# V ASANTKUMAR RADHAKISAN VORA v. BOARD OF TRUSTEES OF THE PORT OF BOMBAY

- **Citation:** [1990] 3 S.C.R. 825
- **Court:** Supreme Court of India
- **Decided:** 1990-08-21
- **Case number:** Civil Appeal No. 1348 of 1990
- **Bench:** K.N. Saikia, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-asantkumar-radhakisan-vora-v-board-of-trustees-of-the-port-of-bombay-10794
- **Pages:** 25

## Headnote

• .'!...
"'" '
,... ...,
Presidency Small Cause Court" Act, 1882 as amended by the
'
Maharashtra Amendment Act 1963, Amendment Act 1976 and Amend-
~
ment Act, 1984. Section 42A, 46(2) and 47-Tenancy terminated in
..,.- terms of covenant of lease by notice under Transfer of Property Act,
1882-Whether ejectment can be sought under Section 41 of Bombay
Presidency Small Cause Courts Act, 1882.
Major Port Trusts Act, 1963: Section 29( l)(a) & (b) read with
Section 133(2A)-Application to port of Bombay-Effect of repeal of
~ the Bombay Port Trust Act, 1879-Quit notice concerning vested immovable property-Whether ejectment suit can be filed.
Transfer of Property Act, 1882: Sections 106, 109 and 1 ll(h) quit
notice issued by assistant estate manager of Bombay Port Trust-Filing
of ejectment suit by Port Trust Board-Whether maintainable.
General Clauses Act, 1897: Sections 6 and 17-Whether there is
-, any inconsistency between the Major Port Trusts Act, 1963 and the
Bombay Port Trust Act 1879-0peration, efficacy and effectiveness of
quit notice issued by assistant estate manager under the State Act.
Indian Evidence Act, 1872: Section 115-Promissory estoppel-
·~~octrine of-Applicability of plea against government and municipal
body-Actions of State in exercise of legislative or statutory powersPublic authorities acting beyond scope of authority-Inapplicability of
•doctrine-Doctrine of executive necessity-Quit notice issued by
Assistant Estate Manager-Plea of promissory estoppel by tenantValidity of.
The respondent a statutory body corporate constituted under the
Bombay Port Trust Act, 1879-a 'State Act' who had appointed an
Assistant Estate Manager as their power of attorney holder to lease out
I.its property from time to time, terminate the leases and to lay action for
~jectment, etc.; leased out the suit property to the appellant.
825
A
B
c
D
E
F
G
H
I
A
B
c
826
SUPREME COURT REPORTS
[1990] 3 S.C.R.
The appellant was served with a notice under Section 106 read
with Section 11 l(h) of the Transfer of Property Act, 1882 terminatin~
the tenancy in terms of the covenants of lease and directing delivery of
possession of the demised property giving one month's time from 22nd
January 1975. The notice was served on the tenants on January 28,
1975 and became effective from 28th February, 1975.
In the meanwhile, the Major Port Trust Act, 1963,-a 'Central
Act' was made applicable to the Bombay Port Trust by operation of _ ___.
Section 133(2A) thereof with effect from February 1, 1975.
-~
After the expiry of one month from the suit notice an ejectment
application was filed under Section 41 of the Bombay Presidency Small
Cause Courts Act, 1882 as amended under the Maharashtra 1963
Amendment Act, and a direction was sought for delivery of possession.
Aller the Maharashtra Amendment Act 19 of 1976 came into force suits
were laid against the three other tenants of the demised property.
D
The respondent pleaded in the said suit that it was a successor-ininterest of the Port Trust Board under the State Act, and was entitled to
eject the tenants and to take possession of the demised portions. The
appellant contended in his written statement that the suit was 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
E
Section 11 l(h) of the Transfer of Property Act became ineffective and "
without determining the tenancy afresh the suit was not validly laid. It
was further submitted that the respondent had promised that on deposit
of a certain amount which_ the appellant-tenant did, he would be given
to lease a portion in the reconstructed building, and consequently the-A .
respondent was estopped by promissory estoppel to have the tenae'f -
·
F
ejected.
One suit was dismissed on the ground that the tenancy was not
duly determined as per law, while the other suits were decreed.
No appellate forum had been prescribed under the Maharashtra
G
Amendment Act of 1963 but a s

## Text

_Characters 0–39,991 of 64,262. This is a partial read: ask again with offset=39991 for what follows._

V ASANTKUMAR RADHAKISAN VORA
v.
BOARD OF TRUSTEES OF THE PORT OF BOMBAY
AUGUST 21, 1990
[K.N. SAIKIA AND K. RAMASWAMY, JJ.]
• .'!...
