are identical including the covenant No.7 with regard to the requirement of obtaining the consent in writing of the principal lessors for any assignment of the premises. The lessees as the sub-lessors therein were to allow the petitioner to hold and enjoy the demised premises without any interruption during the entire period of the sublease (which was only 3 days short of the period of the original lease). Further the premises was allowed to be used for a theater by the petitioner under covenant No.6 as much as it was allowed to be used by their lessees themselves under that covenant. There was, therefore, a clear intention 3 of the lessee and the petitioner that the petitioner was to have full and uninterrupted use of the premises to carry on business of its own and was in exclusive possession thereof, with the lessee retaining no control over the premises. It would, therefore, amount to assigning the premises as well as parting with its possession contrary to the terms of the lease. The sub-lease is in essence an assignment itself. 4. The assignment was to require the consent of the landlord under the original leease. No such consent was obtained. The petitioner contends that it was not required because the petitioner entered into a sublease and not an assignment. The petitioner has relied upon a letter showing that no consent would be required for “any arrangement” that the lessees would wish to make with any party. 5. The letter in reply to which this letter is relied upon by the petitioner is not produced as the lessors are stated to have expired. That letter would show the desired arrangement. Soon after that letter, the sublease is entered 4 into. It is in the nature of an assignment. A sublease is not a mere arrangement. 6. During the pendency of the lease there have been notices to quit. However, the petitioner continued as statutory tenant. The notice to show cause has been issued in May, 1989. The petitioner must show cause as to how and why it is not in unauthorized use of the respondents’ premises. In effect, the petitioner must show how they have not been assigned the premises contrary to the terms of the lease. That is not shown. 7. The petitioner relies upon Government Resolution dated 30th May, 2002 setting out the parameters for action under the P. P. Act. The petitioner falls squarely under clause 2 (i) thereof as sublessees. The petitioner would be ineligible to occupy the premises thereunder. It is also contended that the notice could not have been issued for commercial purpose to accommodate the employees of the 1st respondent under the aforesaid resolution. There is nothing produced to show any act to accommodate any 5 employee. The 1st respondent’s later transaction with regard to their own property cannot be questioned by the petitioner. It may be mentioned that the resolution merely seeks to curtail arbitrary use of powers to evict genuine tenants. The petitioner has not shown that it was a genuine tenant for want of the consent of the principal lessors to assign the premises. 8. The Learned Principal Judge in the impugned order has considered all of these facts. 9. The petition lacks bonafides. Hence, it is dismissed. 10. The protection granted by the learned Principal Judge of City Civil Court shall continue to four weeks. (R. S. DALVI, J.)