BOARD OF TRUSTEES OF THE PORT OF MUMBAIversusM/S BYRAMJEE JEEJEEBHOY PVT. LTD. & ANR.

                      [2011] 5 S.C.R. 157


   BOARD OF TRUSTEES OF THE PORT OF MUMBAI                           A
                                v.
    M/S BYRAMJEE JEEJEEBHOY PVT. LTD. &· ANR.
           (Civil Appeal No. 3147 of 2011)
                        APRIL 8, 2011°
                                                                     8
           [AFTAB ALAM AND R.M. LODHA, JJ.]

     Bombay Rent Act, 1947: ss.13(1)(e), 15(1), (2), 22 -
Unlawful sub-letting - Suit for eviction on the ground of
unlawful sub-letting by the tenant of leasehold property- Held:      C
Sub-letting, assignment, transfer of interest in any manner or
licencing made by the tenant after February 1, 1973 without
there being any sanctioning clause in the contract or without
any express consent of the landlord would constitute a ground
for eviction u/s. 13(1)(e) - In the instant case, the tenant made    D
a sub-lease and parted with the possession of suit land in
favour of sub-tenant - Sub-lease though executed on June
17, 1978 was made effective retrospectively from June 15,
1964 - Material on record showed that sub-tenant was in
possession of suit premises long before February 1, 1973 and         E
had continued to be in possession on that date - Subletting,
thus, clearly fell within the protective ambit of s. 15(2) - There
was no material change in the status of sub-tenant or in the
terms and conditions on which it was in possession of suit land
on February 1, 1973 or in the inter se relationship between          F
the tenant and sub-tenant - Execution of sub-lease on June
17, 1978 would not, therefore, militate against the protection
offered bys. 15(2) - Ground for eviction uls. 13(1)(e) not made
out - Eviction suit dismissed - Transfer of Property Act, 1882
- ss. 106, 108(j), 114A - Rent control and eviction.
                                                                     G
     The plaintiff-respondent no.1 was the landlord of the
suit premises. The defendant no.1-appellant trustee was
the tenant in the suit premises. The plaintiff filed a suit for

                               157                                   H
    158     SUPREME COURT REPORTS             [2011] 5 S.C.R.


A eviction against defendant no.1. Later on by way of
  amendment, defendant no.2 was joined in as the sub·
  tenant under the defendant no.1. In the suit, plaintiff
  averred that the suit land was given to defendant no.1 on
  lease for 999 years by its predecessors-in-interest under
B a registered lease deed dated May 10, 1866. The plaintiff
  sought eviction of defendants from the suit premises on
  the grounds of breach of the terms and conditions of the
  said lease deed mainly the condition against assignment
  of any portion of the leasehold land to any third party.
c        The trial court decreed the suit holding that
    respondent no.1 had failed to establish the breach of any
    other terms of the lease but had successfully proved the
    breach of the covenant against assignment of the
    leasehold property to the third party. The trial court
D pointed out that under clause 4 of the lease deed,
    defendant no.1 was not supposed to part with
    possession of the leasehold or to induct any third person
    into the suit property unless it obtained a licence in
    writing from the lessor, the plaintiff and there was no
E · material to show that it had obtained any licence from the
    plaintiff before parting with ·possession of the leasehold
    in favour of defendant no.2, the sub-lessee. The trial court
    also observed that for inducting defendant no.2 into the
    suit premises, defendant no.1 had charged compensation
F higher than the rent/compensation it paid to the plaintiff
    and, therefore, the act of defendant no.1 was contrary to
    clause 4 of the original lease deed and defendant no.1
    was guilty of committing its breach. The trial court also
    upheld the validity of the notice issued by the plaintiff to
G defendant no.1 determining and forfeiting the lease. It
    further held that the transaction between the plaintiff and
    defendant no.1 was covered by the provisions of the .
    Transfer of Property Act and, therefore, the suit could not
    be said to be barred by limitation. Dealing with the
H question of the decree being binding on defendant no.2,
 BOARD OF TRUSTEES OF tHE PORT OF MUMBAI v. 159
       BYRAMJEE JEEJEEBHOY PVT. LTD.        .
 the trial court observed that once it was held that the sub-   A
 lease created in favour of defendant no.2 was unlawful
 and illegal, the decree of eviction passed against the
 lessee would fully bind the sub-lessee.

      The appellate court dismissed the appeals filed by
 defendant nos.1 and 2. The High Court affirmed the             8
 findings of the courts below. The instant appeals were
 filed challenging the order of the High Court.

     Allowing the appeals, the Court

      HELD: 1. The instant case proceeded on a
                                                                c
 completely wrong course. The suit was adjudicated on
 by the courts, right up to the High Court on the basis of
 the provisions of the Transfer of Property Act. The
 provisions of law that must actually determine the rights
                                                             0
 and liabilities of the parties did not find mention in the
 pleadings of the parties or even the judgments of the
 courts. In the plaint,. at one place it was stated that for
 committing breach of the terms and conditions of the
 lease the defendants had lost the protection of. the
 Bombay Rent Act. Further, for invoking the jurisdiction E
 of the Small Causes Court, it was stated in the plaint that
 the suit was for recovery of possession of land situated
 at Bombay to which the Bombay Rent Act was
 applicable. Beyond this there was no reference to the
 provisions of the Bombay Rent Act. The three courts F
 below discussed sections 106, 108 (j) and 114A of the
 Transfer of Property Act but there was hardly any
 reference to the provisions of the Bombay ~ent Act. It
 would appear that the provisions of the Bombay Rent Act
 which have a direct bearing on the case were completely G
 overlooked by the three courts. From the judgment of the
nrs1 appellate court it indeed appeared that defendant
 no.2 had sought the protection of section 15(2) of the
 Bombay Rent Act but the court brushed aside the
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    160     SUPREME COURT REPORTS             [2011] 5 S.C.R.

