Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.App.05.19
Received on : 09/01/2019
Registered on : 10/01/2019
Decided on : 18/02/2020
Duration : Y M D
01 01 08
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Misc. Appeal No.05 of 2019
Mustafa Baba Patel
age-46 years of Mumbai,
Indian inhabitant, having
address at Hut No.85/PN/SG/10,
Opp. BMC Colony Gate No.1,
Malwani, Malad(W), Mumbai-95 ..Appellant
V/s.
Estate Officer, Mumbai Central
Division V, Central PWD, Chintamani
Plaza, 3rd floor, ‘B’ Wing, 306,
Andheri Kurla Road, Opp. Cinemax
Theatre, Andheri (W),
Mumbai-99 ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 18th February,2020
(C.R.No.19)
Advocate Mr. P.D. Gandhy i/b. M/s.P.D. Gandhy & Associates for
appellant.
Advocate Mr. Kunal Thakkar i/b. advocate Shriram Redij for respondent.
O R A L J U D G M E N T
Dissatisfied with the order of eviction dated 28th December,
2018 passed by the Estate Officer under Section 5 of Public Premises
(Eviction of Unauthorised Premises) Act,1971 (“the Act” for short), the
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appellant has filed the present appeal.
2 The facts which can be gathered from record and
proceedings of the Estate Officer are that land bearing no.CTS 2840 of
village Malwani admeasuring about 43.35 acres originally belonged to
Salt Department of Central Government. As per direction of the
Bombay High Court in case No.565 of 1994, this land was transferred to
Central Public Works Department on 1st June,1996. Structure occupied
by the appellant was found on the said land bearing CTS No.2840.
Therefore, on 11th July,2012 Estate Officer issued show cause notice
under Section 4(1) and 4(ii)(b) of the Act and proceedings were
initiated for eviction.
3 The defence of the appellant is that he has acquired the
structure from one Ram Ujagir Chowhan in 2009. He has all licences to
conduct the said shop under various Acts. Mumbai Municipal
Corporation has also issued photo-pass with regard to the said structure.
Therefore, the said structure is protected under the scheme of State
Government. The said inquiry culminated in the impugned order 28th
December, 2018 of eviction whereby the appellant was directed to
vacate the said premises. Feeling aggrieved with the said order, the
present appeal came to be filed.
4 Heard learned advocate for appellant as well as respondent.
Perused the record and proceedings and impugned order. The following
points arise for my determination and I have given my findings against
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each of them for the reasons to follow:
POINTS FINDINGS
1) Whether the matter is required to
be remanded back to the Estate ..In the affirmative
Officer?
2) Whether the impugned order dated
28/12/2018 passed by the Estate ..In the negative.
Officer is just, legal and proper?
3) What order? ..As per final order.
R E A S O N S
Point nos. 1 to 3:
5 It is contended on behalf of learned advocate for the
appellant that the appellant is not unauthorized occupant. He has
acquired the said property in the year 2009 from authorized photo-pass
holder. According to him, the Mumbai Municipal Corporation has issued
photo-pass to the structure. All the requisite licences have been issued
on the said structure and appellant is running chicken shop. According
to him, as per the scheme of the Government, all the structures prior to
2010 cannot be removed unless the alternate accommodation is offered.
According to him all these documents such as photo-pass, requisite
licences and letters of authority have been produced before the Estate
Officer, which has not been considered by the Estate Officer. All the
time the appellants were called and most of the time the Estate Officer
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was not available. According to him, no proper hearing was given to the
appellant and mechanical order has been passed without giving
opportunity of hearing to the appellant.
6 It is also contended that the issues raised were not
considered by the Competent Authority. Therefore, the matter needs to
be remanded back for fresh consideration. To buttress this submission,
he seeks to place reliance on
Tulsiwadi Navnirman Co-Op. Housing
Society Ltd. V/s. State of Maharashtra and others reported in 2007(6)
Mh.L.J.851, Suhas s/o. Vishwanath Kolapkar V/s. The Assistant
Collector Ahmednagar and anr. in W/P. no.3645/08 dated 17th July,2008
and
Minoo Framroze Balsara V/s. The Union of India and ors.
reported in MANU/MH/0062/1992.
