Bombay High Court
Jamil Umar Khattab Khan vs The Board Of Trustees Of The Port Of ... on 6 November, 2025
025:BHC-AS:6
Megha 43_wp_8038_2019_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8038 OF 2019
WITH
CIVIL APPLICATION NO.1696 OF 2019
IN
WRIT PETITION NO.8038 OF 2019
Jamil Umar Khattab Khan ...Petitioner
V/s.
The Board of trustees of the Port of
Mumbai and Anr. ...Respondents
______________
Mr. V.Y. Sanglikar with Mr. Maroof Khan for the Petitioner.
Mr. Ahmed Padela i/b. M/s. The Law Point for the Respondents.
______________
CORAM: SANDEEP V. MARNE, J.
DATED: 06 NOVEMBER 2025.
Judgment:
1) Petitioner has filed the present Petition challenging the
judgment and order dated 19 June 2019 passed by the Bombay City
Civil Court, dismissing Miscellaneous Appeal No.516 of 2018 and
upholding the eviction order dated 26 October 2018 passed by the
Estate Officer of Mumbai Port Trust directing the Petitioner to vacate
the premises.
2) Briefly stated, facts of the case are that Petitioner claims to
be the tenant of one Aziz Shaikh by virtue of Tenancy Agreement
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dated 1 January 1972, by which land admeasuring 672 sq.ft. bearing
Plot No.334 situated at Signal Hill Avenue Road, on the East Pritania
road, near Standard Weight Bridge, Reay Road (East), Mumbai-400
010 (the premises) was allegedly leased out to him. The said tenancy
agreement dated 1 January 1972 described Mr. Aziz Shaikh as a sub-
tenant of Mr. Vallabh Khimji Karwa. The premises were shown to have
been let out for commercial purpose of doing metal scrap/ pipe
business. Petitioner claims possession of the premises w.e.f. 1 January
1972.
3) On the other hand, it is the case of Respondent -Mumbai
Port Trust that the premises were allotted in the name of Mr. Vallabh
Jaichandilal Karwa, Murlimanohar Barkatlal Karwa, Mr. Prushottam
Barkatlal Karwa, Smt. Savitridevi Ramchander Karwa (Karwas) vide
letter dated 18 November 1981 as joint tenants for storage of non-
hazardous goods other than timber material and for office in
connection therewith. Respondent -Trust had filed L.E. & C. Suit
No.156/184 of 1985 against Karwas seeking their eviction under
Section 41 of the Presidency Small Causes Courts Act, 1882. Suit was
decreed by judgment and order dated 21 August 1999 directing eviction
of Karwas. According to the Petitioner, the decree dated 21 August
1999 was never executed. Respondent- Trust claims that Karwas sublet
the premises in favour of the Petitioner, who has been using the same
as mosque by putting up an unauthorised construction of 26.48
sq.mtrs. and mezzanine floor admeasuring 40.13 sq.mtrs. Respondent-
Trust terminated the tenancy of Karwas by Advocate's notice dated 6
October 2012. Respondent filed case No. EO / E No.175 of 2014
before the Estate Officer seeking eviction of Karwas and the Petitioner
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under the provisions of Public Premises (Eviction of Unauthorised
Occupants) Act 1971 (Public Premises Act). Initially, the ex-parte order
was passed directing the eviction of Karwas and Petitioner, which was
upheld by the Principal Judge, City Civil Court, Mumbai on 16 July
2018 in Miscellaneous Appeal No.173 of 2017 filed by the Petitioner.
In Writ Petition No.8984 of 2018 filed by the Petitioner, the order
passed by the Principal Judge as well as ex-parte order dated 8 June
2017 were set aside only qua the Petitioner. Eviction of Karwas was
confirmed. The proceedings were remanded for fresh decision before
the Estate Officer subject to payment of cost of Rs. 40,000/- and
damages of Rs.5,00,000/- to the Respondent-Trust by the Petitioner.
4) In the remanded proceedings, parties led evidence in
support of their respective contentions. By order dated 26 October
2018, the Estate Officer has once again directed eviction of the
Petitioner with further directions for payment of damage rent of
Rs.29,45,094.61. Petitioner challenged the eviction order dated 26
October 2018 by filing Miscellaneous Appeal No.516 of 2018 before
the City Civil Court at Bombay. By judgment and order dated 19 June
2019 the learned Principal Judge of the City Civil Court has partly
allowed the Misc. Appeal No.516 of 2018 directing the Estate Officer
to consider the claim for damages afresh. However, the Principal Judge
has upheld the eviction order.