A submission observing that since the suit premises
  belonged to defendant no.1, which was a local authority
  and since defendant no.2 was the lessee under defendant
  no.1, the provisions of the Bombay Rent Act would not
  be applicable and the defendant no.2 was not entitled to
B the protection of section 15(2) of that Act. The appellate
  court clearly failed to appreciate the way the provision of
  section 15 along with some other provisions of the Act
  applied to the case set up by the three parties to the suit.
  [Para 15] [174-G-H; 175-A-E]

C         2. At the material time the relationship between the
    landlord, tenant and sub-tenant was regulated and fully
    governed by the Bombay Rent Act, 1947 (which came
    into force on January 19, 1948 and expired on March 31,
    2000 when it was replaced by the Maharashtra Rent
D   Control Act 1999). The preamble to the Act described it
    as an Act to amend and consolidate the law relating to
    the control of rents and repairs of certain premises, of
    rates of hotels and lodging house and of evictions and
    also to control the charges for licence of premises, etc.
E   It was not denied that the plaintiff was a "landlord" as
    defined in section 5(3) and the suit land "premises" as
    defined in section 5(8) of the Actto mean "any land not
    being used for agricultural purposes". Section 13 of the
    Act had the marginal title, "When landlord may recover
F   possession" and enumerated the grounds on which
    alone a landlord would be entitled to recover possession
    of any premises. One of the grounds, enumerated in
    clause (e) of the section, was unlawful sub-letting by the
    tenant. Section 13(1)(e) provided that any unlawful sub-
G   letting by the tenant since January 19, 1948, the date of
    coming into operation of the Act or after February 1, 1973,
    the date of commencement of the Amendment Act
    (Maharashtra Act 17 of 1973) any licence given by the
    tenant unlawfully or any unlawful assignment or transfer
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 161
      BYRAMJEE JEEJEEBHOY PVT. LTD.
of his interest in any other manner in the whole or part       A
of the demised premises would make the tenant liable to
eviction. Section 15, in sub-section (1) then laid down
what would make the sub-letting, assignment, transfer or
licence unlawful. It said that any sub-letting or
assignment or transfer of his interest in any manner mad~      B
by the tenant after January 19, 1948 or any licence given
by him after February 1, 1973 for the whole or part of the
premises, unless sanctioned by the contract, would not
be lawful, notwithstanding anything contained in any law.
Section 15(1 ), thus, took away any protection given to the    c
tenant by any other law, e. g., section 108 (j) of the
Transfer of Property Act and prohibited him from any sub-
letting or licensing or assignment or transfer of his
interest in any other manner in the absence of a
sanctioning provision In the contract unless, of course,       D
the demised.premises came under the proviso to section
15(1 ). But it was no one's case here that the proviso to
section 15(1) had any application to the suit land. In light
of section 15(1), so much emphasis put on behalf of the
plaintiff on clause 4 of the lease deed dated May 10, 1886     E
would appear to be rather out of place because even
without clause 4, in the absence of a sanctioning clause
in the lease the subletting by the tenant would not be
lawful and would come within the mischief of section
13(1)(e). But then came section 15 (2) that removed.the
"unlawful" tag from any sub-letting, assignment, transfer      F
of interest in any other manner or licensing, though
contrary to sub-section (1), that were made before the 1st
day of February, 1973. The second part of section 15(2)
laid down that regardless of the prohibition in sub-
section (1) and notwithstanding anything contained in          G
any contract or in the judgment, decree or order of a court
a sub-lease, assignment or transfer of interest in any
other manner shall be deemed to be valid if. the person
in whose favour transfer is made entered into
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     162     SUPREME COURT REPORTS             (2011) 5 S.C.R.


 A possession of the demised property and continued to be
   in possession on February 1, 1973. The second part of
   section 15(2) overruled a contract by saying at the
   beginning, "Notwithstanding any thing contained in any
   contract... ". This means that clause 4 of the lease deed
 B would be ineffective and inoperative if the sub-lease lllade
   by defendant no.1 in favour of defendant no.2 otherwise
   conformed to the conditions laid down in section 'I 5(2)
   of Bombay Rent Act. More importantly, section 15(2)
   further provided that any sub-letting, assignment or
 c transfer of interest in any other manner made by the
   tenant that came within its protective ambit would save
   him from eviction under section 13(1)(e). Thus, any sub-
   letting, assignment, transfer of interestin any other
   manner or licensing made by the tenant after February
 0 1, 1973 without there being any sanctioning clause in the
   contract or without the express consent of the landlord
   would constitute a ground for eviction under section
   13(1)(e) of the Act. [Paras 16-19] [175-G-H; 176-A-C; 178-
   F-H; 179-A-H; 180-A-C]
 E       3. It was not disputed that defendant no.1 made a
    sub-lease and parted with the possession of the suit land
    in favour of defendant no.2. The plaintiff in its pleadings
    and evidence was completely silent on the question as
    to when did this transaction take place and when was
  F defendant no.2 inducted into the suit land. The trial court
    also did not advert to the said question. But, the first
    appellate court recorded a finding. It observed that
    defendant no.2 was in possession of the premises since
    prior to 1/2/1973. and therefore, they were protected. The
  G evidence on record showed that the fact of possession
    of the defendant no.2 in the premises prior to 1/2/1973
    was admitted. Having come to this finding, the appellate
    court misdirected itself by misconstruing the provision of
    section 15(2) of the Bombay Rent Act. But the finding of
. H fact that defendant no.2 came in possession of the suit
  BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 163
        BYRAMJEE JEEJEEBHOY PVT. LTD.
 land from before February 1, 1973 and continued to be          A
 in its possession on that date was very much there. The
 finding was arrived at for good reasons and it was
 supported by both oral and documentary evidences. A
 charge certificate issued by the Estate Manager's
 Department, Mumbai Port Trust dated February 1, 1963           B
 was on record. There were receipts of the years 1963 and
 1965 issued by the Mumbai Port Trust acknowledging the
 payment of rent from defendant no.2. More importantly
 the sub-lease deed that formed the sheet-anchor of the
 plaintiff's case, though executed on June 1, 1978, was         c
 made effective retrospectively from June 15, 1964. It came
 to an end on February 26, 1985. The materials on recor.d
 showed that defendant no.2 was in occupation of the suit
 land long before February 1, 1973 and had continued to
 be in its possession on that date. The sub-letting by          0
 defendant no.1 in favour of defendant no.2, thus, clearly
 fell within the protective ambit of section 15(2) of Bombay
 Rent Act. Section 15(2), apart from others uses the
 expression 'transfer of interest in any other manner'. It is
 sufficiently wide to include even an oral arrangement          E
 pursuant to which the sub-lessee might enter upon the
 land and continue in its possession. The initial induction
 of defendant no.2 on the suit land was covered by
 section 15(2) of the Act. [Paras 20 to 23 & 25) [180-D-H;
 181-A-8;182-C-E; 183-8-C]
                                                                F
        4. Section 22 provided for the landlord to have full
   information concerning the sub-lessee/licensee who
   might be in occupation of the demised premises on
   February 1, 1973, including the rent charged from him by
  ·the tenant. The provisions of section 22 clearly suggested   G
· ·that after the cut off date, i.e., February 1, 1973 there    _,'
   should be no material change, to the detriment of the
   landlord in the terms and conditions on which the sub-
   tenant was in possession of the demised premises' on
   that date and in case after that date, any material change   H
    164       SUPREME COURT REPORTS              (2011) 5 S.C.R.

