Final Order 1

Order Details: Copy of Judgment
Pdf Text: Mrs. Sarita Vasant Sawant Vs. Municipal Corporation of Gr. Mumbai & Ors.
Misc. Appeal No.9/2018
Received on : 18.01.2018
Registered on : 19.01.2018
Decided on : 25.08.2021
Duration : Y03 M07 D07
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.9 of 2018
(CNR No.MHCC010009682018)
Mrs. Sarita Vasant Sawant
Age 73 years,
Room No.8, Chawl No.G/10,
Ground Floor,
S.G. Barve Nagar, Ghatkopar West,
Mumbai – 400 084 ..Appellant
Versus
1. Municipal Corporation of Greater Mumbai
(Through the Municipal Commissioner)
Mahanagar Palika Road,
Opposite CST Station, Fort, Mumbai 400 001
2. The Rent Collector Mr. R.G. Singh
'N' Ward Office, Ghatkopar (W),
Mumbai – 400 077.
3. The Enquiry Officer
Smt. R.V.Pradhan
1st Road, Behind Natraj Cinema,
Chembur, Mumbai 400 071 ..Respondents
APPEARANCES
For the appellant:
− Mr. Rajendra Pai, Counsel
With Aloukik Pai, Akshay Pai i/b Apurva Bhat, Advocates
For the respondents/BMC:
− Mr. Dharmesh Vyas, Counsel
With Som Sinha and Ruhi Hajare, Advocates
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Misc. Appeal No.9/2018
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL (C.R.No.19)
Dated : 25th August, 2021
ORAL JUDGMENT:
Order passed by the Enquiry Officer i.e. Respondent No.3 u/s.
105B of The Mumbai Municipal Corporation Act, 1888 on 21.12.2017
directing eviction of the appellant from the subject premises, namely
Room No.8, Chawl No.G/10, Ground Floor, S.G.Barve Nagar, Ghatkopar
(W), Mumbai 400 084, alongwith other order passed on 12.12.2017
below applications dt. 25.10.2017 and 11.12.2017 seeking extension of
time specified in notice issued u/s. 105B of M.M.C.Act and for
impleadment of State Government respectively thereby rejecting these
applications, is commonly assailed in the present appeal.
2. Facts material for disposal of this appeal are as under:
As far as the order of eviction is concerned, one of the principle
contention of the Learned Counsel for the appellant, is that the
appellant was not provided proper opportunity of hearing. She was
neither allowed to crossexamine the witness of the respondents nor was
permitted to lead evidence and that her right in that regard came to be
forfeited on flimsy ground and thus on this ground alone, the appeal so
far as order of eviction is concerned deserves to be allowed and the
matter be remanded back to the Enquiry Officer.
3. As regards the other two applications, it is contended that there
are hundreds of occupants such as the appellant against whom the
proceedings were initiated and State Government was in the process of
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Misc. Appeal No.9/2018
finalizing policy with regard to the occupation of the appellant and
similarly situated hundreds of persons and it is in that view of the
matter, that applications dt. 25.10.2017 and 11.12.2017 came to be
filed; one for seeking extension of time stipulated in the notice and the
other for impleading the State Government and in this situation, since it
was necessary, considering the overall gamut of the matter to implead
State Government as a party and extend the time as sought for, the
order rejecting the said applications cannot be sustained.
4. Learned Counsel for the respondents/Corporation although tried
to justify the order of the eviction stating therein that the appellant and
similarly situated persons have filed Writ Petition bearing Nos. 957 of
2013, 2165 of 2009, 1457 of 2010, 1797 of 2009, 1536 of 2008, and
1158 of 2013 before the Hon'ble High Court and after considering the
entire exhaustive arguments of the petitioners therein, said petitions
were dismissed and Special Leave Appeal(c) No(s).13605 of 2017
preferred thereagainst was also dismissed and thus, the appellant has no
ground to agitate before the Enquiry Officer.
5. As far as rejection of two applications is concerned, it is submitted
that there was no merit in said two applications since neither the State
was necessary party nor appellant was entitled to the extension of time
as sought for. Thus, it is contended that the appeal deserves to be
dismissed in toto.
6. In view of the aforesaid arguments, following points arise for my
consideration and my findings thereon for the reasons therefor are as
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under:
POINTS FINDINGS
1. Whether principles of natural justice were
followed and proper opportunity of
hearing was given by the Enquiry Officer
to the appellant?
..In the negative
2. Whether the appellant was justified in
seeking extension of time?
..In the negative
3. Whether the proceedings before the
Enquiry Officer justifies impleadment of
State before it.?
..In the negative
4. Whether the orders impugned warrant
interference in appeal?
..Partly in the
affirmative
5. What Order? ..As per final order.
R E A S O N S
Point Nos.1 to 4:
7. At the outset, it would be apposite to mention that during the
enquiry before Enquiry Officer, Rent Supervisor of Respondents was
examined in the year 2010 on 8th July and the matter was adjourned for
crossexamination on 22.7.2010 at 2.30 p.m. On this date, time was
sought since the copy of the order passed in Writ Petition No. 2165 of
2009 referred to herein above was not received and as such, the matter
was adjourned to 2.8.2010 at 2.30 p.m. On 2.8.2010 since vide order
dt.8.1.2010 in Writ Petition No.1797 of 2009, the Hon'ble High Court
directed maintenance of status quo and the said order was also
continued, the enquiry proceedings were adjourned Sine die.