5) Petitioner has accordingly filed the present Petition
challenging the judgment and order passed by the learned Principal
Judge.
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6) Mr. Sanglikar, the learned counsel appearing for the
Petitioner would submit that eviction of the Petitioner has been
erroneously ordered by the Estate Officer without following the due
process of law and without considering the defences raised by the
Petitioner. He would submit that an Estate Officer did not have
jurisdiction to decide the dispute with regard to the tenancy. That the
eviction proceedings were initiated before the Estate Officer jointly
against the Petitioner and Karwas under a representation that the Suit
before the Small Causes Court for eviction of tenants was filed against
all of them. That thus there is express admission of tenancy claim of
the Petitioner in the eviction application filed before the Estate Officer.
That since Petitioner is described as tenant, against whom suit was filed
before the Small Causes Court, the Estate Officer did not have
jurisdiction to order summary eviction.
7) Mr. Sanglikar would further submit that the learned
Principal Judge did not appreciate the effect of provisions of Section 27
of the Limitation Act, 1963, under which an extinguished right cannot
be brought to life by way of initiation of summary eviction
proceedings. That the argument of extinguishment of right has neither
been considered nor decided by the learned Principal Judge. In support
of his contention of extinguishment of right under Section 27 of the
Limitation Act, reliance is placed on judgment of the Apex Court in
Dindayal and Another Vs. Rajaram1 and Yeshwantrao Laxmanrao
Ghatge and another v. Baburao Bala Yadav (dead) by LR's 2. He would
further submit that the show cause notice issued to the Petitioner was
defective. That the show cause notice sought to combine various
AIR 1970 SC 1019
AIR 1978 SC 941
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allegations such as unauthorised construction, change of user,
encroachment, parting with possession, etc. That such composite show
cause notice could not be issued. He would rely upon judgment of this
Court in Mine Manager, Manganese Ore (India) Ltd. and Another
V/s. Shyam s/o Kunjilal Yadav 3 in support of his contention that
issuance of proper notice to show cause to the occupant is mandatory
requirement of the Public Premises Act. Mr. Sanglikar would further
submit that the show cause notice merely reproduced the averments
made of the eviction application. That the Estate Officer required to
apply his mind to the contentions of the application and thereafter
issue show cause notice. Mere reproduction of wordings of the eviction
application does not constitute proper show cause notice. In support,
he would rely upon judgment of Division Bench of this Court in
Minoo Framroze Balsar V/s Union of India and Others 4
8) Lastly, Mr. Sanglikar would submit that Petitioner has
been running a mosque in the premises for the last several years. That
there is a regularisation policy framed by Respondent -Port Trust,
under which occupation can be regularised subject to payment of
charges. He would therefore submit that Petitioner satisfies the
condition for regularisation of his occupation and that therefore he
cannot be termed as an unauthorised occupant. He would therefore
pray for setting aside the eviction order as well as the order passed by
the Principal Judge.
9) The Petition is opposed by Mr. Padela, the learned
counsel appearing for the Respondent. He would submit that the
2002(3) Mh.L.J.917
AIR 1992 Bombay 375
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eviction proceedings qua Karwas have attained finality as they never
questioned the earlier eviction order. That this Court has clarified that
earlier eviction order was set aside only qua the Petitioner and not qua
the Karwas. That the Petitioner ultimately claims through Karwas and
if eviction of Karwas has attained finality, the Petitioner must also
vacate the premises in absence of any independent right. He would
submit that Mr. Aziz Shaikh did not have any right to induct the
Petitioner as a tenant. That Petitioner is a rank encroacher in the
premises, who has never been allotted the premises of the Port Trust.
As against permissive use for storage of non-hazardous goods,
Petitioner has been running a mosque in the premises. That Petitioner
has no semblance of right in the premises. That therefore eviction of
the Petitioner has rightly been ordered by the Estate Officer. He would
accordingly pray for dismissal of the Petition.
10) Rival contentions of the parties now fall for my
consideration.