A was brought about in the status of the sub-tenant, to the
  prejudice of the landlord that might not have the
  protection of section 15(2) but may come within the
  mischief of section 13(1)(e). In pith and substance, the
  sub-lease deed of 1978, was simply a formalization and
B continuation of the arrangement as existing between the
  defendants prior to February 1, 1973. There was no
  material change in the status of defendant no.2 or in the
  terms and conditions on which it was in possession of
  the suit land on February 1, 1973 or in the inter se
c relationship between the two defendants. The execution
  of the sub-lease on June 17, 1978 by defendant no.1 in
  favour defendant no.2 would not, therefore, militate
  against the protection offered by section 15(2) of the Act
  The execution of the lease would not constitute a ground
D for eviction against defendant no.1 in terms of section
  13(1)(e) of the Act. The judgments and orders passed by
  the High Court are not sustainable. [Paras 28, 29] (184·
  D-H; 185-A-C]

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 3147 of 2011 etc.

        From the Judgment & Order dated 1704.2008 of the High
    Court of Judicature at Bombay in Civil Revision Application No.
    183 of 2007.
F                                  WITH
    C.A. No. 3148 of 2011.
      Parag P. Tripathy, ASG, C.A. Sundaram, Buddy A.
G Ranganadhan, A.V. Rangam, Jay Savla, Sumit Ghosh, Rohini
  Musa, Bhargava V. Desai, Rahul Gupta, Nikhil Sharma, Zafar
  lnayat for the appearing parties.

          The Judgment of the Courtwas delivered by

H         AFTAB ALAM, J. 1. Leave granted.
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 165
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
      2. These two appeals, though coming from separate                              A
judgments and orders passed by the Bombay High Court, arise
from the same suit for eviction instituted by the landlord which
figures in both the appeals as respondent no.1. The appellant
in the appeal arising from SLP (C) No.19522 of 2008 is the
Board of Trustees of the Port of Mumbai (hereinafter "Mumbai                         B
 Port Trust"). It was the sole defendant, described as the tenant,
 in the suit for eviction as it was originally filed. Later on, by an
amendment M/s Wadi Sunder Cotton Press Company
 (hereinafter "WBC Company"), the appellant in the appeal
 arising from SLP (C) No.36246 of 2010, was joined in as                             c
defendant no.2 as the sub-tenant under the defendant, the
 Board of Trustees of the Port of Mumbai. From. that stage,
 Mumbai Port Trust, the principal tenant and WBC Company,
 the sub-tenant came to be arrayed in the suit as defendants 1
 & 2 respectively.                                                                   o
        3. The plaintiff respondent no.1 filed a suit in the court of
. Small Causes at Bombay registered as RAE suit no.83/197
 of 1993, seeking inter alia a decree of eviction, against the
 defendants from the suit land admeasuring about 3273.394
  square yards, situated at Santacruz Estate, Mazgaon, Bombay.                       E
 According to the plaintiff-respondent no.1, the suit land was
  given to defendant no.1 on lease for 999 (nine hundred and
  ninety nine) years by the plaintiff's predecessors-in-interest
  under a registered lease deed dated May 10, 18861 • In terms
  of the lease deed, defendant no.1, the lessee had the right to                     F
  renewal but it had no right to assign the leased out land to any
  third party. As a matter of fact, there was an express prohibition
  against assignment in clause 4 of the lease deed which is as

 1.   As a result of acquisition of a part of the leasehold lands and for other      G
      reasons, the 1986 lease was followed by subsequent leases in which the
      area of the lease hold lands was considerably reduced. But the stipulation
      against assisgnment on which the case of the plaintiff-respondent is based
      remained unaltered. In the pleadings of the parties and the judgments of
      the courts the reference is made to the above quoted clause in the 1886
      deed. It is, therefore, unnecessary to go into the details of the subsequent
      ~~.                                                                            H
    166        SUPREME COURT REPORTS               (2011) 5 S.C.R.


A   under:

          "4. That they the said Trustees their successors or assigns
          will not (subject never the less as hereinafter mentioned)
          assign the said premises or any part thereof without the
B         licence in writing of the lessors their heirs executors
          administrators assigns first obtained."

       [The only exception to the above prohibition was the right
  given to the lessee to part with and dedicate some portions,
  up to a specified limit, from the aggregate of the lands covered
C by the lease for public roads and ways with the consent of the
  lessors. But in that case the lessors agreed to give such
  consent upon the reasonable applications of the lessee from
  time to time and within the limit (prescribed under the lease).]

0      4. The plaintiffs sought eviction of the defendants on
  grounds of breach of the terms and conditions of the lease
  dated May 10, 1886, mainly the condition against assignment
  of any portion of the lease hold land to any third party. In
  paragraph 4 of the plaint as it was originally filed it was stated
E that the defendant had committed breach of several terms and
  conditions of the lease and had unlawfully and illegally parted
  with the possession of the lease hold property without any
  licence in writing from the lessor. It was further stated that by
  an advocate's notice dated December 7, 1991 the plaintiff had
F put on record the several acts of omission and commission by
  the defendant that were in breach of the terms and conditions
  of the lease and for that reason had determined and forfeited
  the lease. Despite the notice the defendant did not remedy but
  persisted in the breach of the terms and conditions of the lease.
  It had, therefore, lost the protection of the Bombay Rents, Hotel
G and Lodging House Rates Control Act, 1947 (for short "the
  Bombay .Rent Act") a·nd had made itself liable to quit the suit
  premises and hand over its vacant, peaceful possession to the
  plaintiff. It was further alleged in paragraph 7 of the plaint that
  in consideration of a large sum as rent/compensation the
H
 BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 167
 BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
 defendant had created sub-leases in favour of sub-lessees/                 A
 tenants and had unlawfully, clandestinely and surreptitiously
 parted with possession of the lease-hold land in favour of the
 sub-lessees/tenants. In the transaction, the lessee, defendant
 no.1, had made huge profits. It was, therefore, liable to eviction
 for committing breach of the covenant in the lease deed of May             B
 10, 1886. In paragraph 9 of the plaint, injunction was sought
 against the defendant restraining it from sub-letting and/or
 parting with the possession of the suit land in any manner
 whatsoever and in that connection it was once again stated that
 the defendant had no right to assign any part of the suit land             c
 without the licence in writing of the lessors. In paragraph 12 of
 the plaint it was stated that the suit was for recovery of
 possession of the suit land to which the Bombay Act, 1947 was
 applicable and the claim of the plaintiff fell within" section 28 of
 the Act. Hence, the court of Small Causes, Bombay, had the
                                                                            0
 exclusive jurisdiction to try the .suit.                      ·

