10-WP-1526-2011.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 1526 OF 2011

The Board of Trustees of the ]

Port of Mumbai ]

A Statutory Corporation ]

having its Registered office at ]

Vijay Deep, Shoorji Vallabhdas ]

Marg, Fort, Mumbai- 400 001. ] … Petitioner

V/s

1. Maharashtra Minerals ]

Corporation Limited, ]

Industrial Assurance Building, ]

5

th

floor, Churchgate, ]

Mumbai – 400 020. ]

2. M/s. Martek Engineering Works ]

817, Raheja Chambers, 213 ]

Nariman Point, Mumbai- 400 021. ]

3. The Estate Officer, ]

Mumbai Port Trust, 2

nd

floor, ]

Railway Manager’s Office Building]

Ramjibhai Kamani Road, Ballard ]

Estate, Mumbai – 400 001. ] … Respondents

CORAM : GAURI GODSE J

RESERVED ON : 26

th

MARCH 2026

PRONOUNCED ON : 8

th

JUNE 2026

Mr. Dhruva Gandhi a/w. Ms. Nina Motiwalla, Ms. Janhavi Kandekar,

1/17

Varsha

VARSHA

VIJAY

RAJGURU

Digitally signed by

VARSHA VIJAY

RAJGURU

Date: 2026.06.08

17:50:17 +0530

                                                                                 10-WP-1526-2011.doc

Ms. Anjali Kotecha i/b. Motiwalla and Co., for the Petitioner.

Mr. Rohan Savant, Mr. Aagam Mehta, Mr. Vipul Patel i/b. Haresh

Mehta and Co., for Respondent No.1.

Mr. V.Y. Sanglikar for Respondent No.2.

JUDGMENT :-

1. This petition is filed to challenge the order passed by the City

Civil Court, allowing the appeal filed by respondent no.1 against the

order of eviction and compensation passed by the Estate Officer of

the petitioner. The petitioner had applied for the eviction of the

respondents and compensation towards arrears of rent. The Estate

Officer had allowed the application for eviction against both the

respondents under Section 5(1) of the Public Premises(Eviction of

Unauthorised Occupants) Act (‘said Act’).

2. The Estate Officer had passed an order directing payment of

compensation under sub-section (2) and (2-A) of Section 7 of the said

Act. The respondents were held liable to pay arrears of

compensation, along with interest, from 1

st

October 1982 to 31

st

December 1991. The eviction order was passed on the ground that

respondent no.1 had unauthorisedly inducted respondent no.2 and

had carried out unauthorised construction. The order passed by the

Estate Officer was challenged by respondent no.1 by filing an appeal

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under Section 9 of the said Act. The proceedings were not attended

by respondents, though served, and therefore the order was passed

ex-parte. Respondent no.2 accepted the order and never challenged

the order of eviction or the order for payment of compensation.

3. Learned counsel for the petitioner submitted that the terms and

conditions for handing over the subject premises to respondent no.1

were recorded in a letter dated 6

th

March 1997. The terms and

conditions were accepted by respondent no.1 by a letter dated 10

th

April 1997. Accordingly, the petitioner signed a charge certificate and

the tenancy in respect of the subject plot commenced with effect from

1

st

April 1994. A lease document was not executed or registered

between the parties, and respondent no.1 continued as a monthly

tenant of the petitioner in respect of the subject premises.

Respondent no.1 had failed to pay the rent and service charges from

1

st

August 2000. Hence, a notice of demand was issued on 26

th

July

2003, and the tenancy of respondent no.1 was terminated.

Respondent No.1 unlawfully sublet the subject premises to

Respondent No. 2, who was occupying the premises when the

proceedings under the said Act were initiated. Thus, according to the

petitioner, respondents were in unauthorised occupation of the

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subject premises, and therefore, the petitioner was entitled to an

order of eviction and recovery of arrears by way of an order of

compensation.

4. The respondents were served, appeared before the Estate

Officer, and requested time to file a written statement. Though time

was given, no steps were taken to file the written statement and the

application before the Estate Officer proceeded ex-parte. The

application was finally argued before the Estate Officer on 8

th

March

2006. The Estate Officer issued a show-cause notice under Section

5(a) and 5(b); however, there was no response to the show-cause

notice. Accordingly, after hearing the petitioner and considering the

facts produced on record, the Estate Officer held that respondent

no.1 was in arrears of payment of monthly charges and

unauthorisedly let out the premises to respondent no.2. Hence, the

order of eviction was passed. Since the show-cause notice was not

responded to and nothing was produced on record to show that the

due amounts were paid, the Estate Officer passed a separate order

for payment of compensation under sub-section 2 and 2(a) of Section

7 of the said Act. The payment towards arrears was granted in terms

of the statement annexed to the order.