"'" '
,... ...,
Presidency Small Cause Court" Act, 1882 as amended by the
'
Maharashtra Amendment Act 1963, Amendment Act 1976 and Amend-
~
ment Act, 1984. Section 42A, 46(2) and 47-Tenancy terminated in
..,.- terms of covenant of lease by notice under Transfer of Property Act,
1882-Whether ejectment can be sought under Section 41 of Bombay
Presidency Small Cause Courts Act, 1882.
Major Port Trusts Act, 1963: Section 29( l)(a) & (b) read with
Section 133(2A)-Application to port of Bombay-Effect of repeal of
~ the Bombay Port Trust Act, 1879-Quit notice concerning vested immovable property-Whether ejectment suit can be filed.
Transfer of Property Act, 1882: Sections 106, 109 and 1 ll(h) quit
notice issued by assistant estate manager of Bombay Port Trust-Filing
of ejectment suit by Port Trust Board-Whether maintainable.
General Clauses Act, 1897: Sections 6 and 17-Whether there is
-, any inconsistency between the Major Port Trusts Act, 1963 and the
Bombay Port Trust Act 1879-0peration, efficacy and effectiveness of
quit notice issued by assistant estate manager under the State Act.
Indian Evidence Act, 1872: Section 115-Promissory estoppel-
·~~octrine of-Applicability of plea against government and municipal
body-Actions of State in exercise of legislative or statutory powersPublic authorities acting beyond scope of authority-Inapplicability of
•doctrine-Doctrine of executive necessity-Quit notice issued by
Assistant Estate Manager-Plea of promissory estoppel by tenantValidity of.
The respondent a statutory body corporate constituted under the
Bombay Port Trust Act, 1879-a 'State Act' who had appointed an
Assistant Estate Manager as their power of attorney holder to lease out
I.its property from time to time, terminate the leases and to lay action for
~jectment, etc.; leased out the suit property to the appellant.
825
A
B
c
D
E
F
G
H
I
A
B
c
826
SUPREME COURT REPORTS
[1990] 3 S.C.R.
The appellant was served with a notice under Section 106 read
with Section 11 l(h) of the Transfer of Property Act, 1882 terminatin~
the tenancy in terms of the covenants of lease and directing delivery of
possession of the demised property giving one month's time from 22nd
January 1975. The notice was served on the tenants on January 28,
1975 and became effective from 28th February, 1975.
In the meanwhile, the Major Port Trust Act, 1963,-a 'Central
Act' was made applicable to the Bombay Port Trust by operation of _ ___.
Section 133(2A) thereof with effect from February 1, 1975.
-~
After the expiry of one month from the suit notice an ejectment
application was filed under Section 41 of the Bombay Presidency Small
Cause Courts Act, 1882 as amended under the Maharashtra 1963
Amendment Act, and a direction was sought for delivery of possession.
Aller the Maharashtra Amendment Act 19 of 1976 came into force suits
were laid against the three other tenants of the demised property.
D
The respondent pleaded in the said suit that it was a successor-ininterest of the Port Trust Board under the State Act, and was entitled to
eject the tenants and to take possession of the demised portions. The
appellant contended in his written statement that the suit was 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
E
Section 11 l(h) of the Transfer of Property Act became ineffective and "
without determining the tenancy afresh the suit was not validly laid. It
was further submitted that the respondent had promised that on deposit
of a certain amount which_ the appellant-tenant did, he would be given
to lease a portion in the reconstructed building, and consequently the-A .
respondent was estopped by promissory estoppel to have the tenae'f -
·
F
ejected.
One suit was dismissed on the ground that the tenancy was not
duly determined as per law, while the other suits were decreed.
No appellate forum had been prescribed under the Maharashtra
G
Amendment Act of 1963 but a substantive suit on the original side
provided was available, but such a right to appeal was incorporated by
the Maharashtra Amendment Act, 19 of 1976.
•
)
The appellant filed a writ petition in the High Court under Articles 226 and 227 of the Constitution and the other tenants filed regular
H
appeals to a Bench of two Judges of the Small Causes Court, which were
pending.
V.R. VORA v. BOARD OF TRUSTEES
827
In the wrif ji~tltillll of the appellant-petitioner challenged the vires
~of Sections 2, 3 and 4 of the Maharashtra Amending Act, 1963 introducltti! Section 42(A) in Chapter VII of the Presidency Small Cause Courts
Act ailll 6eletllijj Sections 45 to 47 from the Principal Act and of amend·
ment of Section 49 flletelif; a8 well as Section 46(2) of the Presidency
Small Cause Courts Act as amended by the Maharashtra Amendment
Act of 1976 as offending Article 14 of the Constitution. When the matter
came up before the Single Judge of the High Court it was referred to the
A
B
--~ IJlvMon Bench, which upheld the constitutional validity of .the said
· sedions and remitted the matter to the Single Judge for disposal on
merits.