         5. Later on, after the sub-lessee was joined in as the
   second defendant, paragraph 7A and 7B were added by an
   amendment in the plaint. In paragraph 7A, reiterating the earlier
   allegation it was said that in respect of the suit land, defendant       E
   no.1 had unlawfully created sub-lease in favour of defendant
   no.2 and had wrongfully inducted defendant no.2 into the suit
   land. Defendant no.1 had thereby committed breach of the
   lease and had also violated the provisions of the Transfer of
   Property Act, and also the terms of tenancy. In paragraph 78 it          F
   was submitted that the plaintiff was entitled to a decree of
.. eviction against defendant no.1 as it had unlawfully created sub-
   lease and/or given sub-tenancy and/or transferred its interest
   in the suit land to defendant .no.2 and defendant
                                                  .         ·no.2 was
   equally liable to be evicted and would be equally bound by the           G
   decree as it had· no independent right. title ·o~ interest in the suit
   land and it.had been unlawfully.and illegally inducted into the
   suit land.

       6.- Defendant no.1 in its written statement, denied having
                                                                            H
    168      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A committed any breach of the terms and conditions of the lease
    deed dated May 10, 1886. The defendant denied that it had
    unlawfully and illegally parted with possession of the property
    in breach of the covenant in the lease deed and/or in the
    manner as alleged by the plaintiff. In paragraph 14 of the written
B statement it was stated that the advocate's notice sent to the
    defendant at the instance of the plaintiff was quite invalid. In
    different paragraphs of the notice, the area of the lease hold
    lands was stated differently. The notice gave wrong description
    of the lease hold property; it was vague, unintelligible and
c suffered from serious legal and factual infirmities. It was not
    possible to act upon it or to even give any proper reply to it.
    On account of its vagueness it was not possible for the
  · defendant to know what was the breach alleged and whether it
    was capable of being remedied in terms of section 114-A of
    the Transfer of Property Act. The defendant denied that it had
0
    either surreptitiously or clandestinely parted with possession by
    creating sub-lease in respect of the leasehold land in favour of
    a third party in the manner as alleged by the plaintiff. The
    defendant further denied having demanded huge rent/
    compensation from the alleged sub-lessees in respect of the
E building and the suit land, making huge profits. The defendant
    denied any breach of clause 4 of the lease deed. According
    to the defendant, clause 4 of the lease deed enjoined against
    assignment. There was no covenant in the lease deed
    prohibiting sub-lease. The defendant stated that it had not
F "assigned" the premises or any part thereof as alleged by the
    plaintiff and had not committed any breach of clause 4 of the
    lease deed. The plaintiff's allegation was based on a
    misreading and misinterpretation of clause 4 of the lease deed.
    Reiterating that there was no assignment of the leasehold
G interest the defendant once again denied that it had committed
    any breach of clause 4 of the deed in the manner as alleged
    by the plaintiff. The defendant further stated that the plaint
    nowhere stated when or in whose favour the alleged breach
   was committed. The allegations made by the plaintiff were
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 169
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
imaginary and fanciful, the averments in the plaint were quite         A
vague and devoid of particulars and did not disclose the
precise breach of the lease of which it was being accused.

      7. After the impleadment of defendant no.2 in the suit,
defendant no.1 filed an additional written statement. In               B
paragraph 3 of the additional written statement, it took the plea
that defendant no.2 was neither a necessary party nor a proper
party to be joined in the suit and its addition had made the suit
liable to be dismissed for misjoinder of parties. In paragraph
4, in answer to paragraph 7A of the plaint, defendant no.1
denied that the sub-lease in respect of the suit land was created      C
unlawfully in favour of defendant no.2. It further denied that there
was any breach of the lease or any violation of the provisions
of the Transfer of Property Act. The defendant stated that no
agreement of terms of tenancy was executed and hence, there
was no question of violation of any terms of tenancy as alleged        D
by the plaintiff. In paragraph 5 of the additional written
statement, in answer to paragraph 7B of the plaint, defendant
no.1 denied that it had illegally and unlawfully created sub-lease
and/or given sub-tenancy and/or transferred its interest in the
suit land to defendant no.2. It denied that defendant no.2 was         E
an unlawful and illegal sub-lessee/licensee .

     . 8. Defendant No.2, Mis WBC Company, in its written
statement took the plea that the plaintiff's suit was barred by
limitation and it was further liable to be dismissed because the       F
plaintiff had not set out any cause of action against defendant
no.2. The second defendant denied that the sub-lease created
by defendant no.1 in its favour was unlawful or in breach of the
lease or in violation of the provisions of the Transfer of Property
Act and the terms of tenancy. The main thrust of the case of           G
the second defendant, however, was that if had been in physical
possession of the suit premises for several years prior to 1963
and this fact was fully within the knowledge of the r>laintiff. The
second defendant stated that in October, 1977 the suit
premises was inspected by a representative of the plaintiff            H
    170       SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A   along with an architect and even at that time, the answering
    defendant was found to be in physical possession of the suit
    premises and the fact was acknowledged in a letter of
    November 7, 1977, written at the instance of the plaintiff. The
    plaintiff was, therefore, fully aware that defendant no.2 was in
B   occupation of the suit. premises long before the filing of the suit.
    The suit was, thus, clearly barred by limitation. Giving reply to
    the statement made in paragraph 9 of the written statement the
    second defendant denied that the plaintiff was entitled to a
    decree of eviction against defendant no.1 for inducting the
c   answering defendant as a sub-lessee/sub-tenant into the suit
    land. The second defendant denied that it was an unlawful and
    illegal sub- lessee/licensee/inductee and it had no independent
    right, title or interest in the suit land and hence, it too would be
    bound by the decree against defendant no.1. In this connection,
    the second defendant further stated that by a registered lease
0
    deed dated June 17, 1978 executed by defendant no.1 an area
    of 4596.47sq.mts. (that included the suit land together with
    building(s) standing thereon) had been demised in its favour.
    The sub-lease was for the term of 20 years 8 months and 14
    days commencing from June 15, 1964 with the clear
E   acknowledgement that the sub-lessee (defendant no.2) was in
    occupation and possession of the demised property from that
    date. The second defendant further stated that even before the
    filing of the plaintiffs suit, defendant no.1 had filed LE. & C.
    suit no.271/309of1987 seeking its eviction from the demised
F   premises and the suit was pending before the same court, i.e.
    the court of Small Causes, Bombay. In paragraph 11 of the
    written statement, in answer to paragraph 12 of the plaint,
    defendant no.2 (quite strangely!) denied that the suit was
    between the landlord and tenant, relating to the possession of
G   the suit land to which the, Bombay Rent Act was applicable.

