- (1.) The respondent is a statutory body corporate initially constituted under the Bombay Port Trust Act, 1879 (Bombay Act 6 of 1879), for short State Act. Under Section 26 thereof, the Board have power to acquire and hold, moveable and immoveable property and also have power to. lease, to sell or otherwise convey moveable and immoveable property which may have become vested in or acquired by them. The respondent has appointed A. J. Mescarnas, Assistant Estate Manager as their power Of attorney holder to lease out its properties from time to time or terminate the leases and to lay action for ejectment, etc. The respondent owns the building bearing Old R.R. No. 941 known as "Frere Land Estate" in which room No. 2 admeasuring 28.27 sq. meters was leased out to Vasantkumar Raidhakisan Vora, for short 'Vasantkumar'.The appellants are his legal representatives. He was served with a notice under Section 106 read with Section 111(h) of the Transfer of Property Act terminating the tenancy in terms of the covenants of lease and was asked to deliver possession of the demised property giving one month's time from 22nd January, 1975. It was served on Vasantkumar on January 28, 1975. The notice of termination thereby became effective from 28th February, 1975. In the meanwhile Major Port Trust Act, 1963 (Act No. 38 of 1963), for short the "Central Act", was made applicable to the Bombay Port Trust by operation of Section 1330(2A) with effect from February 1. 1975. After the expiry of one month, ejectment application was filed under Section 41 of the Bombay Presidency Small Cause Courts Act (Act 15 of 1882) as amended under 1963 Maharashira Amendment Act, against Vasantkumar and another for delivery of possession. After 1976 Amendment Act 19 of 1976 came into force suits were laid against three other tenants. It was pleaded by the respondent that it is a successor in interest of the Board under the State Act and were entitled to eject the tenants and to the possession of the demised portions. The plea of Vasantkumar in his written statement elaborated by the learned counsel, is that the suit is not maintainable. Since the State Act ceased to be operative with effect from February 1, 1975, the quit notice issued under Section 106 read with Section111 (h) of Transfer of Property Act became ineffective and without determining the tenancy afresh, the suit was not validly laid. It was also pleaded that the respondent had promised that on deposit of certain amount which the tenant did, Vasantkumar would be given on lease of a portion in the reconstructed building. Thereby the respondent is estopped by promissory estoppel to have the tenant ejected. It may be mentioned at this juncture that one suit was dismissed on the ground that the tenancy was not duly determined as per law. Other suits were decreed. No appellate forum has been prescribed under Amendment Act of 1963 but a substantive suit on original side provided was available. By Maharashtra Amendment Act 19 of 1976 to the principal such a right to appeal was incorporated. Vasantkumar filed writ petition in the High Court under Articles 226 and 227 and others filed regular appeals to a Bench of two Judges of the Small Cause Court and are stated to be pending.
(2.) In the writ petition the petitioner challenged the vires of 1963 Amendment Provisions and also 1976 Amendment Provisions to the Presidency Small Cause Courts Act. When it came up for hearing before Masodkar, J., he referred to a Division Bench. The Division Bench by its judgment dated January 17/18, 1982 upheld the constitutional validity' of those sections and remitted to the learned single Judge to dispose of the writ petition on merits. The learned single Judge considered and negatived two points namely, validity of the notice terminating the tenancy, promissory estoppel and dismissed the writ petition. Vasantkumar had leave of this Court under Art. 136
(3.) The primary contention of Mr.Turana, learned counsel for the appellant, is that quit notice issued under Sec. 106 read with Sec. 111 (h) of the T. P. Act is invalid. By issue of quit notice no right had been accrued to the respondent. Termination of tenancy became operative only on expiry of one month given thereunder, i.e. February 28, 1975, by which date the State Act became inoperative as from February 1, 1975 the Central Act came into force. The respondent under the Central Act acquired, by statutory operation, the immoveable property including the demised one in Frere Land Estate and thereby became a new landlord. Termination of tenancy is an act inter vivos by operation of Sec. 106 read with Sec.111 (h) of T. P. Act. Under Sec. 109 thereof, the respondent, not being a living person is not entitled to the benefit of the quit notice as its operation is not saved by Sec. 2(d) and Sec. 5 thereof. The suit, thereby, is not maintainable since admittedly no quit notice determining the tenancy was issued after February 1, 1975. The edifice of the argument was built up on shifting and when it is subjected to close scrutiny it crumbled down traceless. Let us first deal with the arguments on the foot of the provisions of T. P. Act. Section 2(d) of the Transfer of Property Act, 1882 provides saving of the previous operation of law. It states that,:- "........... nothing herein contained shall be deemed to affect save as provided by Sec. 57 and Chapter IV of this Act, and transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction." Section 106 empowers the landlord to terminate the contract of lease of. immoveable property, if it is for agricultural or manufacturing purpose by giving six months notice and terminable on the part either lessor or ,lesses, by giving fifteen days notice expiring with the end of the month of the tenancy. Section 111(h) provides that, "on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other". Section 109 is Rights of lessor's transferee :- "If the lessor transfers the property leased, or any part thereof, or any of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, subject to'all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease unless the lessee elects to treat the transferee as the person liable to him." Provisos are not necessary, hence omitted.;