•
'tlle Sin11le Judge considered the matter and negatived the two
points raised by the appellant-petitioner regarding validity of the notice
C
tnmlrtatln11 the tenancy, and also the plea of promissory estoppel, and
~-- dismissed the writ petition.
The appellant appealed to this Court by special leave under Arti·
ct~ 136. It was contended on behalf of the appellant that the quit notice
D
issued under Section 106 read with Section lll(h) of the Transfer of
Property Act was invalid and that by issue of the said rwtice no right
accrued to the respondents and that the termination of tenancy became
OIJeratlve 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 had come into force; that termination
E
of tenancy was an act inter vivos by operation of Section l 06 read with
Section lll(h) of the Transfer of Property Act, and that under Section
~
109, the respondent not being a living person, was not entitled to the
-/'--...__benefit of the quit notice as its operation was not saved by Section 2(d)
and Section S of the said Act. It was also contended that the respondents
c
were estopped from ejecting the appellant and other tenants who were
p
\:_ similarly situated on the principle of promissory estoppel, as the Estate
Manager of the respondent in his letter dated April 3, 1972 directed the
tenant to deposit Rs.11,000 for grant of tenancy after reconstruction of
the flats therein and placing reliance thereon the tenants having
deposited the amount demanded from them and acted upon the promise
l
to their detriment, the respondents shall be declared to be estopped
G
from ejecting the tenants from the demised respective portions leased
out to them.
The appeal was contested on behalf of the respondents by contend·
ing that when right, title, and interest in immovable property stood
transferred by operation of law, the spirit behind Section 109 of the
H
A
B
c
D
E
828
SUPREME COURT REPORTS
[1990) 3 S.C.R.
Transfer of Property Act will apply, and the successor-in-interest would
be entitled to the rights of the predecessor and that as the Estate Man- "-
ager bad no authority to give a promise, and that even assuming that he
had such a power, it was a conditional one, namely, approval by the
Board, and that the Board having resolved to reject the claim, and on
reconstruction decided to allot to its own employees out of administrative necessity, the principle of promissory estoppel cannot be applied.
Dismissing the appeal, this Court,
HELD: I. When right, title and interest in immovable property
stand transferred by operation of law, the spirit behind Section 109 of
the Transfer of Property Act per force would apply and successor-ininterest would be entitled to the rights of the predecessor. This is what
the Single Judge of the High Court has held and the view is approved as
correct. The notice terminating the tenancy of Vasantkumar would
enure to the benefit of the respondent and it could be availed of by the
respol)dent to lay the suit for ejectment. [836H; 837 A-Bl
N. P. K. Raman Menon v. Collector of Malabar, AIR 1924
Madras 908; Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil
& Ors., [1962) Suppl. I SCR 700; Hitkarini Sabha v. The Corporation
of City of Jaba/pur & Anr., [1973] I SCR 493 and Lower v. Sorrell,
[ 1963] l Queen's Bench Division 959, referred to.
Gurumurthappa v. Chickmunisamappa, AIR 1953 Mysore 62,
over-ruled.
-
,.
Halsbury's Laws of England, 4th Edition, Vol. 27, p. 193; Hill
-
and Redman in Law of Landlord and Tenant, 17th Edition Vol. I, p. - ~
F
488, p. 405; Mui/a-Transfer of Property Act, 6th Edition, p. 676 and
Chita/ey's Transfer of Property Act, 4th Edn. 1969, Vol. III, Note 35,
~
referred to.
2(i) The functionaries under both the State Act and the Central
Act are the same. The notice was issued by the Assistant Estate
G
Manager by virtue of his official function as power of attorney agent on
behalf of the respondent. The Board of Trustees have the right to terminate the lease under Section 26 of the State Act and these rights stood
transferred and vested under Section 29(1) of the Central Act. Therefore
the termination of tenancy and laying the action for ejectment are integrally connected with their official capacity. There is a reasonable conH
nection between the impugned acts and officials duty. Thereby, they are
the acts done under the Central Act. [839C-E)
J
V.R. VORA v. BOARD OF TRUSTEES
829
2(ii) The notice under Section 106 and Section lll(h) of the
) Transfer of Property Act is an act done or purported to have been done
· in the official capacity as Power of Attorney holder /Assistant Estate
Manager on behalf of the respondent, Board of Trustees; the right to
lay the suit on expiry of one month's period prescribed in the notice,
namely, on or after February 28, 1975 had accrued to the respondent. It
is an act done or purported to have been done under the Central Act in
exercise of the official function. The right to lay the suit on determination of the tenancy by notice dated January 20, 1975 under the State Act
Y-is a transfer of interest by operation of Section 29(1) of the Central Act,
to the respondent under Section 109 of the Transfer of Property Act.