       9. On the basis of the pleadings ofthe parties, the trial
  court framed as many as 12 issues and later on, 3 additional
  issues. But of relevance for the present are issues 4, 5 and 7
H which are as under:
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 171
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
     4. Whether the plaintiffs prove that, the defendants have          A
     committed breaches of terms and conditions of lease as
     alleged in para 4 (a) to (d) of the plaint?

     5. Whether the plaintiffs prove that that they have validly
     determined and forfeited the lease by a notice dated 7th           8
     December 1991?
     7. Whether the defendants prove that the suit is barred by
     law of limitation?
Of the three additional issues, additional issue no.1 was allied        C
to issue no.4 and additional issue no.3 to issue no. 7 as quoted
above. Additional issue no.2 which was independent of the
earlier issues was as under:
     "2. Whether the defendant no.2 is bound by decree against
     the defendant no.1 ?"                                              D
     10. The trial court answered issue nos.4 and 5 and
additional issue nos.1 and 2 in the affirmative. And issue no.7
and additional issue no.3 in the negative. ·
     11. Discussing the question of breach of the terms and             E
conditions of the lease deed dated May 10, 1886 by defendant
no.1, the trial court held that the plaintiff had failed to establish
the breach of any other term of the lease but had successfully
proved the breach of the covenant against assignment of the
leasehold property to a third party. The trial court pointed out,       F
that under clause 4 of the lease deed defendant no.1 was not
supposed to part with possession of the leasehold or to induct
any third person into the suit property unless it obtained a
licence in writing from the lessor, the plaintiff. There was no
·material to show that it had obtained any licence from the             G
plaintiff before parting with possession of the leasehold in
favour of defendant no.2, the.sub-lessee. The trial court found
it was undeniable that defendant no.1 had inducted defendant
no.2 into the suit premises by executing a sub-lease on June
                                                                        H
    172      SUPREME COURT REPORTS               [2011] 5 S.C.R.


