- (1.) This petition is for leave to appeal against the judgment and order of the Division Bench of the Bombay High Court dismissing Letters Patent Appeal from the order of the learned Single Judge. The lst respondents being the trustees for the Port of Bombay are the owners of plot of land bearing Plot No. 62 admeasuring 576 sq. yards lying and situate in Poona Street, Elphinstone Estate, Bombay 3. In or about 1945 the trustees of the port of Bombay granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs. 925/- which later on was increased to Rs. 1,465/-. In or about 1946 Mustafa Husein being the lessee of the 1st Respondent erected a permanent godown of brick, mortar and cement. The said Mustafa Husein in 1958 granted lease of the said godown to the petitioners; the area of the godown is about 3,000 sq. ft. It is alleged that petitioners have since been carrying on their business in the said godown. The Trustees of the Port of Bombay filed suit against the heirs of Mustfa Husein for eviction from the lease granted to Mustfa Husein for termination of the tenancy. The ground for eviction was termination of tenancy. The Trustees of the Port of Bombay in July, 1977 obtained a decree on admission against the heirs of Mustfa Husein in the said suit. In or about May, 1985 warrant of possession in execution of decree dated 20th of July, 1977 was sought to be executed against the petitioners. The petitioners obstructed the execution of the decree. Thereupon in or about June, 1985, the Trustees of the Port of Bombay took out a Chamber Summons in the High Court of Bombay for removal of obstruction under O. 21, Rr. 97 to 101 of the Civil P.C. Petitioners contended that they were lessees under the said Mustafa Husein and as such they were entitled to the protection of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947, herein after called the Bombay Rent Act, as the Bombay Rent Act applied to the building erected by a lessee from the local authority and as such the petitioners' right of possession was protected under the provisions of the Bombay Rent Act. The learned Trial Court allowed the Chamber Summons and rejected the petitioners' contentions. He observed that it was not necessary to record evidence in this case. The petitioners being aggrieved preferred a first appeal. The learned single Judge of the High Court dismissed the first appeal holding that the petitioners were not entitled to the benefit of the Bombay .Rent Act and negatived the contentions arising out of the Easements Act and also arising out of the alleged acquiescence of the Trustees of the Port of Bombay. The petitioners preferred Letters Patent Appeal which was also dismissed by the Division Bench of the Bombay High Court. The High Court observed that if the contentions of the petitioners were accepted then the provisions of S. 4(l)(a) of the Bombay Rent Act would become nugatory. Being aggrieved therefrom the petitioners seek leave to appeal to this Court under Art. 136 of the Constitution.
(2.) The question, is whether the petitioners are entitled to protection under S. 4(1) (a) of the Bombay Rent Act. The answer will depend upon the question whether there was any building ease granted to the original tenant Mustafa Husein. There was none, at least no such evidence was adduced before the learned Trial Judge or before the Division Bench of the High Court. When the matter came before this Court for admission by our Order dated 17th of September, 1987 we had directed that as the question involved was whether there was any agreement or lease with the lessor, that they will have to construct building on the land demised to them, as recorded no such lease had been produced so far, time was granted for production of such evidence.
(3.) Pursuant to the same today we have been shown two letters, one dated 16th of April, 1951 written by the Architect of the lessor forwarding the plans in triplicate to the Bombay Port Trust for approval and the other letter dated 14th of June, 1951 written by the Manager, Land and Bunders to the architect of the lessor on the following subject : "Elphinstone State Reconstruction of a Shed on Monthly Tenancy Plot at Poona Street.", The petitioners were informed that the plan was approved subject to the compliance of the Municipal Regulations.;