Thereby the quit notice is valid. The suit laid, pursuant thereto, is valid
and legal. Accordingly order of ejectment passed by the Small Cause
Court is perfectly legal and unassailable. [840B-EI
~·
Commissioner for the Court of Calcutta v. Abdul Rahim Osman
& Co.; Trustees of Port of Bombay v. The Premier Automobiles Ltd. &
Anr., [1974] 3 SCR 397, referred to.
3(i) The doctrine of promissory estoppel is now well established
one in the field of administrative law. This principle has been evolved
by equity to avoid injustice. It is neither in the realm of contract nor in
the realm of estoppel. Its object is to interpose equity shorn of its form
.. ,, to mitigate the rigour of strict law. This doctrine would be displaced in
a case where equity would not require that the Government should be
held bound by the promise made by it. But the Government must be
able to show that in view of the facts as have been transpired, public
interest would not be prejudiced. Where the Government is required to
carry out the promise the Court would have to balance, the public
interest in the Government's carrying out the promise made to the
citizens, which helps citizens to act upon and alter his position and the
f public interest likely to suffer if the promises were required to be
· carried out by the Government and determine which way the equity
lies. [841B; 842G-H; 843A]
A
B
c
D
E
F
3(ii) The doctrine of promissory estoppel would equally apply to a
private individual as well as a public body like a Municipal Council. It· G
cannot be applied in the teeth of an obligation or liability imposed by
law. It cannot be invoked to compel the Government to do an act
t prohibited by law. There may he no promissory estoppel against exercise of legislative functions. [843B-C]
3(iii) Promissory estoppel cannot be used for compelling the
H
A
B
c
D
E
830
SUPREME COURT REPORTS
I 1990] 3 S.C.R.
Government or a public anthority to carry ont a representation or
promise which is prohibited by law or which was devoid of the authority <
or power of the officer of the Government or the public authority to
make. It being an equitable doctrine it must yield place to the equity, if
larger public interest so requires and if it can be shown by the Government or public authority, for having regard to the facts as they have
transpired that it would be inequitable to hold the Government or
public authority to the promise or representation made by it. [8448-D J
3(iv) Promissory estoppel should not be extended, though it may
be founded on an express or implied promise stemmed from the conduct
or representation hy an officer of the State or public authority when it
was obtained to play fraud on the Constitution and the enforcement
would defeat or tend to defeat the Constitutional goals. [844D I
l.{nion of India v. Inda Afgan Agencies, [1968) 2 SCR 366;
Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, [1970] 3 SCR 854; Motilal Padampat Sugar Mills v. State
of Uttar Pradesh, [1979] 2 SCR 641; Jeet Ram v. State of Haryana,
[1980] 3 SCR 689; Union of India v. Godfrey Philips India Ltd., [1985)
Supp. 3 SCR 123 at 144; State of Bihar v. Usha Martin Industries Ltd.,
[1987] 65 STC 430 and Asstt. Commissioner of Commercial Taxes,
Dharwar v. Dharnendra Trading Co. etc. etc., [1988] 3 SCR 946, referred to.
4. Before making the public authority responsible for act of Its
subordinate, it must be established that the subordinate officer did in
fact make the representation and as a fact, is competent to make a
binding promise on behalf of the public authority or the Government,
ultra vires acts do not bind the authority and insistence to abide by the~
F
said ultra vires promise would amount to putting premium and legitimacy to ultra vires acts of subordinate officers. [847D-E)
t
Howell v. Falmouth Boat Costruction Co. Ltd, [1951] AC 837 and
Attorney Genera/for Ceylon v. A.D. Silva, [1953) AC 461, referred to.
G
5. The letter dated April 3, 1972 written by the Estate Manager is
a conditional one, namely, that on fulfilling certain conditions indicated
in that letter he would make recommendation to the Board for grant of
lease, condition precedent being that the tenant would deposit the 1
required sum of about Rs.ll,000 and odd with the respondent.
Undoubtedly, the tenants completed that part of the obligation. ThereH
after it was placed before the Board, who by resolution dated
-
V.R. VORA v. BOARD OF TRUSTEES [K. RAMASWAMY, J.I
831
September 10, 1974, considered it, but was rejected on the ground that
. after reconstruction the building would be required by its staff. [845C-E]
/-
6. The Estate Manager is merely an intermediary to collect the
material between the respondent Port Trust and its tenants and to place
the material for consideration to the Board. Thereby the Estate
Manager is not clothed with any authority much less even ostensible
authority to create a promise so as to bind the respondent, that the
respondent would allot the rooms on reconstruction to the tenants. The
T-: promise of him is an ultra vires act, though conditional and, therefore.
it does not bind the respondent. Though the executive necessity has not
been satisfactorily established, the doctrine of promissory estoppel cannot be extended in favour of the appellant and other tenants. [847E-G I
7. When a constitutional question has been raised and does arise
for consideration, unless there is a fulldressed argument addressed by
either side before this Court no satisfactory resolution could be made.