A  17, 1978 for a term of 20 years 8 months and 14 days. The
  only plea raised on behalf of the defendants was that defendant
  no.2 was inducted over the suit premises in full knowledge of
  the plaintiff and defendant no.2 was in possession of and
  hence, it could not be said that the induction of defendant no.2
B into the suit premises was illegal. The trial court also observed
  that for inducting defendant no.2 into the suit premises,
  defendant no.1 had charged compensation higher than the rent/
  compensation it paid to the plaintiff. The act of defendant no.1
  was, therefore, undoubtedly, contrary to clause 4 of the original
c lease deed and defendant no.1 was guilty of committing breach
  of the covenant as contained in clause 4 of the lease deed. The
  trial court also upheld the validity of the notice issued by the
  plaintiff to defendant no.1 determining and forfeiting the lease.
  It further held that the transaction between the plaintiff and
  defendant no.1 was covered by the provisions of the Transfer
0
  of Property Act and, therefore, by no stretch of imagination the
  suit could be said to be barred by limitation. Dealing with the
  question of the decree being binding on defendant no.2, the
  trial court observed that once it was held that the sub-lease
  created in favour of defendant no.2 was unlawful and illegal, the
E decree of eviction passed against the lessee would fully bind
  the sub-lessee. The trial court decreed the suit by judgment and
  order dated June 12, 2002.
       12. Against the judgment and order passed by the trial
F court, both defendant nos. 1 and 2 filed their separate appeals
  (no.741 and 742 of 2002 respectively). The appellate court
  formulated a number of points for its consideration of which
  point no.2 related to the breach of the terms and conditions of
  the lease by defendant no.1 and point nos.4 and 5 related to
G the protection that might be available to defendant no.2 under
  section 15(1) of the Bombay Rent Act, 1947 and whether
  defendant no.2 would be bound by the decree of eviction
  passed against defendant no.1. Dealing with the breach of the
  terms of the tenancy by defendant no.1, the appeal court held
  the evidence on record showed that there was no written
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 173
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
permission from the plaintiff to defendant no.1 for sub-letting          A
the lease hold in favour of defendant no.2 in the year 1978. The
appellate court observed that on behalf of the defendants, it was
sought to be shown that defendant no.2 was in possession of
the premises from before February 1, 1973, and, therefore, they
were protected by the provisions of Bombay Rent Act, 1947. It            B
went to the extent of saying that the evidence on record showed
that the possession of the suit premises by defendant no.2 from
before February 1, 1973 was admitted but since the premises
belonged to defendant no.1 which was a Local Authority, the
protection envisaged under the Bombay Rent Act, 1947 was                 c
not available to defendant no.2 and it, therefore, could not claim
protection under section 15(2) of the Act. In this connection, the
appellate court said as follows:
     "Evidence on record shows that the fact of possession of
     the Defendant No.2 in the premises prior to 1.2.1973 is             D
     admitted but when the premises belongs to the local
     authority i.e. the Defendant No.1 and Defendant No.2 is
     the lessee of the Defendant No.1, the provisions of the
     Bombay Rent Act, 1947 will not be applicable and,
     therefore, the Defendant No.2 are not entitled for protection       E
     of amendment of 1987 in Sec.15(2) of the Act. There is
     no dispute about the legal position that amended section
     15(2) gives protection to the unlawfu1 occupant who were
     in possession on 1.2.1973 but when the provisions of the
     said Act are not applicable to the sub-lease between the
                                                                         F
     Defendant No.1 and 2, there is no question of giving
     protection of the amended provisions of the Bombay Rent
     Act. When it is admitted that the premises are sub-let by
     Defendant No.1 to Defendant No.2 in the year 1978 and
     it is also admitted that there is no written permission
     granted by the Plaintiffs for sub-letting, it is clear cut breach   G
     of the terms and conditions of the lease agreement. After
     careful scrutiny of the evidence on record, we are of the
     view that Plaintiffs established sub-letting by Defendant
     No.1 to Defendant No.2 in the year 1978 without prior
                                                                         H
    174        SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A         permission in writing and, therefore, the Plaintiffs are
          entitled for a decree on the ground of breach of terms and
          conditions of the tenancy."
    In light of its findings, the appellate court dismissed both the
    appeals by judgment and order dated 31st March and April 1,
8   2004.
        13. Both, defendants 1 and 2 sought to challenge the
  orders passed by the Small Causes Court by filing civil
  revisions before the Bombay High Court. The two civil revisions
C were dealt with separately in the High Court. The civil revision
  filed by defendant no.1 (no.183 of 2007) was first dismissed
  by a reasoned order dated April 17, 2008 and later on the civil
  revision filed by defendant no.2 (no.21 of 2009) by order date
  October 29, 2010, primarily following the order passed in the
  case of the first defendant.
D
        14. In the case of the first defendant, the High Court
  affirmed the findings of the courts below that the execution of
  the sub-lease by defendant no 1 in favour of defendant no.2
  without obtaining the permission in writing from the plaintiff was
E in breach of clause 4 of the lease deed. The High Court also
  dealt with the plea of defendant no.1 based on section 114A
  of Transfer of Property Act, and held that the provision had no
  application to a case of sub-letting or under letting. It further held
  that the suit filed by defendant no.1 for the eviction of defendant
F no.2 would not remedy the breach committed by it, more so as
  at the time of hearing of the Civil Revision the suit still remained
  pending. On these findings, the High Court dismissed the civil
  revision.
       15. The strange thing about this case is the completely
G wrong course on which it has proceeded thus far. The suit was
  framed by the plaintiff and it was contested by the defendants
  and adjudicated on by the courts, right up to the High Court on
  the basis of the provisions of the Transfer of Property Act. The
  provisions of law that must actually determine the rights and
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 175
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB. ALAM, J.]
liabilities of the parties find no mention in the pleadings of the    A
parties or even the judgments of the courts. In the plaint, at one
place it is stated that for committing breach of the terms and
conditions of the lease the defendants had lost the protection
of the Bombay Rent Act. Further, for invoking the jurisdiction
of the Small Causes Court, it is stated in the plaint that the suit   B
was for recovery of possession of land situated at Bombay to
which the Bombay Rent Act is applicable. (Interestingly even
this statement made in the plaint is rather unmindfully denied
by defendant no.2 vide paragraph 11 of its written statement!).
 Beyond this there is no reference to the provisions of the           c
 Bombay Rent Act. In the three judgments of the courts there are
 discussions on sections 106, 108 0) and 114A of the Transfer
 of Property Act but there is hardly any reference to the
provisions of the Bombay Rent Act. It seems that the provisions
 of tfle Bombay Rent Act which have a direct bearing on the           D
case were completely overlooked by the three courts. From the
judgment of the first appellate court it indeed appears that
defendant no.2 had sought the protection of section 15(2) of
the Bombay Rent Act but the court brushed aside the
submission observing that since the suit premises belonged to         E
defendant no.1, Mumbai Port Trust, which is a local authority
 and since defendant no.2 was the lessee under defendant no.1,
 the provisions of the Bombay Rent Act would not be applicable
 and the second respondent was not entitled to the protection
 of section 15(2) of that Act. The appellate court clearly failed
 to appreciate the way the provision of section 15 along with         F
 some other provisions of the Actapplied to the case set up by
 the three parties to the suit.
     16. At the material time the relationship between the
landlord, tenant and sub-tenant was regulated and fully               G
governed by the Bombay Rent Act, 1947 (which came into
force on January 19, 1948 and expired on March 31, 2000
when it was replaced by the Maharashtra Rent Control Act
1999). The preamble to the Act described it as an Act to amend
                                                                      H
    176       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A and consolidate the .law relating to the control of rents and
  repairs of certain premises, of rates of hotels and lodging
  house and of evictions and· also to control the charges for
  licence of premises, etc. It is undeniable that the plaintiff is a
  "landlord" as defined in section 5(3) and the suit land
B "premises" as defined in section 5(8) of the Act to mean "any
  land not being used for agricultural purposes". Section 13 of
  the Act had the marginal title, "When landlord may recover
  possession" and enumerated the grounds on which alone a
  landlord would be entitled to recover possession of any
c premises. One of the grounds, enumerated in clause (e) of the
  section, was unlawful sub-letting by the tenant. Clause 13(1)(e)
  in so far as relevant for the present is as under:
          "13. When landlord may recover possession.
          (1 )Notwithstanding anything contained in this Act but
D
          subject to the provisions of sections 15 and 15A, a
          landlord shall be entitled to recover possession of any
          premises if the Court is satisfied-
                (a) xxxxxxx
E               (b) )()()()()()()(
                (c) xxxxxxx
                (d) xxxxxxx

F         (e) that the tenant has, since the coming into operation of
          this Act, unlawfully sub-let or after the date of
          commencement of the Bombay Rents, Hotel and Lodging
          House Rates Control (Amendment) Act, 1973, unlawfully
          given on licence, the whole or part of the premises or
G         assigned or transferred in any other manner his interest
          therein; or"
    Section 14 of the Act afforded protection to sub-tenants and
    licensees and provided as follows:

