JAMSHED HORMUSJI WADIA v. BOARD OF TRUSTEES, PORT OF MUMBAI AND ANR

Citation: [2004] 1 S.C.R. 483

Court: Supreme Court of India

Bench: R.C. LAHOTI, BRIJESH KUMAR

Case summary

JAMSHED HORMUSJI WADIA v. BOARD OF TRUSTEES, PORT OF MUMBAI AND ANR.pdf

Judgment text

JAMSHED HORMUSJI WADIA -"( V. BOARD OF TRUSTEES, PORT OF MUMBAI AND ANR. JANUARY 13, 2004 [R. C. LAHOTI AND BRIJESH KUMAR, JJ. ] Rent Control and Eviction: Major Port Trust Act, I963/Constitution ofIndia, 19j0; Articles 12 and 14/Code of Civil Procedure, 1908; Order. I Rule 8 and Order 41 Rule 22: Bombay Port Trnst!

Board of Trustee-Lessees-Revision of Rent and terms and conditions thereof-Engaging of consultant for valuation of the land-Acceptance of Report-Fixation of fair market rates-Notices for termination of tenancy/payment ofrevised rent-Challenge to-Single Judge ofthe High Court struck down the notices-In appeal, Division Bench directing the Board to formulate a formula for fixation of rent-Formula/compromise (, proposal-Approved by the Division Bench-Challenge to-Held: Bombay Port Trust is an instrumentality ofState, hence an authority-States have to act just and fair in conformity with Article 14 of the Constitution whether acting as a landlord/tenant-State is empowered to raise rent to the extent to compensate the loss caused by injlationmy tendencies including increased cost of maintenance/taxes/administrative expenses but not allowed to earn profit/unreasonable eviction-Revision ofrate ofrent, recove1y ofarrears and levy of interest thereon could be decided on the basis of the compromise proposal/formula with certain modifications in the rate of interest on the arrears of rent-Direction issued.

• 1 Revision in Rent as per compromise proposal-Relaxation-Held: since the appellant/tenant could neither make use of the entire property nor could develop it fidly owing to its peculiar location and surrounding status and nature of land held by him which find support from documentmy evidence! Report ofthe consultants, hence deserves some relaxation-Such other tenants could also file representations-The representations would be adjudicated by an Adjudicator to be appointed by the High Court. Cross-objection in appeal under Article 136-Va/idity of-Held: crossobjection does not lie. Constitution of lndia: Article 136 ofthe Constitution-Scope of-Held: it confers discretionarJ' power on the Supreme Court to inte1fere in suitable cases-Selfimposed restrictions placed as fetters-Could not restrict the Court from leaping into resolution of controversies-However, the jurisdiction of the Court remains an extra ordinary jurisdiction, whether exercised in granting /eave/deciding the appeal.

Civil Procedure Code, 1908: Order 41 Rule 22-Scope of-Discussed. Respondent, Bornbay Port Trust (BPT), known as Board of Trustee holding huge land, a part of which was under intensive use for its own activities and rest of the land was in occupation of a large number of lessees holding leases of various tenures and leases were created long back. The lease rent was revised upward from time to time. Later, in 1962, the World Bank as well as the Comptroller and Auditor General of India advised the Board to secure a fair and reasonable revenue for its estate to perform its public duties effectively. The board undertook a massive exercise for the revision of rent and also the terms and conditions of the ..... . ; leases and engaged a consultant. A draft report submitted by the consultants was accepted by the Board after serious deliberations on the subject.

Following up the recommendation, notices were issued to lessees for termination of tenancy, payment of revised rent with arrears and interest thereon. Aggrieved, lessees challenged the revision in rent as not reasonable and fair. Single Judge of the High Court held that the proposed revision and demand of rent did not breach the provisions of the Major Port Act; 1963. However, he opined that the revision in rent was arbitrary and capricious and violative of the constitutional restraint on the Port Trust in the capacity of an instrumentality of the State and notices were struck down. In appeal, the Division Bench of the High Court directed the Board to formulate a formula for revision in rents. The Board arrived at a formula termed as compromise proposal. The Division Bench of the High Court issued notices to the lessees in terms of Order I Rule 8, C. P. C. and finally approved the compromise formula.