Mere paraphrasing the judgment of the High Court in particular when
it relates to the local laws is no proper decision making. [849A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1348
of 1990.
A
B
c
D
From the Judgment and Order dated 23. 7. 1985 of the Bombay
"High Court in W.P. No. 3144 of 1981.
E
H.C. Tunara, J.A. Karia and M.N. Shroff for the Appellant.
Ashok H. Desai, Solicitor General. U.J. Makhija, B.S. Bisaria.
"--Mrs. A.K. Verma and Vivek Dholakia for the Respondents.
l
V.N. Ganpule, V.N. Patil and A.S. Bhasime for the State of
Maharashtra.
The Judgment of the Court was delivered by
F
K. RAMASWAMY, J. 1. The respondent is a statutory body G
corporate initially constituted under the Bombay Port Trust Act, 1879
(Bombay Act 6 of 1879), for short 'State Act'. Under Sec. 26 thereof,
-l the Board has power to acquire and hold movable and immovable
· property and also has power to lease, to sell or otherwise co?vey
movable and immovable property which may have become vested m or
acquired by them. The respondent has appointed A.J. Mescarnas, H
832
SUPREME COURT REPORTS
[ 1990] 3 S.C.R.
.
A
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 bearinf'-
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
Radhakisan Vora, for short 'Vasantkumar'. The appellants are his
B legal representatives. He was served with a notice under Sec. 106 read
with s. 1 ll(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
C 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 s. 133 (2A) with effect from February 1, 1975. After the
expiry of one month, ejectment application was filed under s. 41 of the
D Bombay Presidency Small Cause Courts Act (Act 15 of 1882) as amended
under 1963 Maharashtra 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
E possession of the demised portions. The plea of Vasantkumar in his '
written statement eleborated 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 Section lll(h) of Transfer of Property Act became ineffective and without determining the tenancy afresh, the suit was not .
F validly laid. It was also pleaded that the respondent had promised that
in 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.
G 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 Act 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 Smalt
H Cause Court and are stated to be pending.
-.
V.R. VORA v. BOARD OF TRUSTEES [K. RAMASWAMY, J.}
833
2. In the writ petition the petitioner challenged the vires of 1963
A
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 it to a Division Bench. The Division
Bench by its judgment dated January 17 /18, 1982 up-held the constitutional validity of those sections and remitted to the learned Single
Judge to dispose of the writ petition on merits. The learned single
B
Judge considered and negatived two points namely, validity of the
notice terminating tlie 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.
C
lll(h) of the T.P. Act is invalid. By issue of quit notice no right had
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 immovable property
D
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. 1 ll(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 admittedly no quit
E
notice determining the tenency was issued after February 1, 1975. The
edifice of the argument was built up on shifting sand and when it was
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:
F
" ...... nothing herein contained shall be deemed to affect
save as provided by Sec. 57 and Chapter IV of this Act, any
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 immovable property, if it is for agricultural or manufacturing
purpose by giving six months notice and terminable on the part of
either lessor or lessee, by giving fifteen days' notice expiring with the
end of the month of the tenancy. Section lll(h) provides that, "on the
expiration of a notice to determine the lease, or to quit, or _of intentioit
G
H.
A
B
c
834
SUPREME COURT REPORTS
[1990] 3 S.C.R.
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 part 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, subje~ 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.
4. Reading of these fascicule of provisions clearly demonstrates
that a lessee of immoveable property from month to month is terminD able by giving fifteen days' notice or as per the terms of the contract of
the lessee. (In this case the contract provides to give one month's
notice). On expiry of one month from the date of receipt of the notice
the lease shall stand terminated. The lessor's right on transfer of the
immoveable property including the lease hold rights created on the
property sold, the transferee, in the absence of contract to the conE trary, shall possess all the rights and if the lessee so efects, be subject "
to all the liabilities of the lessor as to the property or part thereof so
long as he is owner of it. But by mere transfer the lessor shall not cease
to be subject to any liabilities imposed upon him by contract of lease
unless the lessee elects to treat the transferee as the person liable to
~.
,.
F
5. Undoubtedly, by issuance of notice to quit automatically the
right created thereunder, namely, cessation of the lease, does not
become effective till the period prescribed in the notice or in the
statute i.e. Sec. 106 expires. On expiry thereof the lease becomes
inoperative and the lessor acquires right to have the tenant ejected.
