Final Order 1

Order Details: Copy of Judgment
Pdf Text: Laxmi B. Metkari Vs. 1. Executive Engineer & Ors.
*Received on : 25/01/2019
Registered on : 29/01/2019
Decided on : 09/03/2021
Duration : Y-02: M-01: D-12 :
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISCELLANEOUS APPEAL NO.34 OF 2019
(CNR NO.MHCC01-001005-2019)
Laxmi B. Metkari,
Adult, Indian Inhabitant,
R/at: Sankalp Siddhi Tower,
A-Wing, Room Nos.103 & 104,
1st Floor, E.S.Patanwala Marg,
Byculla(East), Mumbai-400 027 ... Appellant
Versus
1. Executive Engineer,
North Mumbai Division,
Public Works Department,
Andheri(West), Mumbai-400 058.
2. The Competent Authority,
Brihanmumbai, having its office
at 404, 4th Floor D.D. Building,
Old Customs House, Shahid Bhagat
Singh Marg, Fort, Mumbai-400 001.
3. State of Maharashtra,
Mantralaya, Mumbai-400 032. ..Respondents
CORAM: H.H.THE PRINCIPAL JUDGE
S. B. AGRAWAL (C.R.No.19)
DATED: 9th MARCH, 2021
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Appearance:-
Adv. Mr. Aseem Naphade a/w Adv.Satchit Bhogle i/b M.P .Rege & Co.,
for appellant.
Adv. Mr. Abad Ponda a/w Sr.Adv. M.B. Jadhav,
for respondents.
ORAL JUDGMENT
Order passed by the Competent Authority i.e. Respondent No.2
under The Bombay Government Premises (Eviction) Act, 1955 on
29.12.2018 directing eviction of the appellant from the premises
admeasuring 500 sq.ft. situate at J.P.Road, Andheri(W), Mumbai- 400
053 (hereinafter referred to as the ‘subject premises’) is assailed in the
present appeal.
2 The facts material for disposal of this appeal are as under:
Respondent No.3 i.e. State of Maharashtra in the year 1979 had
allotted the subject premises to Balasaheb Krishnarao Chavan for
running a flour mill. On 17.11.1980 said Balasaheb Chavan entered
into partnership deed with the appellant to run the flour mill. On
15.5.1981 the partnership was dissolved and the appellant took over
the entire business of running the flour mill. On 13.6.1984 the appellant
entered into the Lease Agreement with respondent No.1 for a period of
3 years and the rent was Rs.300/- per month. The lease was terminable
by Respondent No.3 by giving one month’s notice, if the premises were
required for any other Government purpose and the appellant was
required to use the premises for the purpose for which it was allotted
and it could not be used for residential purpose and the appellant was
not entitled to sublet or encumber the subject premises.
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(ii) The lease was renewed from time to time till 2004 and in the
meanwhile on 1.7.2002 rent was increased to Rs.5,000/- per month.
Thereafter on 11.6.2004, it was further increased to Rs.7500/- per
month and subsequently, upon oral directions of officials of respondent
No.1, the appellant was paying rent of Rs.12,000/- per month. Said
amount of rent was continued to be paid till date.
(iii) Lease of the appellant expired on 28.9.2004 and in the year 2007,
respondent No. 3 directed the residents of Government Colony at
Andheri(W), where the subject premises are situated to vacate their
respective premises and shifted them to Chunabhatti. This resulted in
reduction of turnover of the appellant by 80% and consequently, her
income was also reduced.
(iv) On 3.4.2008 respondent No.3 issued a G.R. reducing the monthly
rent in respect of shops at Bandra Government Colony from Rs.15/- per
sq.ft. to 70 Paise per sq.ft. which was the original rent and as such, on
12.7.2008 the appellant addressed a letter to the Minister of State for
Civil and Food Supplies as also to the Minister of State for Public Works
pointing out the sudden and drastic increase in rent and vide letter
dt.27.8.2008 made a representation with respondent No.3 to reduce the
rent as per G.R.
(v) On 31.8.2009 respondent No.3 issued a G.O. to develop Udyog
Bhavan on the land where the subject premises is also situated. The
appellant made applications with respondent No.3 for renewal of lease
and reduction of rent. She also made application to the Chief Minister
in this regard.
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(vi) On 11.8.2016 the Developer appointed to construct Udyog
Bhavan addressed a letter to the Development Commissioner to remove
encumbrances at the site and accordingly, on 20.12.2016 respondent
No.2 issued show cause notice to the appellant u/s. 4(2) of The Bombay
Public Premises (Eviction) Act.
(vii) The appellant replied the said notice on 10.1.2017 and
respondent No.1 addressed a letter to respondent No.2 on 13.2.2017 to
get the premises vacated. Son of the appellant attended the office of
respondent No.2 and was asked whether he was willing to clear the rent
and accordingly, the cheque of Rs.50,000/- was issued towards arrears
of rent on 6.3.2017 and thereafter on 14.3.2017 further cheque for
Rs.11,16,000/- towards arrears of rent was also issued and thereafter
respondent No.2 on 30.3.2017 passed the order of eviction. The
appellant then filed appeal before this Court bearing appeal No.74 of
2017 against order of eviction on 25.4.2017. Said appeal came to be
dismissed on 14.9.2017.
(viii) Review Petition filed against the said order was also dismissed.
The appellant preferred Writ Petition before the Hon’ble High Court and
the Hon’ble High Court passed order on 15.12.2017 thereby setting
aside order impugned in the petition and remanded matter back to
respondent No.2 for initiating fresh action against the appellant and
consequently on 9.4.2018 again the show cause notice was issued to the
appellant to which the appellant replied and upon conclusion of
hearing, the order impugned came to be passed.