Some of the lessees, including the appellant, felt aggrieved, and filed the special leave petitions. Disposing of the petitions, this Court remanded the case to High Court for decision afresh in the light of certain directions. H! gh Court directed the Board to go ahead with the fixation of rent complying with certain instructions/observations. Hence the present appeals. J. H. WADIA 1·. BOARD OF TRUSTEES, PORT OF MUMBAI 485 Disposing of the appeals, the Court HELD: I. I. The Bombay Port Trust is an instrumentality of State and hence an 'authority' within the meaning of Article 12 of the Constitution. The position of law is settled that the State and its authorities including instrumentalities of States have to be just, fair and reasonable in all their activities including those in the field of contracts.

Even while playing the role of a landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India. 1501-A; 502-B, CJ Mis. Dwarkadas Marfatia and Sons v. Board ofTrustees ofthe Port of Bombay, 11989] 3 SCC 293, relied on. 1. 2. In the field of contracts the State and its instrumentalities ought to so design their activities as would ensure fair competition and nondiscrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. The State and its instrumentalities, as the landlords, have the liberty of revising the rates of rent so as to compensate , >- ' ' themselves against loss caused by inflationary tendencies. They can - and rather must - also save themselves from negative balances caused by the cost of maintenance, and payment of taxes and costs of administration.

The State, as landlord, need not necessarily be a benevolent and good charitable Samaritan. The felt need for expanding or stimulating its own activities or other activities in the public interest having once arisen, the State need not hold its hands from seeking eviction of its lessees. However, the State cannot be seen to be indulging in rack-renting, profiteering and indulging in whimsical or unreasonable evictions or bargains. 1503-G, H; 504-A, BJ P. J. Irani v. State ofMadras and Anr. , AIR (1961) SC 1731, followed. Mis. Dwarkadas Maifatia and Sons v. Board ofTrustees ofthe Port of Bombay, ! 19891 3 SCC 293; Baburao Shantaram More v. Bombay Housing Board, ! 19541SCR572 and Kumari Shrilekha Vidyarthi etc. etc. v. State of UP. and Ors.. ! 199111 SCC 212, relied on. Ratti Palonji Kapadia and Anr. v. State ofMaharash1ra and Ors. , (1992) Born. L. R. 1356, referred to. 1. 3. A balance has to be struck between the two extremes.

Having been exempted from the operation of rent control legislation the courts )... \ cannot hold the State and its instrumentalities tied to the same shackles from which they have been freed by the legislature in their wisdom and thereby requiring them to be ruled indirectly or by analogy by the same law from which they are exempt. Otherwise, it would tantamount to defeating the exemption clause consciously enacted by the Legislature. At B. the same time the liberty given to them by the statute enacted under the Constitution does not exempt them from honouring the Constitution itself. They continue to be ruled by Article 14. The validity of their actions in the field of landlord-tenant relationship is available to be tested not under the rent control legislation but under the Constitution. The rent control legislations are temporary, if not seasonal; the Constitution is permanent and all time law. 1504-C, D, El 2. 1.

In an appeal by special leave under Article 136 of the Constitution, cross objections do not lie; the Board having given a proposal to the Court though on being prompted by the Court to do so, it should not be permitted to beat a retreat and withdraw from the compromise proposals or lay challenge to it in the facts and circumstances of the case. . (, ' The compromise proposals have been held to be fair, just and reasonable, • l and challenge to it is devoid of any merit; the issue as to compromise proposals stands implicitly circumscribed by the order of remand passed by this Court and cannot be allowed to be reagitated at this stage. 1510-D, E, Fl Alopi Nath and Ors. v. Collector, Varanasi, 119861 Supp. SCC 693, referred to. 2. 2. In an appeal under Article 136 of the Constitution, the respondent cannot file cross-objections. If the judgment of the High Court • was partly against the respondent, it was for it to have filed an application seeking leave to appeal.