G
When he fails to deliver vacant possession, the lessor would be entitled
to have the tenant ejected and taken possession in due process of law.
The successor in interest whether acquires these rights and the rights
acquired by lessor would enure for his benefit is the crucial question.
6. In Halsbury's Laws of England, 4th Edition, Vol. 27, paraH
graph 193 discussed the right accrued to the transferee of the benefit of
)
-
···----------------------------------.
V.R. VORA v. BOARD OF TRUSTEES [K. RAMASWAMY, J.)
835
-f· the notice to quit issued by the predecessor in title thus: ·
''The notice when once given enures for the benefit of the ·
successors in title of the landlord or tenant giving it.'.' ' . .""
: ;
·. - 'i ! : , ., '' -, ) '. ., ~
A
. Hill and Redman . in "Law of Landlord and Tenant", 17th
't~dition, Vol. I, at page 488, paragraph 405 have stated to the similat
B
tact thus: . " .. · ·. ·
, · · · · . ·.
·
•. · . •.· .
• · · ·: · · ·. : ·. ••.
''The notice when once given enures for the benefit of the
successor in title of the landlord or tenant giviog it.''• . ·
:; -
-·
. -· -
In Mulla's commentary. on the Transfer of Property Act, 6th
Edition, at page 676 it is also stated thus:
• ·
· ·
''.-"
· "Notice enures for the benefit of the successor in title of
the lessor or lessee giving it.'' :· ..
c
,;.
In Chitaley's Transfer Property Act, 4th Edn., 1969; Vol. III,
D
Note35,itisstatedthus:
, ..
· ·..
:: .
··";;
, , ; ."Where the lessor gives notice to quit and then assigns his
interest to another the assignee can take advantage of the
-·notice."~ -
.·,--{
/ _ ;:._.•'.:·:
1:_.·
·!: ·:: ~., :..-d :;:.,.i - ;,,:;.
·.,In N.P.K .. Raman Menon v. Collector of Malabar, AIR' 1924
Madras 908 a Division Bench of the Madras High Court held that:' ;. , ';
"English cases recognise that the person who is the.land•
•: lord and entitled to possession; on the date of the notice to
E
· · quit, is the proper person to give the notice and that an p
. assignee : within 'the currency of that notice i cim ; take
. advantage of the notice sent by his assignor and rely upon .
.J.···
, it, when he brings a suit for recovering possession';; <c'', ·.'
- ·: ..
__ ; .-. . .
·;.:; -...
·- .. '
-·- ; - '
7. No doubt Mr;Tunara placed strong reliance on the decision
of Trimbak Damodhar Raipurkar v;'Assaram Hiraman Patil & Ors.;•
G
[ 1962) Suppl. 1 SCR 700. The facts therein are that in .1943 a lease on
agricultural land for five years was created. Before the expiry thereof
Bombay Tenancy Act, 1939 was made applicable to the area where the
'} land was situated and under Sec. 23(1){b) of that Act the period of
lease was statutorily extended to ten years. During the subsistence of
the contractual tenancy it was statutorily extended and the Bombay
H
•
A
836
SUPREME COURT REPORTS
I 1990] 3 S.C.R.
Act 67 of 1948 came into force. In March 1952 notice was given to the
tenant that the tenancy expired on March 31, 1953 and called upon the
tenant to deliver possession. In the meanwhile the Bombay Act 33 of \.
1952 came into force. Its effect was that the lease automatically stood
extended for ten years from time to time, unless terminated by giving
one year's notice averring that the land was required boan fide by the
B landlord for personal cultivation and that income would be the main
source of income of the landlord. It was contended that since 1952
Amending Act was not retrospective, the technical requirement of
notice to quit do not apply. The question was whether the landlord was . _ __, ..
entitled to eject the tenant without complying with the statutory
requirement. In that context it was held by the Constitution Bench
C
that by operation of the statutory provisions the period of lease of 10
years from time to time was automatically extended unless the tenancy
was validly terminated by giving a notice of one year or surrender was
made by the tenant as specified in the statute. The ratio therein has
little application to the facts of this case. In Hitkarini Sabha v. The
Corporation of City of Jaba/pur & Anr., I 1973] 1 SCR 493 the lease
D was granted by the Administrator without authority under the Statute.
