The Bombay High Court has reaffirmed that unauthorised subletting of public premises, without the explicit consent of the landlord, constitutes a ground for eviction under the Public Premises (Eviction of Unauthorised Occupants) Act. The judgment underscores the legal principle that appellate courts cannot overturn lower forum orders based on evidence introduced for the first time on appeal, especially when the original parties failed to participate in the proceedings.
Background & Facts
The Dispute
The petitioner, the Board of Trustees of the Port of Mumbai, a statutory corporation, sought eviction of respondent no.1 (Maharashtra Minerals Corporation Limited) and respondent no.2 (M/s. Martek Engineering Works) from premises at Ballard Estate, Mumbai, on the grounds of unauthorised subletting and non-payment of monthly charges. The premises were originally allotted to respondent no.1 under a charge certificate issued on 10.04.1997, confirming tenancy from 01.04.1994. No formal lease deed was executed or registered.
Key Facts
- The terms of tenancy, as recorded in correspondence dated 06.03.1997 and accepted by respondent no.1 on 10.04.1997, explicitly prohibited subletting without prior written consent of the petitioner.
- Respondent no.1 sublet the premises to respondent no.2 without obtaining any written permission from the petitioner.
- Respondent no.1 defaulted on payment of monthly charges from 01.08.2000 onwards.
- A notice of demand was issued on 26.07.2003, terminating the tenancy.
- Respondent no.1 sent a letter dated 12.08.2003 intimating the subletting to respondent no.2, but the petitioner did not issue any written consent.
- The Estate Officer initiated proceedings under Section 5(1) of the Public Premises Act on 01.04.2003.
- Respondents were served but failed to file written statements or lead evidence before the Estate Officer.
- The Estate Officer passed an order on 28.03.2026, directing eviction and payment of arrears from 01.10.2002 to 21.09.2003.
Procedural History
- 01.04.2003: Proceedings initiated by petitioner before the Estate Officer (Case No. EO/E(99)(99-A)(99-B)(99-C) of 2003)
- 08.03.2006: Hearing before Estate Officer; respondents absent, no written statement filed
- 28.03.2026: Estate Officer passed ex-parte order for eviction and compensation
- 10.08.2010: Respondent no.1 filed appeal under Section 9 of the Act before the City Civil Court
- 10.08.2010: City Civil Court allowed the appeal, set aside eviction and compensation orders, relying on letter dated 12.08.2003
- 28.03.2026: Writ petition filed before Bombay High Court under Article 227
- 08.06.2026: Judgment pronounced by Gauri Godse, J.
The Parties' Positions
Petitioner: Argued that respondent no.1 violated the terms of tenancy by subletting without consent and failed to pay dues. The Estate Officer’s order was based on unchallenged evidence and procedural compliance.
Respondent no.1: Claimed implied consent from the petitioner’s response to the 12.08.2003 letter, and asserted that arrears were paid. Contended that the appellate court was justified in relying on the letter.
Respondent no.2: Did not challenge the Estate Officer’s order and did not appear before the appellate court.
Relief Sought
The petitioner sought quashing of the City Civil Court’s order dated 10.08.2010, confirmation of the Estate Officer’s order dated 28.03.2026, and restoration of the eviction and compensation directions.
The Legal Issue
The central question was whether an appellate court under Section 9 of the Public Premises Act can set aside an eviction and compensation order passed ex-parte by the Estate Officer by relying on documents and evidence produced for the first time on appeal, when the original parties failed to file pleadings or lead evidence before the lower forum.
Arguments Presented
For the Petitioner
Counsel relied on Anil Rishi v. Gurbaksh Singh and Rangammal v. Kuppuswami to argue that once the petitioner established a prima facie case of unauthorised occupation and arrears, the burden shifted to the respondents to rebut it. Since no written statement or evidence was filed before the Estate Officer, the appellate court erred in relying on an unproved letter dated 12.08.2003. Counsel further cited New Delhi Municipal Committee v. Kalu Ram to affirm that the summary procedure under Section 7 requires strict compliance with notice and opportunity to be heard.
For the Respondent
Respondent no.1 contended that the petitioner’s response to the 12.08.2003 letter constituted implied consent for subletting, and that arrears were settled. Relied on Kamala Ranjan Roy v. Baijnath Bajoria to argue that consent need not always be in writing if implied by conduct. Also invoked New India Assurance v. Nusli Wadia and Ashis Kumar Ghosh to challenge the time-barred nature of arrears claimed from 1982.
The Court's Analysis
The Court held that the Estate Officer’s order was procedurally sound and based on unchallenged evidence. The respondents, despite being served and granted opportunity, chose not to file a written statement or lead any evidence. The burden of proof, once discharged by the petitioner, shifted to the respondents under Anil Rishi. The failure to rebut the petitioner’s case rendered the eviction order valid.
"The appellate court completely lost track of the fact that respondent no.1 had not filed any pleadings before the Estate Officer to rebut the petitioner's contentions."
The Court emphasised that the letter dated 12.08.2003, relied upon by the appellate court, was not proved. No affidavit, witness testimony, or admission was adduced to establish its authenticity or content. The appellate court’s reliance on this document, introduced for the first time on appeal, violated the foundational principle that adjudication must be based on pleadings and evidence presented before the trial forum, as held in Rangammal.
The Court distinguished Kamala Ranjan Roy, noting that the case dealt with unreasonable withholding of consent, not absence of any consent. Here, no consent - written or implied - was established. The petitioner’s silence did not amount to approval under the terms of tenancy.
Regarding arrears, the Court noted that the Estate Officer had correctly limited the claim to the period 01.10.2002 to 21.09.2003, after accounting for payments. The appellate court’s reversal on the basis of an unproved letter was legally unsustainable.
The Verdict
The writ petition is allowed. The City Civil Court’s order dated 10.08.2010 is quashed and set aside. The Estate Officer’s order dated 28.03.2026 is confirmed. Eviction of respondents is upheld. Compensation for arrears of monthly charges from 01.10.2002 to 21.09.2003, as specified in the Estate Officer’s order, is restored. The respondents are directed to vacate the premises within four weeks from the date of this order.
What This Means For Similar Cases
Evidence Introduced on Appeal Cannot Override Ex-Parte Orders
- Practitioners must ensure all evidence and pleadings are filed before the Estate Officer or trial forum; appellate courts will not entertain new evidence in eviction cases under the Public Premises Act.
- Failure to file a written statement or appear before the Estate Officer constitutes waiver of defence.
Implied Consent Is Not Sufficient Where Written Consent Is Contractually Required
- Where tenancy terms require written consent for subletting, mere intimation or silence by the landlord does not constitute implied consent.
- Landlords must document all communications to avoid ambiguity, but tenants cannot rely on unproven correspondence to override contractual obligations.
Summary Proceedings Under Public Premises Act Are Strictly Procedural
- The summary nature of proceedings under Section 7 does not excuse compliance with notice and opportunity to be heard.
- Compensation orders must be based on verified statements; speculative or unproved claims of payment will not defeat recovery.