That right having been foregone by it and the period of limitation having expired, the cross-objections cannot be entertained. In the instant case, filing of cross-objections by a respondent in this Court is an attempt at exercising the right of filing an application for special leave to appeal after the expiry of limitation and in a manner not contemplated by Article 136 of the Constitution. 1515-G, H; 516-AI Municipal Corporation ofDelhi and Ors. v. Jntnl. Security & Inteliigence Agency Ltd. , JT (2003) 2 SC 103; Superintending Engineer and Ors. v. B. Subha Reddy, 1199914 SCC 423 and Vashist Narain Sharma v. Dev Chandra J. H. WADIA r. BOARD OF TRUSTEES, PORT OF MUMBAI 487 and Ors, [19551 1 SCR 509, referred to. Sri Babu Ram v. Shrimati Prasanni and Ors. , 119591 SCR 1403, distinguished. 2. 3. It is well-settled that Article 136 of the Constitution does not confer a right to appeal on any party; it confers a discretionary power on the Supreme Court to interfere in suitable cases.

The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. When no law confers a statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right. That self-imposed restrictions placed as fetters on its own discretionary power under Article 136 have not hindered the Supreme Court from leaping into resolution of individual controversies once it has been brought to its notice that the judgment in case has failed to deliver substantial justice or has perpetuated grave injustice to parties or is one which shocks the conscience of the Court or suffers on account of disregard to the form of legal process or with violation of the principles of natural justice.

Often such are the cases where the judgment or decision or cause or matter brought to its notice has failed ~ to receive the needed care, attention and approach at the hands of the I • Tribunal or Court below, or even the High Court at times, and the conscience of this Court pricks or its heart bleeds for imparting justice or undoing injustice. The practise and experience apart, the framers of the Constitution did design the jurisdiction of the Court to remain an extraordinary jurisdiction whether at the stage of granting leave or at the stage of deciding the appeal itself after the grant of leave. 1512-D, E; 513-D, E, Fi Pritam Singh v. The State, [19501SCR453 and The Bharat Bank Ltd. , Delhi, v. Employees ()f the Bharat Bank Ltd. , Delhi and The Bharat Bank •• Employees Union, Delhi, [19501SCR459, followed. Mis. Bengal Chemical & Pharmaceutical Works Ltd. , Calcutta v. Their Workmen, [19591 Suppl. 2. SCR 136; State of Bombay v. Rusy Misl! J' and Anr.

, AIR (1960) SC 391 and Basudev Hazra v. Matiar Rahaman Manda/, [197111 SCC 433; Arunachalam v. P. S. R. Sadanatham, [1979[ 2 SCC 297 and Subedar v. The State of UP. , 119701 2 SCC 445, relied on. - 3. This Court in a number of decided cases has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision u11der appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. This is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to Courts of superior jurisdiction.

A person who has entirely succeeded before a Court or Tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words 'person aggrieved'. In an appeal or revision, as a matter of general principles, the party, who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. The exercise of appellate jurisdiction under Article 136 of the Constitution is not dependent on the provisions of Order 41 of the CPC. The Court may frame rules governing its own procedure and practice.

No such rule has been framed by the Court which entitles or permits a respondent to file a cross-objection. [513-G, H; 514-A, B, C; G, H[ Ramanbhai Ashabhai Patel, [1965[ I SCR 712; Management of Northern Railway Co-operative Soceity ltd. , [1967] 2 SCR 476; Bharat Kala Bhandar ltd. v. Municipal Committee, Dharman Gaon, [1965] 3 SCR 499; Na/akath Sainuddin v. Koorikadan Sulaiman, [2002] 6 SCC I and Banarsi and Ors. v. Ram Phal, JT (2003) 5 SC 224, referred to. 4. All the appeals are disposed of in terms of the directions. 5. Issue as to the applicability of the Maharashtra Rent Control Act, .. 1999, to the Port of Mumbai and the property held by it left open to be decided in appropriate proceedings. [516-F; 519-B[ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5559 of 2001. From the Judgment and Order dated l. 8. 2000 of the Bombay High Court in A. No. 258/91 in W. P. No. 35 of 1983. -- WITH C. A. Nos. 5562, 5561, 5563-64, 5565-66, 5567-68/2001, 209, 207/ J. H.