11) Petitioner is directed to be evicted from the premises on
the ground that he has no privity of contract with the Respondent -Port
Trust and has illegally converted use of the premises from commercial
to mosque without securing permission. It is also held that Petitioner
has caused unauthorised construction in the premises.
12) The first objection of the Petitioner is about absence of
jurisdiction of Estate Officer to pass an eviction order against him. It is
contended that Petitioner's tenancy rights cannot be brought to an end
by conducting summary eviction enquiry by the Estate Officer.
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Petitioner has contended that he could be evicted from the premises
only after following due process of law, by filing eviction suit before the
Court having jurisdiction. Petitioner believes that he is a tenant of the
Port Trust and therefore questions jurisdiction of the Estate Officer in
initiating and deciding the eviction proceedings. However, there is
absolutely nothing on record to indicate that the Petitioner was ever
inducted as a tenant in respect of the premises by the Respondent -Port
Trust. His claim of tenancy is essentially premised on an averment
made in the eviction application by the Port Trust that ' Petitioners
states that they had filed suit against the Respondents for recovery of
possession of the demised premises....' . The Petitioner was also
impleaded as Respondent No.5 to the eviction application. It is
therefore contended that since the suit was filed for eviction of Karwas
and Petitioner before the Small Causes Court, the Estate Officer did
not have jurisdiction to conduct summary eviction proceedings.
13) However, the claim of the Petitioner of tenancy on the
basis of averments made in the eviction application is clearly
misconceived. That Respondent -Port Trust may have inadvertently
averred in the Eviction Application that the Suit was filed against
Karwas and the Petitioner, in fact the Suit was filed only against
Karwas. Copy of the judgment and decree dated 21 August 1999 has
been produced alongwith the Petition, perusal of which would indicate
that the Petitioner was not a party defendant to the said Suit. The Suit
was filed only against Karwas. The Suit was required to be filed against
Karwas on account of creation of occupancy rights in their favour by
the Respondent- Port Trust. However, qua Petitioner such occupancy
rights were not created in any manner by the Respondent -Trust. There
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is not even a single document on record to infer creation of any
tenancy by the Port Trust in favour of the Petitioner. Therefore, there is
no question of Respondent -Port Trust requiring to file eviction Suit
under the provisions of Maharashtra Rent Control Act, 1999 against
the Petitioner. Since there is no landlord-tenant relationship, the
objection of jurisdiction of the Estate Officer, sought to be raised by
the Petitioner, is clearly misconceived and deserves outright rejection.
14) Petitioner is admittedly possessing the premises. Once
eviction proceedings are initiated against him, it becomes necessary for
him to establish that possession of the premises by him has some
authority in law. Upon being queried as to who inducted the Petitioner
into the premises, the only document that is relied upon by the
Petitioner is so called tenancy agreement dated 1 January 1972. Said
agreement is shown to have been executed between Aziz Shaikh as
landlord and Petitioner as tenant. However, admittedly, the landlord in
respect of the premises is the Respondent- Port Trust. There is nothing
on record to indicate that Mr. Aziz Shaikh was inducted as tenant in
respect of the premises. He apparently did not have any authority to
enter into any agreement with Petitioner qua the premises.
Furthermore, the first recital to the agreement indicates that Mr. Aziz
Shaik was sub-tenant from Vallabh Karwa. However, Petitioner has not
placed on record any document showing creation of tenancy in favour
of Mr. Vallabh Khimji Karwa or Karwa inducting Mr. Aziz Shaikh as a
sub-tenant. Thus, except a stray document of so-called tenancy
agreement dated 1 January 1972, there is absolutely no material on
record to indicate that Mr. Aziz Shaikh had any authority to induct
Petitioner as tenant in respect of the premises.
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15) On the other hand, the occupancy rights in respect of the
premises were created by the Respondent -Port Trust in favour of
Vallabh Jaichandilal Karwa, Murlimanohar Barkatlal Karwa, Mr.
Prushottam Barkatlal Karwa, Smt. Savitridevi Ramchander Karwa
trading in the name and style of M/s. Ashok Kumar and Co. vide letter
dated 18 November 1981. If Petitioner was already a tenant in respect
of the premises since 1 January 1972, how occupancy rights could be
created in the name of Karwas on 18 November 1981 has not been
explained in any manner by the Petitioner. Thus, there is absolutely no
evidence on record to infer existence of landlord-tenant relationship
between the Petitioner and Respondent -Port Trust.