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5. Learned counsel for the petitioner relied upon the decision of

the Hon’ble Apex Court in the case of Anil Rishi Vs. Gurbaksh Singh

1

.

He submits that in the facts before the Hon’ble Apex Court,

respondent no.1 had claimed that respondent no.2 was in possession

with the consent of the owner. Hence, it was held that the burden was

upon respondent no.1 to prove that there was any consent or

approval by the owner for inducting respondent no.2. Learned

counsel for the petitioner therefore submitted that the respondents

failed to file any defence or led any evidence to discharge the burden

of any consent or deemed consent by the petitioner for inducting

respondent no.2. Hence, in the absence of any evidence to show that

the consent that inducted respondent no.2, the petitioner would be

entitled to terminate the tenancy of respondent no.1 and seek

eviction. The learned counsel for the petitioner relied upon the

decision of the Hon’ble Apex Court in the case of Rangammal Vs.

Kuppuswami and Anr

2

.

6. Respondent no.2 did not take steps to challenge the order.

However, respondent no.1, the original tenant, filed an appeal under

Section 9 of the said Act before the learned City Civil Court. Even in

1 (2006) 5 SCC 558

2 (2011) 12 SCC 220

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the said appeal, respondent no.1 produced nothing to show that there

were no arrears in payment of monthly charges. Despite giving

sufficient opportunity, respondent no.1 had remained absent before

the Estate Officer. Hence, the appellate court held that respondent

no.2 was willing to cooperate; however, did not get the opportunity to

produce evidence on record regarding payment of dues.

7. So far as allegations of sub-letting are concerned, the appellate

court held that the intention to assign or transfer was expressed by

respondent no.1. However, the petitioner failed to take any decision

on the request made by respondent no.1. Hence, it cannot be said

that respondent no.2 was in unauthorised occupation of the premises.

Thus, considering the contentions raised by respondent no.1 that

sufficient intimation was given for inducting respondent no.2, the

appellate court has reversed the eviction order and the order for

payment of compensation. However, in the meantime, the possession

was already handed over to the petitioner. Hence, the only issue to

be argued in the petition would pertain to the payment towards

arrears as contended by the respondents. He submits that since

there was no dispute that respondent no.2 was inducted by

respondent no.1, and no prior permission or any approval from the

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petitioner was taken, the eviction order was rightly passed by the

Estate Officer. According to the learned counsel for the petitioner,

there was no reason for the appellate court to reverse the Estate

Officer's order.

SUBMISSIONS ON BEHALF OF RESPONDENTS:

8. Learned counsel for respondent no.1 submitted that the terms

of the lease were exchanged between the parties. However, it was

due to the failure on the part of the petitioner that the lease

agreement was not registered. As agreed in the draft of the terms of

the lease exchanged between the parties, the charge certificate was

also issued by the petitioner, confirming the commencement of the

lease in favour of respondent no.1 with effect from 1

st

April 1994.

Respondent No.1 had issued a response on 12

th

August 2003,

informing sub-letting in favour of respondent no.2. Respondent no.1’s

letter was responded by the petitioner; however, there was no dispute

on the intimation of sub-letting. Hence, there was implied consent of

the petitioner. Respondent No. 2, therefore, cannot be held as a sub-

lessee or an unauthorised occupant of the subject premises. In view

of the response of the petitioner, no written consent would be

necessary.

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9. Learned counsel for respondent no.1, relied upon the decision

of the Hon’ble Apex Court in the case of Kamala Ranjan Roy Vs.

Baijnath Bajoria

3

, to support his submissions on the written consent.

So far as recovery of arrears is concerned, no evidence is led by the

petitioner to deny the contention of the reply received by respondent

no.1. Hence, the contents of the reply of respondent no.1 were rightly

considered by the learned appellate court for reversing the order of

payment of compensation. Though respondent no.1 had paid an

amount demanded by the petitioner, the Estate Officer granted an

order for payment of compensation as mentioned in the particulars of

the statement annexed to the order. In view of the payment already

made by respondent no.1, it cannot be held that respondent no.1 was

in unauthorised occupation on the ground of arrears. To support his

submissions, learned counsel for respondent no.1 relied upon the

decision of Ashis Kumar Ghosh Vs. The State of West Bengal and

Ors

4

.

10. Learned counsel for respondent no.1 submitted that the prayer

for recovering arrears could not have been granted as it was time-

barred. As per the notice of demand issued by the petitioner, the

3 1950 SCC 746

4 2009 SCC Online Cal 1948

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claim was from 1

st

October 1982. The statement annexed to the

Estate Officer’s order shows that the arrears mentioned in the

statement were from 1

st

October 1982 to 24

th

September 2003.