7 Per contra, learned advocate appearing on behalf of
respondent Central PWD, contended that the land belongs to Central
Public Works Department of Central Government. According to him,
opportunities were given to the appellant by issuing notices. The
appellant produced the documents. According to him, the appellant is in
unauthorized occupation as held by the Estate Officer. They did not
produce any document of Central Government authorizing their
possession. He submits that the order of Estate Officer is well reasoned
rather appellant agreed to vacate the premises. According to him, the
appeal is without merit and is liable to be dismissed.
8 At the outset, it would be appropriate to mention here that
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the present matter were not argued in detail on the merit and the points
canvassed before me orally pertained to not following of the principle of
natural justice and proper procedure by the Estate Officer apart from
considerable delay in passing of order.
9 Scrutiny of the record and proceedings of the Estate Officer
shows that the proceeding is started in the year 2012 and culminated on
28th December, 2018. Thus, it lasted about 6-1/2 years on most of the
dates, sometime the appellant remained absent or sometime the Estate
Officer was not available. It appears that on all other dates, either the
appellant filed the documents which were taken on record and dates
were given. On other dates, only their presence were marked and the
matter was adjourned. From record it appears that after taking the
document on record, only the presence of appellant was recorded.
Therefore, it also appears that the proper opportunity of hearing was
not given.
10 The statute does not require a lengthy hearing, but the
principle of nature justice has to be followed. Though summarily, like
any other inquiry opportunity to show cause, effectively to noticee by his
evidence or at least by way of cross examination of opponent, is
required to be given.
11 In the case of
Minoo Framroze Balsara (Supra), relied by
the appellant, the Apex Court has held in para 34 that provisions of
Section 4 of the Act makes it clear that the addressee may seek a
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personal hearing from the Estate Officer and may lead evidence for the
purpose of showing cause against the proposed order of eviction.
12 Apart from it, there is inordinate delay in passing the order.
The mater was closed for orders on 27th October,2017. About more than
one year thereafter on 28th December 2018, the Estate Officer has
passed the impugned order. Thus, there is long delay in passing the
order. Long interval between conclusion of argument and delivery of
judgment, shakes the confidence of judicial system and affects the right
of the parties and privilege. Such a practice is not a healthy situation in
judicial system or quasi judicial system. In a case of
Gulmohar Area
Societies Welfare Group Vs. Municipal Corporation of Greater Bombay
reported in 2018 (5) ALL MR 654, the Hon’ble High Court in para 54
has held as under:
“54..The perusal of the Judgment of the Apex
Court in the case of Anil Rai [2001 ALL MR (Cri)
1930 (S.C.)] (Supra) would reveal that the
Hon’ble the Apex Court has held that even the
High Courts should deliver the Judgments within
a period of three months after hearing the matter.
We find that when the law laid down by the Apex
Court requires the High Courts to decide the
matter within three months, the same would also
be applicable to the Judicial or Quasi-judicial
authorities exercising Judicial or Quasi-judicial
powers. In the present case, the matter has been
decided almost after the period of six months
from the date on which it was heard by
Respondent No.2. On this ground also, we find
that the decision of Respondent No.2 is liable to
be quashed and set aside.”
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13 In the circumstance above, the order of Estate Officer does
not stand and required to set aside and be remanded back for fresh
hearing. The Estate Officer shall afford the opportunity to the appellant
and conduct the inquiry without being influence by the order of this
court. In the result, the appellant succeeds. I answer the points
accordingly and proceed to pass the following order:
O R D E R
1) Misc. Appeal no.05/19 is allowed.
2) The impugned order dated 28th December,2018 is hereby
set aside.
3) The matter is remanded back to the Estate Officer for
deciding afresh i.e. the Estate Officer shall give the
opportunity of hearing to the appellant. Thereafter,
Estate Officer shall complete the inquiry as early as
possible.
4) R & P sent back.
18/02/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 18/02/2020
Transcribed on : 20/02/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 20/03/2020 (12.15 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 18th February,2020
Order signed by P.O. on 20th March, 2020
Order uploaded on 20th March,2020
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