16) Petitioner has thus thoroughly failed to prove that he was
in authorised occupation of the premises for the purpose of seeking
protection against eviction. Once there is failure to show authority to
possess, eviction must necessarily follow.
17) Faced with the difficulty that the Petitioner cannot prove
authority in law to justify his possession of premises, he has raised
several technical objections to somehow get the eviction order set aside.
One of the defences raised by the Petitioner is that the right of
Respondent -Port Trust to evict him is extinguished by virtue of
Section 27 of the Limitation Act. However, this defence is again
misconceived as the same is premised on a misconception that eviction
suit was filed in the Small Causes Court against the Petitioner as well.
Section 27 contention could have been raised by Karwas, against
whom eviction order was passed and the same was not put in
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execution. However, Petitioner was not party to the said eviction suit
and therefore even if it is momentarily assumed that there was
extinguishment of rights qua Karwas, such extinguishment would not
apply in relation to the Petitioner. Since principle of extinguishment of
right under Section 27 of the Limitation Act does not apply to the
Petitioner, there is no point in discussing the ratio of the judgments of
the Apex Court in Dindayal and Yeshwantrao Laxmanrao Ghatge
(supra) cited on that of Petitioner.
18) Petitioner has also raised defence of invalidity of show
cause notice. It is submitted that show cause notice is mere
reproduction of eviction application by citing judgment of this Court
in Minoo Framroze Balsar (supra). In my view the judgment merely
highlights the scope of enquiry by the Estate Officer and it is held that
the Estate Officer must record reasons as to why he is satisfied that
addressee of the notice is in unauthorised occupation of the public
premises. In my view, considering the facts of the present case, it
cannot be contended that any prejudice is caused to the Petitioner on
account of reproduction of some of the wordings of eviction
application in the show cause notice. Petitioner has clearly understood
the exact nature of allegations raised in the show cause notice. He
therefore cannot be permitted to take advantage of technicalities.
19) One more objection is regarding show cause notice
clubbing of several grounds of eviction by the Respondent-Trust. I do
not see any reason why separate show cause notices need to be issued
in respect of each of the allegations of unauthorised construction,
change of user, encroachment, etc. I am therefore not able to agree that
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show cause notice is invalid or that therefore the entire eviction order
must be set aside. It is therefore not necessary to discuss the ratio of the
judgment in Minoo Framroze Balsar (supra).
20) I am unable to uphold the contention raised on behalf of
the Petitioner that he is being evicted without following due process of
law or without considering the defences raised by him before the Estate
Officer. In my view, impugned eviction order has been passed after duly
taking into consideration various facts and circumstances of the present
case. Full opportunity of hearing as well as leading evidence was
afforded to the Petitioner. Principles of natural justice have been duly
adhered to. In my view therefore no infraction of any rule or guideline
has occurred in the present case. It therefore cannot be contended that
show cause notice is not valid.
21) Perusal of the findings of the learned Principal Judge
would indicate that he has taken into consideration the fact that there is
total absence of evidence of Petitioner's induction in the premises. The
learned Judge has noticed Petitioner's conduct of running a mosque in
the premises which were let out to Karwas for storage of non-
hazardous goods. The findings recorded by the Principal Judge are well
supported by material on record and do not suffer from vice of
perversity. Therefore, I do not find any reason to interfere in the
concurrent findings recorded against the Petitioner by the Estate
Officer and by the learned Principal Judge, City Civil Court. Petitioner
is a rank encroacher in the premises, who has entered thereon without
any authority. He cannot remain on public premises and has rightly
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been directed to be evicted. I therefore do not find any valid reason to
interfere in the concurrent findings recorded against the Petitioner.
22) Petition is devoid of merits and it is accordingly dismissed
without any order as to costs. Civil Application stands disposed of.
[SANDEEP V. MARNE, J.]
23) After the order is pronounced, Mr. Sanglikar, the learned
counsel appearing for the Petitioner prays for continuation of ad-
interim order for a period of 12 weeks. The request is opposed by the
learned counsel appearing for the Respondent. Considering the facts
and circumstances of the case, ad-interim relief shall continue to
operate for a period of eight weeks.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
Designation: PA To Honourable Judge 06 November 2025
Date: 11/11/2025 10:46:16