Therefore, the lease was held to be void. The notice as required under
T.P. Act was held to be mandatory, but was not done. Therefore the
lease was subsisting and thereby as his land was acquired the tenant
was entitled to compensation pro rata under Section 11 of the Land
Acquisition Act. We are at a loss to understand, how the ratio thereE
under will be of any assistance to the appellant. In Lower v. Sorrell, "
[ 1963] 1 Queen's Bench Division 959 the question therein was whether
the notice to quit was a valid notice. Admittedly, second notice was
given before the expiry of the first notice. It was held that when such
notice were issued withdrawing the first notice by issuance of the second notice, a new tenancy has been created for the tenant to remain in
F
possession until the expiry of the later notice on September 29, 1961,
to which the tenancy sections 2(1) and 23(1) of the Agricultural Holdings Act, 1948 would apply. Accordingly it was held by the Court of +
Appeal that there was no valid notice to quit. The ratio therein also is
of no avail to the appellant. No doubt in Gurumurthappa v. Chickmunisamappa, AIR 1953 Mysore 62 a Division Bench of Mysore High
G
Court held that the successor in interest is not entitled to avail the
notice to quit given by the original landlord. In the light of the above
discussion this view is not good law.
8. It is no doubt true that per se sec. 109 of T.P. Act does not ,)
apply to the facts of this case. It contemplates transfer of lessor's right
H inver vivas. But when right, title and interest in immoveable property
-
V.R. VORA v. BOARD OF 1RUSTEES [K. RAMASWAMY, J.]
837
. stand transferred by operation of law, the spirit behind Sec. 109 per
/force would apply and successor in interest would be entitled to the
rights of the predecessor. This is what the learned single Judge of the
High Court in the impugned judgment has held and we approve of the
view as correct. We, accordingly, hold that the notice terminating the
tenancy of Vasantkumar would enure to the benefit of the respondent
and it could be availed of by the respondent to lay the suit for
ejectment.
~c.
....
, ",1. 9. The matter could also be gleaned through the statutory operation as well. By operation of Sec. 26 of the State Act, the Board of
Trustees acquired and held the demised property which includes lease
,
hold interest therein. Section 29(1) of the Central Act interposed and
from February 1, 1975 the appointed date, in relation to Bombay
Port all the movable and immovable property, assets and funds of the
~predecessor Board shall vest in the Board, i.e. the respondent. By
operation of Clause (b) thereof all debts, obligations and liabilities
incurred, all co11tracts entered into and all matters and things engaged
to be done, by with or for the Central Govt., or as the case may be, the
other authority (i.e. predecessor Board under State Act) immediately
before such day, for or in connection with the purposes of the port,
"shall be deemed to have been incurred, entered into and engaged to be
done by, with or for the Board." It further postulates that all rates,
..fees, rents and other sums of money due to the Central Govt., or as the
case may be, the other authority (i.e. the predecessor Board) in relation to the port immediately before such day shall be deemed to be due
to the Board, i.e. the respondent. Other clauses are not necessary.
Hence omitted. Thereby by operation of Sec. 29( l)(b) the immovable
....
p~operties, i.e. demised rooms and all contracts in relation thereto
.. including the lease and the right to ejectment pursuant to quit notice
stood transferred to the respondent.
.l.
Sub-section 2(A) of Sec. 133 'Repeal' of the Major Port Trusts
Act, 1963 states that on the application of the Central Act to the Port
of Bombay, except the provisions thereof relating to municipal assessment of the properties of the port of Bombay and matters connected
therewith, shall cease to have force in relation to that port. But subclause ( c) of sub-section (20) of Sec. 133 provides that notwithstanding anything contained in sub-section (2A) (2B) and (2C) anything
tlone or any action taken or purported to have been done or taken
including ....... notice ........ issued ...... shall, in so far as it is
not inconsistent with the provisions of this Act, be deemed to have
been done or taken on the corresponding provisions of this Act. By
A
B
c
D
E
F
G
H
A
B
838
SUPREME COURT REPORTS
(1990] 3 S.C.R.
operation of Sec .. 29(1)(a) & (b }read with Sec. 133(2A) the quit notice
conceminj! the vested immovable property i.e. the demised rooms\
vested in the respondent shall be deemed to have been done or taken
under Sec. 29(1) and Sec. 133(2A)(C) of the Central Act. There is no·
inconsistency between the Central and the State Acts in this regard.
Section 6 of the General Clauses Act, 1897 postulates the effect of
repeal thus:
'Where this Act or any (Central Act) or regulation made _,,-
after the. co.mmencement of this Act, repeals any enact- - ·
c
0
. \
. ment hitherto made or hereafter to be made, then, unless a
.different intention appears, the repeal shall not-
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder' or
(c) affect any right; privilege, obligation or liability acquired, accrued o~ incurred under any enactment so. repealed;
or ..... .
any such investigation, legal proceedings or remedy
may be instituted, continued _or enforced ....... as if the
repealing Act or Regulation had not been passed."
E Section 17(1)provides under:
·i
"In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient for the purpose
-
of indicating the application of a law to every 'person or --
number of persons for the time being executing the func- · ,.
lions of an offiCe, tci mention the official title of the officer
·
at present executing the functions of an office, or that of -1.
the officer by whom the functions are commonly executed."