WADIA LllOARD OF TRUSTEES, PORT OF MUMBAI [LAHOT! , J. ] 489 R. N. Trivedi, Additional Solicitor General, F. S. Nariman, R. F. Nariman, Dushyant Dave, Gopal Subramanium, V. A. Mohta, Harish N. Salve (NP) Yashank P. Adhyaru, Sameer prarekh, Darjus Khumbatta, Ms. Sweety Manchanda, P. P. Mohanty, Ms. Jina Mullick, Gaurab Banerjee, Ms. Nandini Gore, Ms. Ruby Singh Ahuja, R. N. Karanjawala, Rajesh Kumar, Ms. Meghna Sati, Mrs. M. Karanjawala, Vivek Shara, P. Venugopal, P. S. Sudheer, Rajiv Tyagi, Tapes Tyagi, Shivaji M. Jadhav, Sunil Kr. Verma, Himanshu Gupta, S. Barthakur for Sunil Kumar Jain, H. Devarajan, V. Ramaswamy, Ms. Happy, P. N. Gupta, Aarohi Balla, Ms. Sujata Kurdukar, Vibhu Bhakru, P. N. Puri, S. N. Singh, Vimal Chandra S. Dave, K. K. Rai, Bankey Bihari, J. B. Dadachanji, K. J. Gandhi, Buddy A. Ranganandhan, Ms. Sunita Sharma, K. J. Gandhi, V. N. Raghupathy, Mahesh Agarwal, Rishi Agarwal, E. C. Agrawala, Jay Savla, Ms. Reena Bagga, Ms. Mennakshi Ogra, Ms. Ruby Singh Ahuja, Ms.

Meghna Mishra, Vivek Sharma, Sandeep Kapur, Bharagava V. Desai, Sanjeev Kr. Singh, P. H. Parekh, P. N. Puri, S. Saini, V. Ramaswamy for D. Mahesh Babu, S. V. Deshpande, D. Mahesh Babu, S. R. Setia a. nd S. Udaya Kumar Sagar for the appearing parties. The Judgment of the Court was delivered by R. C. LAHOTI, J. Leave granted in SLP (C) Nos. 19877/01, 6064/02 & 8657102. The Bombay Port Trust (hereinafter 'BPT', for short), presently constituted and governed by the Major Port Trust Act, 1963, and now known as The Board of Trustees of the Port of Mumbai, is an 'authority' within the meaning of Article 12 of the Constitution of India. It has been the subject matter of several legislations governing its constitution, administration, powers and duties, some of which are The Bombay Port Trust Act, 1873, The Bombay Port Trust Act, 1879 and the Major Port Trust Act, 1963. Bombay, presently known as Mumbai, continues to be the commercial capital of the country.

In spite of the development of several other ports having taken place along the coasts of India, some of them being ofrecent origin, the Bombay port continues to be the Gateway of India for international trade and commerce. Space is scarce in Mumbai as it is an island, and demands on its land are heavy in i. view of the ever-growing industrial, commercial and economic activities. Due to the availability or continuously growing modern infrastructure at Mumbai large sections of the population from throughout the country continue to migrate to Mumbai, which, with its characteristically liberal metropolitan culture, open-heartedly accommodates anyone who seeks shelter in its arms. The Bombay Port Trust Estate, admeasuring around 720 hectares (1800 acres approx. ) of land is a huge stretch from Colaba to RaoIi junction, including Pir Pau, Butcher island, land at Titwala and other islands. The population is highly urbanized and dense.

Out of the total area of 720 hectares the area under the jurisdiction of Estate department of the BPT is around 336 hectares. Out of these, 306 hectares of area is occupied by the lessees of BPT holding leases of various tenures. Around 720 hectares of land was under intensive use for the Board's own activities around the year 1980. There were about 600 lessees. The lessees could broadly be divided into three categories: monthly or annual lessees, 15 years' term lessees, and 99 years' or long term lessees, with or without clauses for renewal. In case of monthly or annual leases, the municipal ta)fes are borne by the BPT, while in cases of l 5 years term and long term leases, the liability to pay municipal taxes is with the lessees. The BPT Estate cannot be sold; it is all held out on leases excepting for the land in the use of the Port and for Port activities i. e. for the self requirement of the BPT. Leases were created long back, some of which being around a century old.

The lease rents were revised and increased from time to time not as a matter of some uniform policy decisions but only by way of adhoc ;" (f) All other Estates : Rs. 12. 66 Letting rate for 'Home Occupation' may be at 20 per cent of the above rates, }. _ I t "t-- Letting rates for future years from I. I0. 1992 to 30. 9. 2012 for 'Non-Home Occupation' and 'Home Occupation' shall be as given in the Annexures". Notwithstanding the fixation of letting rates for 20 years for good and sufficient reasons, Board may review and revise the letting rates. (iv) Minimum rent may be for built up area upto 0. 5 FSI irrespective of whether the area is built up or not. Minimum rent from I. I0. 1982 to 30. 9. 1992 for non-hazardous trade/use will be Rs. 6. 33 per sq. metre per month and for POL and hazardous trade/ use will be Rs. 8 per sq. metre per month or for 0. 5. FSI of built up area, whicJ1ever is more.

