Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Appeal 3.19
Received on : 03/01/2019
Registered on : 04/01/2019
Decided on : 15/12/2020
Duration : Y M D
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.03 of 2019
K.B. Enterprises Pvt. Ltd.
a company incorporated under the
Companies Act,1956 having its
address at B-112, Arjun Centre,
Station Road, Govandi(E),
Mumbai-88 ..Appellant
V/s.
1) Municipal Corporation of Greater
Mumbai, a Corporation constituted
under the Bombay Municipal
Corporation Act,1888 having its
Head office at Mahapalika Marg,
Fort, Mumbai-1.
2) Deonar Abattoir through the
General Manager a subsidiary
of Brihanmumbai Mahanagar
Palika, having its office at Deonar
Abattoir, Opp. Govandi Railway
Station, Govandi, Mumbai-43
3) Amin Dost Mohammed Kerawala,
an adult, Indian Inhabitant of
Mumbai, residing at 94, Hill
Road, Bandra, Mumbai-50
4) Salim Dost Mohammed Kerawala
an adult, Indian Inhabitant of
Mumbai, residing at 94, Hill
Road, Bandra, Mumbai-50
5) Nisar Dost Mohammed Kerawala
an adult, Indian Inhabitant of
Mumbai, residing at 94, Hill
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Road, Bandra, Mumbai-50
6) The Enquiry Officer,
M/West Ward, Municipal Corporation,
1st Road, behind Natraj Cinema,
Chembur, Mumbai-71 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL
Dated : 15th December,2020
(C.R.No.19)
Counsel Shri Bharat Choudhary a/w. advocate Shri Vishal Phad i/b.
advocate Ms.Sunita Sonawane for appellant.
Advocate Shri Vikram Walawalkar a/w. advocate Shri A.V. Diwate for
respondent/MMC.
O R A L J U D G M E N T
Order of eviction passed under Section 105B of the
Mumbai Municipal Corporation Act,1888 by the Enquiry Officer
directing eviction of the appellant from plot no.61, Deonar Abattoir,
Govandi, Mumbai-43 is assailed in the present appeal.
2 Facts material for disposal of this appeal are as under:
It is not in dispute that the subject premises was leased out to the
appellant for a period of 60 years under a Lease Deed with a specific
condition stipulated in the said Lease that the premises would be used
for ancillary unit of Deonar Abattoir and if it is used for other purpose,
it is necessary to take NOC from the Corporation before the same is so
used. Earlier, a notice was issued to the appellant which was challenged
in the suit and the suit of the appellant was decreed. However, it was
specifically mentioned therein that in case of breach of condition of the
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lease, the defendant-Corporation would be at liberty to recover the
possession in accordance with law.
3 Accordingly, during inspection carried out by the
Corporation, it was revealed to the Officer of the Corporation that the
plot of land was used for some marriage activities. Show cause notice
was issued to the appellant which the appellant claims to have not been
received. Admittedly, the notice was pasted and delivered at the plot
address whereas it is the contention of the appellant that all the other
correspondence between the parties was undertaken from the registered
office of the appellant and not the subject premises. Evidence was led
from both the sides before the Enquiry Officer, after the proceeding
were initiated and the order impugned came to be passed.
4 Apart from the other grounds on the merits, it is contended
by the learned counsel for the appellant that the order impugned is not
reasoned order since none of the contention raised by the appellant
have been deliberated upon in the order although many substantial
grounds germane to the inquiry were raised.
5 Learned counsel for the respondent took me through the
impugned order, however, no reasoning could be pointed out in the
impugned order. In such circumstances, the following points arise for
my consideration and my findings thereon for the reasons therefor are
as under:
POINTS FINDINGS
1. Whether the impugned order
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is sustainable in law? .. In the negative
2. Whether the impugned order
is a reasoned order? ..In the negative
3. What order? ..As per final order
R E A S O N S
Point nos.1 and 2:
6 As narrated herein above, it is contended by the appellant
that the initiation of the present proceedings is a colourable exercise of
power after set back before the Civil Court. Furthermore, for four years
no action was taken. Thirdly, the complaint on the basis of which
purportedly the Corporation officials inspected the property was of the
date subsequent to the inspection. It is also contended that the material
adduced by the Corporation before the Enquiry Officer is wholly
insufficient inasmuch as admittedly the Corporation during inspection
officials did not find the owner or the employee of the appellant. On
the spot presence of Babajan Khan is shown whose existence itself is
doubtful. Apart from photographs, the other document were also not
free from doubt.
7 There is no material except for the version given by the
officer of the Corporation who infact in cross-examination has admitted
that she would be able to identify the subject premises with the help of
officers and not independently and it has also been contended that none
of the notices issued by the Corporation were received by the appellant
since admittedly they were tried to be served upon the open plot of land
whereas the other correspondence between Corporation and the
appellant is on the address at the registered office of the appellant. All
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these issues were crucial to be deliberated upon by any quasi judicial
authority before passing an order which would have serious civil
consequence.
8 Needless to say that reasoning is soul and spirit of an order
passed by such authority because in the absence of such reasoning every
one including parties to the proceedings as well as appellate court is
handicapped. Furthermore, it would also not be appropriate for the
appellate court, for the first time to deliberate on these factual aspects
and give it’s findings since that would cause prejudice to either side
because they would loose their statutory right of appeal to assail those
findings.
9 Considering all these aspects, I have no other option but to
remand the matter directing the Enquiry Officer to pass a reasoned
order after considering all the relevant aspects of the matter. It is
clarified that all the points are kept open before the Enquiry Officer
including that of non service of the notices by the Corporation. In
such circumstances, I answer the points accordingly and pass the
following order:
O R D E R
1) Misc.Appeal No.03/19 is partly allowed.
2) Impugned order dated 7th December,2018 passed by the Enquiry
Officer is hereby set aside and the matter is remanded back to the
Enquiry Officer, who will complete the inquiry in accordance with
law and as per the directions herein above and pass appropriate
order.
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3) Needless to say that the Enquiry Officer shall not be influenced by
the observations made herein above.
15/12/2020 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 15/12/2020
Transcribed on : 15/12/2020
Signed by HHJ on : 15/12/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 16/12/2020 (At 11.35 am)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 15th December,2020
Order signed by P.O. on 15th December,2020
Order uploaded on 16th December,2020
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