H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 177
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
   "14. Certain sub-tenants and licensees to become                  A
   tenant on determination of tenancy
   (1) When the interest of a tenant of any premises is
   determined for any reason, any sub-tenant to whom the
   premises or any part thereof have been lawfully sub-let           B
   before the 1st day of February 1973 shall subject to the
   provisions of this Act, be deemed to become the tenant
   of the landlord on the same terms and conditions as he
   would have held from the tenant, if the tenancy had
   continued.
                                                                     c
   (2) Where the interest of a licensor, who is a tenant of any
   premises is determined for any reason, the licensee, who
   by section 15A is deemed to be a tenant shall, subject to
   the provisions of this Act, be deemed to become the
   tenant of the landlord on the terms and conditions of the         0
   agreement consistent with the provisions of this Act."
   Then came section 15 which is reproduced below:
   "15. In absence of contract to the contrary, tenant not
   to sub-let or transfer or to give on licence.
                                                                     E
   (1) Notwithstanding anything contained in any law but
   subject to any contract to the contrary, it shall not be lawful
   after the coming into operation of this Act for any tenant
   to sub-let the whole or any part of the premises let to him
   or to assign or transfer in any other manner his interest         F
   therein and after the date of commencement of the
   Bombay Rents, Hotel and Lodging House Rates Control
   (Amendmeril) Act, 1973, for any tenant to give on licence
   the whole or part of such premises:
   Provided that the State Government may by notification in         G
   the Official Gazette, permit in any area the transfer of
   interest in premises held under such leases or class of
   leases or the giving on licence any premises or class of
   premises and no such extent as may be specified in the
   notification.                                                     H
    178        SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A         (2) The prohibition against the sub-letting of the whole or
          any part of the premises which have been let to any tenant,
          and against the assignment or transfer in any other manner
          of the interest of the tenant therein, contained in sub-
          section (1 ), shall, subject to the provisions of this sub-
B         section be deemed to have had no effect before the 1st
          day of February, 1973, in any area in which this Act was
          in operation before such commencement; and accordingly,
          notwithstanding anything contained in any contract or in the
          judgment, decree or order a Court, any such sub-lease,
c         assignment or transfer of any such purported sub-lease,
          assignment or transfer in favour of any person who has
          entered into possession, despite the prohibition in sub-
          section (1) as purported sub-lessee, assignee or
          transferee and has continued in a possession on the date
          aforesaid shall be deemed to be valid and effectual for all
D
          purposes, and any tenant who has sub-let any premises
          or part thereof, assigned or transferred any interest therein,
          shall not be liable to eviction under clause (e) of sub-
          section (1) of section 13.
E               The provisions aforesaid of this sub-section shall not
          affect in any manner the operation of sub-section (1) after
          the date aforesaid."
       17. It is important to clearly understand the interplay
F between sections 13(1)(e) and section 15 of the Act. Section
  13(1)(e) provided that any unlawful sub-letting by the tenant
  since January 19, 1948, the date of coming into operation of
  the Act or after February 1, 1973, the date of commencement
  of the Amendment Act (Maharashtra Act 17 of 1973) any
  licence given by the tenant unlawfully or any unlawful assignment
G or transfer of his interest in any other manner in the whole or
  part of the demised premises would make the tenant liable to
  eviction.
      18. Section 15, in sub-section (1) then laid down what
H would make the sub-letting, assignment, transfer or licence
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 179
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
 unlawful. It said that any sub-letting or assignment or transfer A
 of his interest in any manner made by the tenant after January
 19, 1948 or any licence given by him after February 1, 1973
 for the whole or part of the premises, unless sanctioned by the
 contract, would not be lawful, notwithstanding any thing
 contained in any law. Section 15(1), thus, took away any B
 protection given to the tenant by any other law, e. g., section
 108 0) of the Transfer of Property Act and prohibited him from
 any sub-letting or licensing or assignment or transfer of his
 interest in any other manner in the absence of a sanctioning
 provision in the contract unless, of course, the demised c
 premises came under the proviso fo section 15(1). But it is no
 one's case here that the proviso to sectjon 15(1) has any
 application to the present suit land. In light of section 15(1 ), so
 much emphasis put on behalf of the plaintiff on clause 4 of the
 lease deed dated May 10; 1886 would appear to be rather out D
 of place because even without clause 4, in the absence of a
 sanctioning clause in the lease the subletting by the tenant would
 not be lawful and would come within the mischief of section
 13(1 )(e).
        19. But then came section 15 (2) that removed the E
  "unlawful" tag from any sub-letting, assignment, transfer of
  interest in any other manner or licensing, though cc;mtrary to sub-
  section (1), that were made before the 1st day of February,
   1973. The second part of section 15(2) laid down that
  regardless of the prohibition in sub-section (1) and F
  notwithstanding anything contained in any contract or in the
  judgment, decree or order of a court a sub-lease, assignment
  or transfer of in~erest in any other manner shall be deemed to
. be valid if the PE:a son in whose favour transfer is made entered
  into possession of the demised property and continued to be G
  in possession on February 1, 1973. It needs to be emphasised
  here that the second part of section 15(2) overruled a contract
  bY saying at the beginning, "Notwithstanding any thing
  contained in any contract. .. ". This means that clause 4 of the
                                                                   H
    180        SUPREME COURT REPORTS               [2011) 5 S.C.R.


A lease deed would be ineffective and inoperative if the sub-lease
  made by defendant no.1 in favour of defendant no.2 otherwise
  conformed to the conditions laid down in section 15(2) of
  Bombay Rent Act. More importantly, section 15(2) further
  provided that any sub-letting, assignment or transfer of interest
B in any other manner made by the tenant that came within its
  protective ambit would save him from eviction under section
  13(1)(e). To sum up, any sub-letting, assignment, transfer of
  interest in any other manner or licensing made by the tenant
  after February 1, 1973 without there being any sanctioning
c clause in the contract or without the express consent of the
  landlord would constitute a ground for eviction under section
  13(1)(e) of the Act.
       20. It is in the light of the legal position as explained above
  that we may now proceed to examine the findings of fact
D recorded in this case. It is undeniable that defendant no.1 made
  a sub-lease and parted with the possession of the suit land in
  favour of defendant no.2. But the crucial question is when did
  this transaction take place and when was defendant no.2
  inducted into the suit land? The plaintiff in its pleadings and
E evidence is completely silent on this question. The trial court
  also did not advert to the question. But, the first appellate court
  has recorded a finding. The appellate court observed:
          "The learned advocate for both the appellants took us to
          the evidence to show that defendant no.2 is in possession
F         of the premises since prior to 1/2/1973 and therefore, they
          are protected. Evidence on record shows that the fact
          of possession of the defendant no.2 in the premises
          prior to 1/2/1973 is admitted but. .. ."

G                                                (Emphasis Added)
        Having come to this finding, the appellate court
    misdirected itself by misconstruing the provision of section
    15(2) of the Bombay Rent Act. But the finding of fact that
    defendant no.2 came in possession of the suit land from before
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 181
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
February 1, 1973 and continued to be in its possession on that       A
date is very much there.
     21. The finding is arrived at for good reasons and it is
supported by both oral and documentary evidences. A charge
certificate issued by the Estate Manager's Department,               B
Mumbai Port Trust dated February 1, 1963 is on record as
Annexure PS. It is as under:
                                                         No.551
                      MUMBAI PORT TUST
                                                                     c
             ESTATE MANAGER'S DEPARTMENT
                     CHARGE CERTIFICATE
         This is to certify that the Plot of Land i.e. position of
    old RR No.736 situated at Wadi Sunder Road Santa Cruz            D
    Estate & agreed to be leased by Trustees' Resolution
    No.1121 dated 11/12/1962 to M/s Morarji Dharamsey
    Shawanji & Ors. (Wadi Sunder Cotton Press Company)
    has been pegged out to the dimensions measuring 5571
    5/6 square yards and handed over to Mr. Morarji
    Dharamsey Shawanji this day the 1st of February 1963 by          E
    me with effect from 1st March 1955.
                 Signed _ _ _(illegible)_ _ _Surveyor
    and taken over and acknowledged correct by me.
                 Signed Morarji Dharamsey Bhawanji Lessee            F
    Sd/-
    Assistant Manager
    North/ South District
                                                                     G
         Forwarded to the Lessee/s M/s Morarji Dharamsey
    Shawanji & others trading in the name and style of M/s
    Wadi Sunder Cotton Press Co. for information and record.
           No building operations on the plot mentioned on the
                                                                     H
    182       SUPREME COURT REPORTS               (2011] 5 S.C.R.