The rent will increase proportionately to the built up area but maximum rent may not exceed the rent that would have ~en payable on the basis of Fair Market Rents recommended by K1rloskar Consultants Ltd. (v) In case of letting of BPT structures, the revised rate of rent per sq. metre of floor space may be at 2. 5 times the letting rates. The repairs and maintenance of the structure shall be done by the ;" i" Procedure, 1908, is at all maintainable in a civil appeal by special leave under Article 136 of the Constitution in this Court? No decision by this Court squarely dealing with the point has been brought to our notice. Alopi Nath J. H. WADIA i·. BOARDOF TRUSTEES, PORT OF MUMBAI [LAHOTl,J] 511 and Ors. V. Co/lee/Or, Varanasi. (1986] Supp. sec 693, too is not directly on the point but comes very near to it. A question as to the admissibility of cross-objections under a local law of Uttar Pradesh arose for the consideration of this Court. The U. P.

Municipal Corporations Adhiniyam, 1959, has constituted a tribunal with power and functions of the Court to deal with reference arising out of acquisition of land for U. P. Municipal Corporation under the Land Acquisition Act 1849. The Indian Evidence Act 1872 and the :I Code of Civil Procedure, 1908, apply to all proceedings before the Tribunal. Its decisions are final subject to appeal under sub-Section (1) of Section 381 which reads as under:- "381. Appeals-(1) An appeal to the High Court shall lie from decision of the Tribunal, if . (a) the Tribunal grants a certificate that the case is a fit one for appeal, or (b) the High Court grants special leave to appeal, provided that the High Court shall not grant such special leave unless the Tribunal has refused to grant a certificate under clause (a).

xxx xxx xxx (3) Notwithstanding anything contained in the foregoing provisions, no appeal shall lie under this section unless the appellant has deposited the money which he is liable to pay under the order from which the appeal is filed. (4) Subject to the provisions of sub-section (1), the provisions of the Code of Civil Procedure, 1908, with respect to appeals from original decrees, shall, so far as may be, apply to appeals under this Act. (5) (i) An application for the grant of a certificate under clause (a) of sub-section (I) may be made within thirty days from the date of decision of the Tribunal. (ii) An appeal against the decision of the Tribunal may be preferred with in sixty days from the date of the grant of the said certificate. (iii) An application to the High Court for special leave to appeal under clause (b) of sub-section (I) may be made within sixty days from the date of the order of refusal of the said certificate. xxx xxx xxx ;. -.

A question arose whether cross-objections are maintainable before the High Court in an appeal under Section 381. This Court held that the provision of Order 41 Rule 22 of the CPC is inconsistent with the provisions of the said Act inasmuch as an appeal is admissible only by a certificate or special leave under Section 381. "It is difficult to contend that a cross-objection is anything other than an appeal as generally understood in law. " The cross-objection was held to be not maintainable. ~ ~ An overview of the nature of jurisdiction conferred on this Court under Article 136 of the Constitution becomes necessary. The framers of the Constitution visualized the Supreme Court as a Court having a final and appellate jurisdiction on questions relating to the constitutional validity of I• laws. It was to have appellate jurisdiction in all cases involving a substantial question of law as to the interpretation.

of the Constitution except where an appeal had come to this Court on a Certificate given by the High Court. In .. spite of the Certificate having been refused, this Court could grant a special leave. (The Framing of India's Constitution, B. Shiva Rao, pp. 483 & 488).. Article 136 as framed, opens with a non-obstante clause giving it overriding effect on all other provisions contained in Chapter IV of the Constitution and ;( confers a discretionary jurisdiction on this Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. It is well-settled that Article 136 of the Constitution does not confer a right to appeal on any party; it confers a discretionary power on the Supreme Court to interfere in suitable cases. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power.

