1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1097 OF 2008 WITH WRIT PETITION N0.1125 OF 2008 WITH WRIT PETITION NO.1144 OF 2008 The Hindustan Mineral Products Co.Pvt.Ltd. .. Petitioner Versus The Board of Trustees of the Port of Mumbai .. Respondent Mr.A.Y.Sakhare, Senior Advocate with Mrs.Shamima Taly and Ms.Smruti Chokhawala i/b.S.Mohamedbhai & Co. for petitioners Mr.U.J.Makhija with A.A.Siddiquie i/b. M.V.Kini & Co. for respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st February 2008 P.C. . In these petitions while challenging the orders passed by the Courts below, the petitioner original defendant has raised three fold 2 contentions. 2. Before setting out the same, it would be convenient to refer to some basic facts. The original plaintiff is the Mumbai Port Trust. It filed subject suits for eviction and possession against the original defendant petitioner herein on the ground that the right to occupy the suit property has been terminated by a notice to quit issued under section 106 of the Transfer of Property Act, 1982 (for short T.P.Act). There being no compliance with the requisitions contained therein and the possession of the immovable property being not handed over, it was compelled to file suit in Small Causes Court invoking section 41 of the Presidency Small Causes Court Act, 1882. 3. In the second petition, the trial court dismissed the suit of Port Trust but that judgement and decree has been reversed by the 3 lower appellate court. Resultantly, all suits are decreed and petitioner defendant is directed to hand over vacant and peaceful possession of the immovable properties involved therein. 4. In the third petition the the suit was decreed by the trial court and the appeal preferred by the original defendant - petitioner has also been dismissed. 5. Aggrieved by these orders, these petitions under Article 227 of the Constitution of India have been filed. 6. Mr.Sakhare, learned Senior Counsel appearing for petitioners firstly contended that the notice to quit which was issued by the Port Trust calling upon the petitioners to vacate and hand over possession of the suit premises is invalid and could not have been made the basis for filing the suits for eviction, inasmuch as, 4 the Port Trust is a public body and all its actions including putting an end to the rights of the tenants and occupants should be in conformity with the mandate of reasonableness and non-arbitrariness enshrined by Article 14 of the Constitution of India. He submits that absence of any ground or reason would vitiate these notices. Assuming without admitting that the notices are not invalid and vitiated as contended but could have formed basis for the suit for eviction, yet, the plaint allegations proceed upon the basis that the tenancy has been terminated because the Port Trust requires the land in question for a project or purpose set out in the plaint. He submits that during the course of evidence and trial, the Port Trust came out with a totally different version with regard to its need and requirement. He submits that there is variance between the pleadings and the proof. He submits that all evidence, foundation of which is not laid in the pleadings is irrelevant and 5 should be omitted from consideration. In such circumstances, the order of the lower appellate court relying upon notice to quit and the evidence led at the trial is ex facie vitiated and deserves to be quashed and set aside. He lastly submits that the Port Trust has set out that the lands which are required for the use of the Port Trust and further for the purpose indicated in the master plan. However, the plots which are subject matter of the suit have not been included in the master plan of 1992 which came to be modified later on. Inviting my attention to the resolution of the Trustees, copy of which was produced on record before the courts below, Mr.Sakhare submits that the Master Plan is not the one which was referred to during the course of trial. That apart, the lands being not included in the said master plan, the action of eviction is vitiated as being completely arbitrary, unreasonable unjust and unfair. 6 7. In support of his above submissions Mr.Sakhare has relied upon following decisions:- (i) (2004) 3 S.C.C. 214 (Jamshed Hormisji Wadia Vs. B.P.T (ii) (1989) 3 S.C.C. 296 (Dwarkadas Marfatia Vs. B.P.T.) (iii) 1995 Supp (4) S.C.C. 422 (Syed And Company & Ors. Vs. State of Jammu & Kashmir & Ors. (iv) (2003) 10 S.C.C. 653 (Rajgopal (Dead) by Lrs. Vs. Kishan Gopal & Anr. 8. Mr.Makhija learned Counsel appearing for original plaintiff - respondent Port Trust supports the impugned orders and points out that courts below were right in relying upon the master plan inasmuch as the land user was decided 7 earlier. It is not as if that the petitioner is taken by surprise inasmuch as in the plaint it was specified that the lands are required for the use of Port Trust. The need is merely elaborated and explained by leading evidence. It is not as if the need or the requirement has been urged as an after thought. This is not a case where, for some how or the other evicting the tenant that the Port Trust has resorted to filing of suits for their eviction. He submits that mandate of Article 14 has also been considered. It grants some flexibility to the public bodies like respondents who could arrange their own affairs. The courts below have rightly refused to interfere and substitute their own views in the matter. He relies upon settled principle that notice to quit under section 106 is not vitiated merely by non mention of reasons. In such circumstances, he submits that the petitions are devoid of any merits and deserve to be dismissed. 