Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeals 15/18, 16/18, 73/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CNR NO.: MHCC010003892018 & CNR NO.: MHCC010003852018
Received on : 10/01/2018
Registered on : 22/01/2018
Decided on : 11/09/2018
Duration : Y M D
00 07 19
MISC. APPEAL NO.15 OF 2018
AND
MISC. APPEAL NO.16 OF 2018
1. Ratnakar Laxman Shetty
Age : 70 years, Occ.: Business,
Residing at Room no.1
2. Kumar Shivram Jabade
Age : 76 years, Occ.: Retired,
Residing at Room no.2
3. Laxmichand Kushalbhai Patel
Age : 66 years, Occ.: Business,
Residing at Room no.5
4. Raghunath Ambaji Nakti
Age : 39 years, Occ.: Business,
Residing at Room no.4
5. Prakash Appasaheb Pawar
Age : 65 years, Occ.: Retired,
Residing at Room no.5
6. Bharat Dirajlal Parmar
Age : 46 years, Occ.: Self employed
Residing at Room no.8
7. Vijay Parshuram Rane
Age : 64 years, Occ.: Retired,
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Residing at Room no.10
8. Vinayak Anant Rane
Age : 67 years, Occ.: Business,
Residing at Room no.11
9. Rauli Vithal Nagare
Age : 28 years, Occ.: Service,
Residing at Room no.12
All above residing at Hirwi Chawl,
502, Bane Compound, Sane Guruji Road,
Mumbai – 400 034.
CNR NO.: MHCC010025132018
Received on : 17/02/2018
Registered on : 07/03/2018
Decided on : 11/09/2018
Duration : Y M D
00 06 03
MISC. APPEAL NO.73 of 2018
Smt. Anita Ramesh Khadey
Age : 65 years, Occ.: Housewife,
Residing at Room no.502,
Hiravi Chawl, Sane Guruji Marg,
Tardeo, Mumbai – 400 034.
..Appellants
V/s.
(COMMON RESPONDENTS IN ALL THE APPEALS)
1. Municipal Corporation of Greater Mumbai,
having its office at Mahapalika Building,
C.S.T. Road, Mumbai 400 001.
2. Mr. R. P. Vaidya,
The Enquiry Officer,
having his office at 'E' Ward,
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3 Misc.Appeals 15/18, 16/18, 73/18
Municipal Office, 10, Sankli Street,
Byculla, Mumbai – 400 008. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs. P. V. GANEDIWALA
Dated : 11th September, 2018
(C.R.No.19)
Adv. Mr. Mukesh Chheda & adv. Mr. Sagar Marathe for the appellants.
Advocate Mr. Sanjay Gholve with adv. Mr. Divate for the respondents.
C O M M O N O R A L J U D G M E N T
Being aggrieved by the interim orders dated 26th December,
2017, 03rd January, 2018 and 22nd January, 2018 passed by the Enquiry
Officer in Revised Enquiry No.D/2/Estate of 2016 (Old Enquiry
No.D/1/Estate of 2015), the appellants preferred the present appeals.
2. The facts in brief necessary to decide the present appeals
are as under:
The appellants herein are occupying independent rooms in the
premises comprising of ground floor structure, 502, Hiravi chawl, Sane
Guruji Marg, Tardeo, Mumbai (hereinafter referred to as the 'Enquiry
Premises') which is owned by the respondent no.1 i.e. the Municipal
Corporation of Greater Mumbai.
3. The Learned Enquiry Officer has passed an order of eviction
against the present appellants vide order dated 29th January 2016 in
Enquiry No.D/1/Estate of 2015 along with one M/s. Hind Rubber
Industries Private Limited, the original lessee of the Corporation. The
appellants and M/s. Hind Rubber Industries Private Limited filed
appeals against the said order of eviction before this Court. The
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predecessor of this court allowed the appeals of these appellants and
dismissed the appeal by M/s. Hind Rubber Industries Private Limited.