Hence, the prayer for recovering arrears beyond the period of three

years upto the date of filing of the application would be time-barred.

To support his submissions, learned counsel for respondent no.1

relied upon the decision of the Hon’ble Apex Court in the case of

New Delhi Municipal Committee Vs. Kalu Ram and Another

5

. On a

similar proposition learned counsel for respondent no.1 relied upon

the decision of the Hon’ble Apex Court in the case of New India

Assurance Company Ltd Vs. Nusli Neville Wadia and Anr

6

.

11. Learned counsel for respondent no.1 relied upon the letter

issued by respondent no.1 annexed to the appeal memo before the

Appellate Court. He relied upon the letter to show that the arrears

were already paid by respondent no.1. Hence, according to

respondent no.1, there was neither any unlawful sub-letting nor any

arrears of rent. Hence, the appeal court has rightly allowed the

appeal by setting aside the order passed by the Estate Officer.

12. Learned counsel appearing for respondent no.2 supported the

5 (1976) 3 SCC 407

6 (2008) 3 SCC 279

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submissions made on behalf of respondent no.1 and further

contended that a show-cause notice under Section 7(3) of the said

Act was never issued to respondent no.2 and therefore respondent

no.2 should be given an opportunity to contest the application on

merit.

SUBMISSIONS IN REJOINDER ON BEHALF OF PETITIONER:

13. In response to the submissions made on behalf of the

respondents, learned counsel for the petitioner submitted that even if

the arrears cannot be granted, damages as per the statement

annexed to the Estate Officer’s order were within the four corners of

law and therefore could not have been dealt with on merits by the

appellate court. Though the reply letter dated 12

th

August 2003 is

relied upon by respondent no.1 before the appellate court, the

contents of the same were not proved. The opportunity given to lead

evidence by the Estate Officer was never availed by the respondents.

Hence, the appeal court could not have considered the letter

produced for the first time in the appeal. The consent for inducting

respondent no.2 cannot be assumed in the absence of any specific

terms and conditions. Hence, the Estate Officer had rightly granted an

order of eviction and payment of compensation, which could not have

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been reversed by the appeal court by referring to the letter produced

by respondent no.1, for the first time before the appellate court. Even

the letter relied upon by respondent no.1 would show that there were

arrears, and the amount due and payable was never paid. Hence,

according to the learned counsel for the petitioner, there was no

reason for the appellate court to reverse the order of eviction and

compensation passed by the Estate Officer.

14. So far as respondent no.2 is concerned, the order of the Estate

Officer was ex-parte and it was never challenged by respondent no.2.

Hence, in the petition filed by the petitioner, i.e. the original applicant,

respondent no. 2’s request for granting any opportunity to contest the

application on the merits cannot be considered. So far as respondent

no.1 is concerned, the letter produced for the first time before the

appeal court could not have been the ground to reverse the Estate

Officer’s order.

CONSIDERATION OF SUBMISSIONS AND ANALYSIS:

15. I have perused the papers of the petition. It is undisputed that

the lease terms and conditions were exchanged between the parties,

but the documents were never executed and registered. However, the

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terms and conditions of the tenancy were accepted by the petitioner

and respondent no.1 and accordingly, the charge certificate was

issued by the petitioner. Thus, respondent no. 1 was liable to pay the

contractual charges for occupying the premises. As per the terms and

conditions agreed between the parties, respondent no.1 was not

entitled to induct the third party without the permission of the

petitioner. Admittedly, no such permission was ever granted by the

petitioner. The only implied consent relied upon by respondent no.1 is

the response letter issued by the petitioner. The intention of

respondent no.1 to induct respondent no.2 was communicated to the

petitioner. However, there was no consent issued by the petitioner.

Hence, there was no question of assuming that there was a deemed

consent on the part of the petitioner when, as per the terms and

conditions of the tenancy, Respondent No. 1 was under an obligation

to seek written consent for inducting a third party. The contention

raised by the petitioner before the Estate Officer was not refuted by

the respondents, as the proceedings were ex-parte against them.

Despite being given an opportunity, the respondents failed to file a

written statement or provide any evidence. Hence, the petitioner’s

contentions are rightly accepted by the Estate Officer by examining

the documents produced by the petitioner.

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16. So far as the grant of damages for arrears of monthly charges

is concerned, the statement is annexed to the Estate Officer’s order.