8 9. The basic facts are not in dispute. There is no question of dispute being raised with regard to issuance or receipt of notice as it is an admitted fact that a notice to quit was served, duly received and replied. The suit was filed, written statements were filed in answer thereto and evidence was led after necessary issues were drawn. 10. There is a concurrent finding with regard to legality and validity of quit notice. Relying upon a decision of Jivandas Vs. Life Insurance Corporation of India, reported in 1995 (1) BCR 530, the courts below have held that no grounds are required to be set out in the notice to quit under section 106 of the T.P.Act. Merely because landlord happened to be a public body does not make any difference to this legal position. While it is true that in the case of Dwarkadas Marfatia Vs.Board of Trustees of Port of Bombay, reported A.I.R. 1989 S.C. 1642 (1989) 3 S.C.C. 9 296, the Supreme Court has observed that even in matters of eviction of tenants, the actions of public bodies can be scrutinised on the touchstone of Article 14 of the Constitution of India, yet, in the facts and circumstances of this case, I am unable to accept the submission of Mr.Sakhare that the action of eviction is arbitrary. The courts below have referred to the notice to quit and the fact that the same validly terminates the rights of the petitioner. Further, the suit premises fall in the Industrial zone. The master plan was finalised in the year 1994 and what is placed before the Court is particulars and substantiation of the requirement stipulated in the plaint. The plaint allegations are perused by me. In para 4 of the plaint, the plaintiff/BPT has urged that the premises are required for speedy implementation of containerisation and development scheme on the Manganese ore depot. It is not as if the pleadings and depositions or documentary evidence 10 is at complete variance. This is not a case where notice to quit having been made foundation of the plaint and which notice not setting out any reasons or grounds that the plaint cannot set out the same as well. Assuming that Article 14 and the mandate flowing therefrom requires the Port Trust to act in a fair and reasonable manner, even then, when the allegations refer to the requirement, the same is merely elaborated and exemplified during the course of evidence. This is not a case of variance between pleadings and proof. The decision of the Supreme Court relied upon by Mr.Sakhare is clearly distinguishable. In that case upon facts the Supreme Court noticed that all evidence was in complete variance with the pleading and, therefore, must not be considered. Such is not the case here and applicability of the principle laid down by the Supreme Court would depend upon the facts and circumstances of each case. 11 11. In the appellate order, in W.P.1097 of 2008, the decision in Dwarkadas case has been extensively referred to by the appellate bench in paras 21 and 22 of the order. The master plan and Trust’s resolution has been referred to on 10th August 1999, board meeting was convened and three plots bearing Nos. 26, 27 and 28 of Mazgaon Sewree reclamation were included in the master plan. The said plan has not been challenged. It is in the backdrop of these facts and circumstances that in para 23 the point for determination as to whether the suit for eviction could be said to be an action against public interest or unjust and unreasonable has been answered. The lower appellate court has referred to the resolution and other necessary documents and held that the action is in public interest and not violative of Article 14 of the Constitution. 12. This Court is not a court where all these 12 factual materials can be re-appreciated and/or re-appraised. In fact, such findings are binding on this Court unless they are demonstrated to be wholly perverse. In the facts and circumstances of the present case, after referring to the quit notice, plaint allegations, material produced and averments in the written statement, the courts below have held that respondent plaintiff has proved that the tenancy has been terminated validly and that it is entitled to a decree for possession. 13. In my view, it is not possible to accept the argument of Mr.Sakhare that Article 14 has been violated in any manner. This is not a case where there is complete prohibition in law for initiation of action. Merely because the suit was pending and the judgement and decree of the lower appellate court has been pronounced after lapse of time, does not mean that the requirement of Port Trust is not genuine or bonafide. 13 Assuming that such a requirement is to be fulfilled, yet, in the peculiar facts of this case, materials produced proving such requirement, this is not a fit case to interfere under Article 227 of the Constitution of India. Petition dismissed. (S.C.Dharmadhikari, J)