When no law confers a statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right. Mis. Bengal Chemical & Pharmaceutical Works ltd. , (1959] Suppl. SCR 136, The State ofBombay v. Rusy Mistry and Anr. , AIR (1960) SC 391 and Basudev Hazra, [1971] l SCC 433. Article 136 cannot be read as conferring a right on anyone to_ prefer an appeal to this Court; it only confers a right on a party to file an application seeking leave to appeal and a discretion on the Court to grant or not to grant such leave in its wisdom. The discretionary power of this Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public >; importance arises or a decision sought to be impugned before this Court shocks its conscience. Arunachalam v. P. S. R. Sadanatham, (1979] 2 SCC 297.

This overriding and exceptional power has been vested in this Court to JH.. WADIA 1·. BOARDOFTRUSTEES, PORT OF MUMBAI [LAHOTI, J] 513 be exercised sparingly and only in furtherance of the cause of justice Subedar v. The State of UP, (1970] 2 SCC 445. The Constitution Bench in Pritam Singh v. The State, (1950] SCR 453 cautioned that the wide discretionary power vesting in this Court should be exercised sparingly and in exceptional cases only when special circumstances are shown to exist. In another Constitution Bench (The Bharat Bank Ltd. , Delhi - 1950 SCR 459) Mahajan, J. (as His Lordship then was) reiterated the caution couching it in a different phraseology and said that this Court would not under Article 136 constitute itself into a Tribunal or Court just settling disputes and reduce itself into mere Court of error. The power under Article 136 is an extraordinary power to be exercised in rare and exceptional cases and on well-known principles.

All said and done, in spite of the repeated pronouncements made by this Court deClaring the law on Article 136 and repeatedly stating that this Court was a Court meant for dealing only with substantial questions of law, /' and in spite ofthe clear constitutional overtones that the jurisdiction is intended to settle the law so as to enable the High Cou1is and the courts subordinate to follow the principles of law propounded and settled by this Court and that this Court was not meant for redeeming injustice in individual cases, the .

, " experience shows that such self-imposed restrictions placed as fetters on its own discretionary power under Article 136 have not hindered the Court from leaping into resolution of individual controversies once it has been brought to its notice that the case has failed to deliver sabstantial justice or has perpetuated grave injustice to parties or is one which shocks the conscience of the Court or suffers on account of disregard to the form of legal process or with violation of the principles of natural justice. Often such are the cases where the judgment or decision or cause or matter brought to its notice has failed to receive the needed care, attention and approach at the hands of the Tribunal or Court below, or even the High Comi at times, and the conscience > of this Court pricks or its heart bleeds for imparting justice or undoing injustice.

The practise and experience apart, the framers of the Constitution did design the jurisdiction of this Court to remain an extraordinary jurisdiction whether at the stage of granting leave or at the stage of deciding the appeal itself after the grant of leave. This Court has never done and would never do injustice nor allow injustice being perpetuated just for the sake of upholding technicalities. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 of the CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel, [1965] I SCR 712; Management ofNorthern Railway Co-operative Society ltd, [1967] 2 SCR 476; Bharat Kala Bhandar ltd, (1965] 3 SCR 499. The learned ASG is right.

But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to Courts of superior jurisdiction. A person who has entirely succeeded before a Cou1t or Tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling. within the meaning of the words 'person aggrieved'. In an appeal or revision, as a matter of general principles, the party, who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order cou Id be sustained by reversing the finding on some other ground which was decided against him in the court below.

This position of law is supportable on general principles without having recourse to Order 4I Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, (2002] 6 SCC I and also Banarsi and Ors. v. Ram Phal, JT (2003) 5 SC 224. This Coult being a Court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own ·' jurisdiction and not by having recourse to Order 41 Rule 33 of the CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 of the CPC.

It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of CPC or any principle deducible therefrom. However still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed. The exercise of appellate jurisdiction under Article I36 of the Constitution is not dependent on the provisions of Order 41 of the CPC. The J. H. WADIA 1·. BOARD OF TRUSTEES, PORT OF MUMBAI [LAHOTI, J. ] 5J5 . J( Court may frame rules governing its own procedure and practice.