The statement refers to the arrears from 1

st

October 1982 to 24

th

September 2003. However, the amount which is granted is from 1

st

October 2002 to 21

st

September 2003, after deducting the amount

already paid. The appellate court has relied upon the reply allegedly

issued by respondent no.1 and produced for the first time before the

appellate court. Though a reply was taken on record, the contents of

the same were not proved by respondent no.1. Admittedly, no steps

have been taken by respondent no.1 to prove the contents of the

reply produced before the appellate court for the first time. Hence,

there was no reason for the appellate court to rely upon the reply for

reversing the order of the Estate Officer in the absence of any

pleadings and supporting evidence by respondent no.1 to prove the

contents of the said letter.

17. The reasons recorded in the impugned order by the appeal

court are based on the reply, for the first time produced before the

appellate court. The appellate court completely lost track of the fact

that respondent no.1 had not filed any pleadings before the Estate

Officer to rebut the petitioner’s contentions. Hence, there was no

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reason to reverse the Estate Officer’s order by referring to the

documents produced before the appellate court for the first time

without any supporting pleading. Hence, the reasons recorded in the

impugned order to reverse the Estate Officer’s order would not be

sustainable.

18. In Anil Rishi, the Apex Court held that the initial onus is always

on the plaintiff, and if he discharges that onus and makes out a case

which entitles him to a relief, the onus shifts to the defendant to prove

those circumstances, if any, which would disentitle the plaintiff to the

same. In Rangammal, the Apex Court held that it is a well-established

dictum of the Evidence Act that misplacing the burden of proof would

vitiate the judgment. It is further held that it is also undoubtedly true

that the burden of proof may not be of much consequence after both

parties lay evidence, but while appreciating the question of burden of

proof, misplacement of burden of proof on a particular party and

recording findings in a particular way definitely vitiates the judgment.

It is further held that a suit has to be tried on the basis of the

pleadings of the contesting parties, which are filed in the suit before

the trial court in the form of a plaint and written statement and the

nucleus of the case of the plaintiff and the contesting case of the

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defendant in the form of issues emerges out of that

. In the present

case, the appellate court has not only overlooked these legal

principles but also relied on a document in the absence of any

supporting pleading.

19. In

Kamala Ranjan Roy, the Apex Court has discussed the

words “such consent”, in the context of a covenant by the lessor that

he would not refuse consent except upon reasonable grounds in the

case of respectable or responsible person. It was held that those

words limit or qualify the lessee's covenant not to assign the demised

premises without the consent in writing of the lessor have the effect of

relieving the lessee from the burden of this covenant if the lessor

withholds his consent unreasonably in case of proposed assignment

to a respectable or responsible person. In the present case, these

legal principles would not assist the arguments of respondent no. 1,

as no such pleadings were filed to interpret the terms of the contract.

20. In New Delhi Municipal Committee, the Apex Court held that the

terms of Section 7 of the said Act provide a summary procedure for

the recovery of arrears of rent. It is held that under Section 7 the

Estate Officer may order any person who is in arrears of rent

“payable” in respect of any public premises to pay the same within

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such time and in such instalments as he may specify in the order;

however, before the order is made, a notice must be issued calling

upon the defaulter to show cause why such order should not be made

and, if he raised any objection, the Estate Officer must consider the

same and the evidence produced in support of it. In New India

Assurance Co., the issue was discussed and decided on the

procedure to be followed by the Estate Officer, in the facts of the case

where the opponent had filed pleadings. In view of the different facts

of the present case, and the well-settled legal principles in the

decisions of the Apex Court discussed above, it is not necessary to

discuss the decision of the Calcutta High Court relied upon by the

learned counsel for respondent no. 1. None of the decisions relied

upon by the learned counsel for respondent no. 1 are of any

assistance to the arguments made to support the impugned order.

21. In the present case, in the absence of any pleadings by the

respondents and of any evidence in rebuttal, no fault can be found

with the Estate Officer’s order passed relying upon the petitioner's

evidence. Hence, the approach of the appellate court is not

sustainable to reverse the Estate Officer’s order in the absence of

any pleading to support the letter produced before it and no proof of

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its contents.

22. Hence, for the reasons recorded above, this is a fit case to

interfere with the impugned order in the exercise of the Writ

Jurisdiction under Article 227 of the Constitution of India.

23. The writ petition is therefore allowed by passing the following

order:

I) The impugned order dated 10

th

August 2010, passed by the City

Civil Judge, Greater Bombay in Miscellaneous Appeal No. 129 of

2008 is quashed and set aside and the appeal is dismissed.

II) The order dated 28

th

March 2026, passed by the Estate Officer

in Case No. EO/E(99)(99-A)(99-B)(99-C) of 2003 is confirmed.

(GAURI GODSE, J.)

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