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8. However, while the matter was taken up again in the year 2017
on 25th October, it was observed in the Roznama of the Enquiry Officer
that intimation was sent to the opponent/appellant and the appellant
appeared through Advocate and filed application seeking extension of
time and permission to deposit contractual rent to M.C.G.M. Said
application was rejected and since the matter was stayed at the stage of
statement of opponent/appellant, it was adjourned to 23.11.2017 at
11.30 a.m. for statement of opponent. On which date, reply was filed by
the respondents on the application and since the time was sought by the
opponent/appellant, proceedings were adjourned to 11.12.2017 at
11.30 a.m. On which date, the appellant filed another application for
impleadment of the State, the respondents filed say thereon and these
applications dt. 25.10.2017 and 11.12.2017 were kept for orders on
12.12.2017. On which date, these applications were rejected and the
matter was adjourned to 16.12.2017 and it appears from the Roznama
of 16.12.2017 that Enquiry Officer heard the arguments of the
respondents and observed that Advocate for the appellant neither
argued the matter orally nor had given any written arguments or
submitted any documents on record and on 21.12.2017 the order
impugned for eviction came to be passed.
9. It is to be noted that when the matter was adjourned Sine die, it
was kept for crossexamination of the witness of the respondents and
even when the matter was taken up in the year 2017, on the very first
date, the matter was adjourned for statement of the appellant. But
thereafter it appears that since two applications were filed, the Enquiry
Officer directly placed the matter for arguments, heard arguments of the
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respondents and passed order of eviction. Moreover, in the impugned
order, Enquiry Officer in this regard observed thus:
Due to this behavior of the Opponent he had lost the cross the
Applicant and the evidential proof in his/her support before
me. Likewise, the Opponent can loose his own cross for
his/her defense if any.
10. The approach of the Enquiry Officer cannot at all said to be
justified and there is substance in the contention of the appellant that
principles of natural justice were grossly violated. The contention of the
Learned Counsel for the respondents that Writ Petitions considering all
the grounds of the appellant and similarly situated persons were
considered in detail and were turned down, cannot be a ground
sufficient to avoid following of principles of natural justice by the
Enquiry Officer holding statutory enquiry that had civil consequences.
Moreover, even the Hon'ble High Court had directed that these persons
ought to be evicted after following due process of law. Learned Counsel
for the respondents placed reliance on the judgment of the Hon'ble
Bombay High Court in the case of Prakash Premnath Gaikwad Vs. Rolf
D'Souza and Another reported in 2018(4) ABR 588. Having perused
the judgment, it is quite apparent that the Hon'ble Bombay High Court
found that the order of closure of evidence was passed by the Learned
Civil Judge Junior Division after giving several opportunities to the
petitioner and at times as a 'very very last chance' and 'very very very
last chance' and thus, said order was not interfered with, in writ
jurisdiction. However, factual matrix in the present case is entirely
different and reliance placed on this judgment appears to be wholly
misconceived.
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11. In these circumstances, the order of the eviction cannot be
sustained and it is necessary to direct the Enquiry Officer after setting
aside the order of eviction to conduct enquiry by affording proper
opportunity of hearing to the appellant and thereafter to pass
appropriate orders in accordance with law. The appellant would not be
justified in seeking unnecessary adjournments and shall cooperate and
ensure the disposal of the enquiry proceedings within six weeks from
the date of this order.
12. As far as the other two applications are concerned, the first being
for extension of time, it is to be noted that as observed herein above, the
proceedings which are summary in nature were already pending for
almost 10 years and then at this stage, seeking extension of time further
appears to be wholly inappropriate and in such circumstances, the order
passed in that regard merely on the ground that some policy decision
was under consideration of the State Government was not at all
justifiable. Furthermore, even in respect of impleadment of State, when
admittedly, the land belongs to the Corporation and there was an
employer and employee relationship between the Corporation and the
appellant, considering the scheme of statutory provisions, the State was
not at all a necessary party. Thus, I do not find any illegality in rejection
of these two applications.
13. For the foregoing reasons, I answer the points accordingly and
pass the following order:
ORDER
1. Misc. Appeal No. 9 of 2018 is partly allowed.
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2. Order passed by the Enquiry Officer on 21.12.2017 directing
eviction of the appellant is hereby set aside and matter is remanded
back to the Enquiry Officer who shall ensure that same is
completed within a period of six weeks from today after giving
proper opportunity of hearing to the appellant.
3. The order dt. 12.12.2017 passed by the Enquiry Officer on
applications dt. 25.10.2017 and 11.12.2017 is maintained.
25.08.2021 (S.B.AGRAWAL)
Principal Judge,
City Civil Court,
Gr.Bombay.
Dictated on : 25.08.2021
Transcribed on : 25.08.2021
Dictated on : 25.08.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S. Parab
Upload date and time: 25.8.2021 (At 5.35 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 25th August, 2021
Order signed by P.O. on 25th August, 2021
Order uploaded on 25th August, 2021
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