A         reverse should be commenced until the plans in respect
          thereof are previously approved by the Trustees.
          This permit should be produced for inspection whenever
          demanded by an Officer of the Port Trust.
B         Dated 1/2/1963
                                                            Sd/-
                                                 Estate Manager"

         22. There are receipts of the years 1963 and 1965 issued
c   by the Mumbai Port Trust acknowledging the payment of rent
    from defendant no.2. More importantly the sub-lease deed that
    forms the sheet-anchor of the plaintiff's case, though executed
    on June 1, 1978, was made effective retrospectively from June
    15, 1964. It came to an end on February 26, 1985.
D       23. On the basis of the materials on record, we must
  accept and proceed on the basis that defendant no.2 was in
  occupation of the suit land long before February 1, 1973 and
  had continued to be in its possession on that date. The sub-
  letting by defendant no.1 in favour of defendant no.2, thus,
E clearly fell within the protective ambit of section 15(2) of
  Bombay Rent Act.

        24. Faced with this situation, Mr. Sundaram, learned senior
  advocate, appearing for the plaintiff-respondent no.1 contended
F that in order to claim protection under section 15(2) of the Act,
  it was incumbent upon the claimant to show that there was a
  sub-lease, assignment or transfer in his favour prior to 1973
  and it was in pursuance of such sub-lease, assignment or
  transfer that it came in possession and continued to be in
G possession of the demised property and was actually in
  possession of the demised property on February 1, 1973. In
  this case, according to Mr. Sundaram, apart from the sub-lease
  dated June 17, 1978, there was no other sub-lease or any other
  instrument of transfer to show that defendant no.2 came in
H possession of the suit land in pursuance of any sub-lease,
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 183
BYRAMJEE JEEJEEBHOY PVT. LTD. [AFTAB ALAM, J.]
assignment or transfer, etc.                                         A
     25. We find no force in this submission. Section 15(2),
apart from others uses the expression 'transfer of interest in
any other manner'. It is sufficiently wide to include even an oral
arrangement pursuant to which the sub-lessee might enter upon
                                                                     8
the land and continue in its possession. We have no manner
of doubt that the initial induction of defendant no.2 on the suit
land was covered by section 15(2) of the Act.
     26. Mr. Sundaram next contended that the possession of
the suit land by defendant no.2 on February 1, 1973 might have       C
had the protection of section 15(2) of the Act. But a basic
change was brought about by the execution of the lease deed
on June 17, 1978 which gave rise to a new relationship
between the two defendants, the lessee and the sub-lessee.
Mr. Sundaram submitted that the execution of the sub-lease by        D
defendant no.1 in favour of defendant no.2 on June 17, 1978
and the continued possession of the suit land by defendant no.2
on the basis of that sub-lease would certainly not come under
the protection of section 15(2) of the Act.
     27. In order to appreciate Mr. Sundaram's submission it         E
would be apposite to refer to section 22 of the Bombay Rent
Act, which is as follows:

     "22. Particulars to be furnished by tenant of tenancy
     sub-let or transferred before the 1st day of February           F
     1973.
     (1) Every tenant who before the 1st day of February 1973,
     has without the consent of the landlord given in writing sub-
     let the whole or any part of the premises let to him or
     assigned or transferred in any other manner his interest        G
     therein, and every sub-tenant to whorn the premises are
     so sub-let or the assignment or transfer is so made, shall
     furnish to the landlord, within a month of the receipt of a
     notice served upon him by the landlord by post or in any
                                                                     H
    184       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A         other manner, a statement in writing signed by him giving
          full particulars of such sub-letting assignment or transfer
          including the rent charged or paid by him.
          (2) Any tenant or sub-tenant who fails to furnish such
          statement or intentionally furnishes a statement which is
B         false in any material particular shall, on conviction, be
          punished with the fine which may extend to one thousand
          rupees."
       28. Section 22 provided for the landlord to have full
c information concerning the sub-lessee/licensee who might be
  in occupation of the demised premises on February 1, 1973,
  including the rent charged from him by the tenant. The provisions
  of section 22 clearly suggest that after the cut off date, i.e.,
  February 1, 1973 there should be no material change, to the
0 detriment  of the landlord in the terms and conditions on which
  the sub-tenant was in possession of the demised premises on
  that date and in case after that date, any material change is
  brought about in the status of the sub-tenant, to the prejudice
  of the landlord that might not have the protection of section
E 15(2) but may come within the mischief of section 13(1 )(e). And
  hence, the point raised by Mr. Sundaram appears to be
  theoretically correct. But in the facts of the case the point does
  not seem to arise. Mr. Parag Tripathi, learned Additional
  Solicitor General, appearing for the Mumbai Port Trust, rightly
  submitted that in pith and substance the sub-lease deed of
F 1978, was simply a formalization and continuation of the
  arrangement as existing between the defendants prior to
  February 1, 1973. There was no material change in the status
  of defendant no.2 or in the terms and conditions on which it was
  in possession of the suit land on February 1, 1973 or in the inter
G se relationship between the two defendants. The execution of
  the sub- lease on June 17, 1978 by defendant no.1 in favour
  defendant no.2 would not, therefore, militate against the
  protection offered by section 15(2) of the Act. The execution
  of the lease would not constitute a ground for eviction against
H
BOARD OF TRUSTEES OF THE PORT OF MUMBAI v. 185
BYRAMJEE JEEJEl::BHOY PVT. LTD. [AFTAB ALAM, J.]
defendant no.1 in terms of section 13( 1)(e) of the Act.            A
     29. In light of the discussion made above, we find that the
judgments and orders passed by the High Court and the two
courts below are quite unsustainable. We, accordingly, set
aside the judgme1 .ts and orders passed by the High Court and       8
the court of Small Causes and dismiss the suit filed by the
plaintiff-respondent no.1.

       30. The appeals are allowed but with no order as to costs.

D.G.                                           Appeals allowed.     C