The predecessor of this court while setting aside the order of eviction
against these appellants remanded back the matter for reconsideration
and directed the Enquiry Officer to consider the documents relied upon
by the appellants in the appeals.
4. Now before the Enquiry Officer, the appellants moved
applications for framing additional issues on the basis of the documents
which were not considered earlier. The Learned Enquiry Officer
rejected the applications on the ground that after the confirmation of
the order of the Enquiry Officer in respect of opponent no.1 in Enquiry
No.D/1/Estate of 2015, the status of opponent nos.2 to 11 remains the
same and hence there is no change in circumstances. The impugned
orders are challenged in these appeals.
5. I have heard learned counsel Mr. Mukesh Chheda, learned
counsel Mr. Sagar Marathe for the appellants and learned counsels Mr.
Sanjay Gholve with adv. Mr. Divate for the respondents. The following
points arise for my determination and the findings thereon are as under
for the reasons to follow :
POINTS FINDINGS
1. Whether the orders of the leaned Enquiry ..In the negative
Officer are legal, proper and correct ?
2. What order? ..As per final order
R E A S O N S
6. At the outset, as rightly argued by the learned counsels for
the appellants that in the impugned orders, the Learned Enquiry Officer
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is not correct in his observation that in view of the confirmation of the
order of the Enquiry Officer in respect of opponent no.1 therein, M/s.
Hind Rubber Industries Private Limited, the status of the present
appellants remains the same i.e. unauthorised. It is pertinent to note
that the order of eviction against the present appellants dated 29th
January, 2016 passed by the learned Enquiry Officer has been set aside
by the predecessor of this Court and the matter is remanded back for
reconsideration and the learned Enquiry Officer is directed to consider
the newly added documents. The Enquiry Officer again has to decide
the nature of the occupation of the present appellants i.e. whether
authorised or unauthorized in the light of newly added documents.
7. As regards the framing of additional issues, the Enquiry
Officer is only empowered to decide the unauthorized occupancy on the
basis of material before him. The Enquiry Officer has no jurisdiction to
decide the issue of entitlement to the premises under Slum Clearance
Act during the enquiry under section 105 (B) of the MMC Act. In the
present proceeding, the eviction is sought on the ground of
unauthorised occupancy. In the order of eviction passed by the Enquiry
Officer in Enquiry No.D/1/Estate of 2015, the present appellants were
held to be unauthorised occupants. The said order is set aside by the
predecessor of this court. However, now the matter is remanded back
for reconsideration on the basis of newly added documents. Therefore,
the issue to be decided by the Enquiry Officer will not be changed i.e.
whether the present occupants are unauthorised occupants.
Furthermore, as the learned Enquiry Officer has to reconsider the issue
of unauthorized occupation in the light of the newly added documents.
He may be required by the parties to examine or to reexamine/recall
the witnesses. The learned Enquiry Officer cannot deny the fair
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opportunity of hearing to the parties. In such circumstances, it is
necessary to set aside the impugned orders. The learned Enquiry
Officer is directed to decide the matter expeditiously. I answer point
no.1 accordingly and pass the following order :
C O M M O N O R D E R
Misc. Appeal Nos.15/2018, 16/2018 and 73/2018 are
allowed in the above terms and the orders dated 26th
December, 2017, 03rd January 2018 and 22nd January, 2018
passed by the Enquiry Officer in Revised Enquiry
No.D/2/Estate of 2016 (Old Enquiry No.D/1/Estate of 2015)
are hereby quashed and set aside.
11/09/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 11/09/2018
Transcribed on : 11/09/2018
Signed by HHJ on : 12/09/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer : Mrs. Varsha D. Chowdhri
Upload date and time : 12th September, 2018 (At 05.32 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 11th September, 2018
Order signed by P.O. on 12th September, 2018
Order uploaded on 12th September, 2018
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