'
"'(
.. ·.
Section 17 of the General Clauses "Act sub~tiiutes the functionaries
under the .Central _Act' to those of the· functionaries under the State
G
Act. Section 6 gives effect to the previous operation of anything don.e
'' or subsists th~ r_ight acquired or privilege accrued under the Repealed
Act and the legal proceedings of remedy may be instituted, continued
or enforced as ifthe repealing Act had not been passed. Therefore, theJ
operation, efficacy .and effectiveness of the quit notice issued by the
power of attorney Agent of the· respondent i.e. the Asstt. Estate
"'I
Manager has bee11 acquired by the respondent Board. The rights and
•.
V.R. VORA v. BOARD OF TRUSTEES IK. RAMASWAMY, J.I . 839
remedy accrued to the respondent under the State Act namely termi·
) _nation of tenancy by issue of ~uit notic~ under Sec. 106 and 11 l(h) of
T.P. Act and on expiry of thuty days 1.e. on February 28, 1975 the
respondent Board became entitled to institute.the proceedings in the
suits to have the tenants ejected under Sec. 41 of the -Provincial Small
Cause Courts Act.
10. The contention of Mr. Tunara that the Central Act and the
General Clauses Act would apply only to the acts done under the
-...,::; Central Act or State Act, by exercise. of the :staturory power- which
alone have been validated and they have no application to bilateral'
acts under Central Act and the notice under Sec. 106 ofT,P. Act is not
the one either under the Central or the State Act and that the notice
issued is not saved, is devoid of force. The Board of Trustees under the
State Act have merely changed their hats and stand transposed to be
functionaries under the Central Act, The functionaries under both the
Acts are the same. The notice .was issued by the Asstt.· Estate Manager
hr virtue of his official function as power of attorney agent on Mhalfof
A
B
c
the respondent. The Board of Trustees have the.right to· terminate the· D
lease under.Sec. 26 of the State Act and those rights stood transferred
and vest.ed under Sec. 29(1) of the Central Act. Therefore, tlie te'rmi·
nation of tenancy and laying .the action for ejectment are integrally
connected with their official capacity. There is a reasonable·c<innec··
tion between the impugned acts and official duty. Thereby, they are
Y the acts done undeMhe Central Act. In.Commissionerfor the Court of E
Calcutta v. Abdul Rahim Osman & Co . ., Sec. ·14:Z.of the Calcutta ·Port
Act came up for interpretation. Thereunder it was. contended. that ·
short delivery of the goods was an omission:and not: an act-done under·
the Act and though the suit was laid beyond three months, it was not ·
... __ ·barred by limitation. Section 142 enjoins that.no suit shall be ··brotight
in for anything done or purported to have been .done beyond three
p
months. It was held that after the. expiry of three months from the day 0
1 · on which the cause of action had arisen for short delivery' which was'.
done. or purported to have bee11 done under the Act;•the suit'w~s ·
barred by limitation. It was.further held thatin·order to·apply any bat''
under Sec. 142 it was first to determine whether the·act whicll is"complr'.
lained of in the suit can be .said to ha1/e been within the« scope' Of the· 1 G
official duty of the person or persons who are sought to be made-liable: '·
This question can be answered in the affirmative where there is•a•
reasonable connection between the act and the discharge of the official'
.l duty. Once the scope of official duty,is determined1 Sec'' 142 Wiir
protect the defendant not only from a claim based on breach of the
duty but also from a claim based upon: an. omissiofr te perfohil· such
H. ·
840
SUPREME COURT REPORTS
[1990] 3 S.C.R.
A duty. The protection cannot be held to be confined to acts done in the
exercise of a statutory power bμt also extends to acts done within the \_
scope of an official duty. This view was upheld in Trustees of Port of
Bombay v. The Premier Automobiles Ltd. & Anr., [1974) 3 SCR 397
where there was short delivery of one bundle out of 153 bundles conB
c
signed from Japan and omitted to be delivered and it was held to
constitute an act done within the ambit of Sec. 87 of the Bombay Port
Trust Act, 1879 and the bar of limitation prescribed thereunder would
apply. Thus we have no hesitation to hold that the notice under Sec.
_ -r
106 and Sec. lll(h) of the Transfer of Property Act is an act done or
purported to have been done in the official capacity as Power of
Attorney holder/Asst!. Estate Manager on behalf of the respondent,
Board of Trustees; the right to lay the suit on expiry of one month's
period prescribed in the notice, namely, on or after February 28, 1975
had accrued to the respondent. It is an act done or purported to have
been done under the Central Act in exercise of the official function. . _
The right to lay the suit on determination of the tenancy by notice
dated January 20, 1975 under the State Act is a transfer of interest by
D
operation of Sec.