No such rule has been framed by the Court which entitles or permits a respondent to file a cross-objection. Right to. file cross-objections is the exercise of substantive right of appeal conferred by law. Cross-objections partake of the right of preferring an appeal. The procedure is different and so is the rule of limitation (See, Municipal Corporation of Delhi and Ors. v. lntnl. Security & Intelligence Agency Ltd - JT (2003) 2 SC I03 and Superintending Engineer and Ors. v. B. Subha Reddy, [1999] 4 SCC 423. Against a decision by the High Court or Tribunal which is partly in favour of one and partly in favour of the other, both the parties are aggrieved and each one of them has a right to move an application in this Court seeking leave to appeal. One who does not do so and allows the prescribed period of limitation to lapse, cannot come up by way of cross-objections on the other party coming up in appeal, though we must qualify our statement of law by reference to Sri Babu Ram v.

Shrimati Prasanni and Ors. , [1959] SCR 1403. In that case, in an election petition the respondent before this Court had sought to support the final conclusion of the High Court by challenging a finding recorded against her which was objected to )( by the appellant. This Court did not think it n. ecessary to decide the point and observed that assuming the respondent should have preferred a petition for special leave to appeal against the finding of the High Court on the issue in question, yet the application made by the respondent for leave to urge additional grounds could be converted into a petition for special leave to appeal against the said finding, and the delay made in filing the same could • be condoned. Suffice it to observe that the observation so made by this Court takes care of an unusual situation where the Court feels inclined to relax the bar of limitation by taking a sympathetic view on condoning of the delay and entertains a belated prayer ex debito justicia.

We cannot close the topic > ) without referring to Vashist Narain Sharma v. Dev Chandra and Ors. , [1955] l SCR 509 (at p. 519). It was an election appeal and the learned counsel for the respondent attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course. The Court held - "that provision has no application under Article 136. We have no appeal before us on behalf of the respondent and we are unable to allow that question to be re-agitated". Vashist Narain Sharma 's case is a three-Judges Bench decision and though available was not placed before the Court deciding Sri Batu Ram's case, which again is a three- Judges Bench decision: Be that as it may, we are clearly of the opinion that 't-in an appeal under Article 136 of the Constitution, the respondent cannot file cross-objections.

If the judgment of the High Court was partly against the respondent, it was for it to have filed an application seeking leave to appeal. That right having been foregone by it and the period of limitation having expired, the cross-objections cannot be entertained. The filing of crossobjections by a respondent in this Court is an attempt at exercising the right of filing an application for special leave to appeal after the expiry of limitation and in a manner not contemplated by Article 136 of the Constitution. The Judgment of the High Court was delivered on 1. 8. 2000. Leave was granted to the appellant on 13. 8. 2001 in the presence of counsel for the respondent. Formal notice of lodgment of appeal was served on the respondent on _ 28. 9. 2001. The application by way of cross-objections has been filed on 31. 7. 2002.

The only reason assigned in the application seeking condonation of delay is that though the respondent-Trust had accepted the judgment of the High Court, it was advised and persuaded to file cross-objections because of the appellants having filed the application seeking leave to file an appeal and leave having been granted to them. We do not think such explanation, in the facts and circumstances of the case, amounts to sufficient cause for condoning the delay. Even on merits we do not find any reason to entertain the plea sought · to be urged in cross-objections. As we have already pointed out, the respondents have accepted the judgment of the High Court and also acted thereon. Merely because the other party has preferred an appeal, that cannot be a ground for the respondent also to disown that part of the judgment which was acceptable to it. Further, the issue which is now sought to be reagitated stands concluded by the earlier order of remand passed by this Court.

The respondent cannot now, in the second round of appeal to this Court, be permitted to urge such pleas as it could have urged in the earlier round or which it urged and was not accepted by this Court. The cross-objections preferred by the respondent-Trust are dismissed as not maintainable and as also being devoid of any merit. All the appeals are directed to be disposed of in terms of the following directions : - (i) by this judgment and in these proceedings the controversy as to the rates of rent applicable to the lessees shall be deemed to have J. H. WADIA v. BOARD OF TRUSTEES, PORT OF MUMBAI [LAHOTI, J] 517 / ,... I( been resolved for the period 1. 4. 1994 to 31. 3. 2000; (ii) the 'Compromise Proposals' as approved by the Board ofTrustees of the Port of Mumbai in their meeting held on 13. 8. 1991 which are very fair, just and reasonable, subject to the modification that the revision in rent from 1. 4.

1994, shall be on the basis of rates of return at I0% for non-residential uses and 8% for residential uses, based on Kirloskar Consultants' report, instead of 15% and 12% respectively as was suggested in the 'Compromise Proposals'. The 'Compromise Proposals' so modified shall bind the parties, and all the lessees even if not parties to these proceedings in view of the proceedings taken by the High Court under Order I Rule 8 of the C. P. C. ; (iii) the rates of rent for the period upto 31. 3. 1994 shall remain as suggested in the 'Compromise Proposals'; (iv) the interest chargeable by the Board of Trustees of the Port of Mumbai in respect of arrears of rent for the period commencing 1. 4. 1994 upto the date of actual payment shall be calculated at . ,.

the rate of 6% per annum, (v) subject to the abovesaid modifications, all other terms and conditions of 'Compromise Proposals', shall remained unchanged; (vi) within a period of eight weeks from today lease deeds consistently with the 'Compromise Proposals', subject to the modifications as above said, shall be executed by the lessees and even if lease deeds are not executed the terms of 'Compromise Proposals' shall bind the lessees; (vii) such of the tenants as may wish to contend that there are certain ;> ). real and material distinguishing features to be considered for the purpose of carving out an exception and relaxing the general terms and entitling them to reduction in the rates ofrent applicable as above said, may file representations each setting out specific grounds and relevant facts precisely in that regard in the office of the Bombay Port Trust under a written acknowledgement. The Bombay Port Trnst shall maintain a register of all such j representations filed.

No representation filed after the expiry of six weeks from today shall be received or entertained. (viii)We request the High Court to appoint a retired Judge, preferably r (and not necessarily) of the rank of District Judge, as a Sole -;... Adjudicator of the objections/representations filed in terms of the above decision. The High Court shall appoint a place of sitting and the amount of remuneration to be paid per case (and not on per· day basis) to the Adjudicator. The fee shall be paid by each lessee filing the representation for decision. The requisite secretarial and clerical assistance shall be provided by the Bombay Port Trust or as directed by the High Court. The learned Adjudicator shall commence his proceedings on expiry of eight weeks from today and on the record of representations being made available to him and shall conclude the same within a period of4 months thereafter.

The Adjudicator shall not be bound to record evidence and may determine and dispose of the representations by summary hearing, receiving such affidavits and documents as required by him, and/or carrying out inspection of the leased properties, ifhe deems fit to do so. The Adjudicator shall examine and decide to what relief in the rate of rent and/ or any other term of lease such representing lessee is entitled. The decision by the Adjudicator shall be final and binding on the ,, parties. In case of any difficulty in implementing this procedure directions may be sought for from the High Court. (ix) The abovesaid procedure is not to be utilised as justification for withholding the payment of any arrears of rent to be calculated in terms of these directions. The payments have to be made and made regularly. Any amount becoming due for refund in terms of any relief granted by the Adjudicator shall be refunded or adjusted thereafter.

(x) We expect the lessees to cooperate in finalisation of the disputes. We also expect the lessees to desist from preferring immaterial .... -4,. or frivolous objections or objections just for their sake. If any one does so the learned Adjudicator may impose costs on him which shall. be payable to and recoverable under law by the BPT as arrears of rent. (xi) For the purpose of appointing an Adjudicator and dealing with application, if any, seeking resolution of difficulties, in terms of the preceding direction, we request the learned Chief Justice of .. n the High Court of Bombay at Mumbai to assign this matter for being placed before any learned judge of his Court. We, on our J. H. WADIA v. BOARD OF TRUSTEES, PORT OF MUMBAI [LAHOT! , J. ] 519 part, suggest in the iilterest ofexpeditious disposal, that the matter may be assigned to any one of the judges available in the High Court out of those who had earlier dealt with the matter (i. e.

, the learned Single Judge who passed the order dated 1/4-10-1990, the two learned Judges who passed the judgment dated 11/12-3- 1993 and the two learned judges who passed the order dated I- 8-2000). His acquaintance with the facts of the case would accelerate the hearing and disposal. However, this is only suggestion and is not in any manner intended to fetter the power of the learned Chief Justice to assign the matters for hearing in the High Court. (xii) The issue as to the applicability of the Maharashtra Rent Control Act, 1999, to the Port of Mumbai and the property held by it is left open to be decided in appropriate proceedings. The appeals and all the pending applications shall stand disposed of. There shall be no order as to costs in these proceedings. S. K. S. Appeals disposed of.