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3. It is contended by the appellant that Under Secretary of General
Administration Department on 1.8.2017 has informed respondent No.1
that respondent No.3 was considering its policy in respect of
commercial leases in Mumbai Suburban Division and Government
residential colony in Bandra (E) and directed him not to initiate eviction
proceedings against authorized Gala holders only on account of their
lease having been expired.
4. It is contended by Ld. Counsel for the appellant that purpose of
the Government for which the appellant is sought to be evicted has not
been established and that project of the Government could be
implemented even without evicting the appellant and appellant is being
singled out by the State resulting in violation of Article-14 of the
Constitution of India. Although another ground of proceedings being
barred by limitation was raised, however, it was not pressed into
service.
5. Ld. Counsel for respondents on the other hand contended that
project of the Government could not be completed because of the
appellant and her possession in the part of the premises where the
project has been undertaken. He also submits that policy of the
Government purportedly tried to be made out by the appellant was a
general policy and could not be made applicable to the specific case of
the appellant when the subject premises were required for the project of
the Government. He then submits that when the lease has been
admittedly expired long back, the possession of the appellant over the
subject premises cannot at all said to be authorized and there cannot be
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any semblance of right in the appellant to continue in the subject
premises. Thus, according to him, the order of eviction passed by the
Competent Authority cannot be faulted with.
6. In such circumstances, following points arise for my
determination and my findings thereon for the reasons thereof are as
under:
POINTS FINDINGS
1. Whether the appellant is in unauthorized
occupation of the public premises and she is
liable to be evicted.?
..In the affirmative
2. Whether the impugned order warrants
interference in appeal?
..In the negative.
3. What Order ..As per final order
R E A S O N S
As to Point Nos. 1 and 2:
7. It is a trite law as has been laid down by the Hon’ble High Court
in the Case of Minoo Framroze Balsara Vs. Union of India and Ors.
( AIR 1992 Bom 375) that under the Public Premises Act, Estate Officer
should not just form an opinion that the addressee of the notice is in
unauthorized occupation of the public premises, however, it is also to be
satisfied that he is liable to be evicted. Similar analogy will apply to the
proceedings under The Bombay Government (Eviction) Act and what is
required to be seen is whether both these criteria have been established
in the present case.
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8. As far as being in unauthorized occupation is concerned, it is an
admitted position that the lease of the appellant over the subject
premises has expired and has not been renewed after expiry thereof.
Thus, as far as question of unauthorized occupation is concerned, it is
abundantly clear that the occupation is unauthorized. Thus, what is
required to be seen is whether the second part of the criterion is
fulfilled or not? In this regard, it is contended by Learned Counsel for
the appellant that respondents have not filed any documentary evidence
on record to show the existence of the Government project.
9. It is to be noted that the Government order in that regard dt.
31.8.2009 for construction of Udyog Bhavan is referred to by the
Competent Authority. The existence of this document has not been
disputed by the appellant.
10. It is then contended by Ld. Counsel for the appellant that specific
issue in that regard has not been framed by the Competent Authority
and the burden in that regard was upon respondents u/s. 101 of Indian
Evidence Act as has been laid down by the Hon’ble Supreme Court in
the case of New India Assurance Company Ltd. Vs. Nusli Neville Wadia
and Anr. [2008 (3) SCC 279 ]. It is to be noted that although the
burden of proving the existence of Government project is that of the
respondents but then the same cannot equated with the burden of
proving bonafide requirement in proceedings under Rent Legislation.
The Proceedings under The Bombay Government Premises (Eviction)Act
are summary in nature and it is only initial burden to make out a case
of noticee being liable to be evicted, that rests on the respondents and
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to make out the same, reference to the Government order dt.30.8.2009
would suffice the purpose and from this order it is clear that
construction of Udyog Bhavan i.e Government project is proposed on
the subject premises. Thereafter it would be incumbent on the appellant
to point out that requirement of Government on this count is not well
founded or for that matter is malafide or a colourable exercise of power.
However nothing in this regard, has been made out by the appellant.
11. Second contention of Ld. Counsel for the appellant is that project
of the Government can be implemented without evicting the appellant.
It is also contended by Ld. Counsel for the appellant that Competent
Authority ought to have appointed an expert to ascertain this aspect but
this was not done by the Competent Authority. In fact, if this was the
case of the appellant, it was for the appellant to make a good that case
rather than expecting the Competent Authority to do so.
12. Moreover, it is the specific stand of the respondents that the
structure is hurdle for the project. Although at one stage it is stated by
the respondents that it is hurdle for completion of the project and at
another stage, it is stated that appellant’s structure is hurdle for the
implementation of the project but that may not be of any consequence.
13. Infact after coming to the conclusion that appellant is in
unauthorized occupation of the subject premises, the observations made
by the Hon’ble High Court in the case of Minoo Balsara (supra) that
the Competent Authority ought to ensure satisfaction of the second test
i.e.
“and that he should be evicted” cannot be stretched too far and
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public projects cannot be allowed to be hampered because of individual
occupants who are admittedly in unauthorized occupation of the
premises.
14. As far as appellant being singled out by the State is concerned,
there cannot be an interpretation of Article -14 of Constitution of India
in such negative manner and in any case, the appellant cannot claim
protection on this count when there is specific assertion of the
respondents that the subject premises are required for their project and
and that is an impediment in the project.
15. Ld. Counsel for the appellant has also relied upon the judgment
of the Hon’ble Supreme Court in the case of
Ashoka Marketing Vs.
Punjab National Bank [(1990) 4 SCC 406) wherein it is observed that
State cannot act like a private landlord in such eviction proceedings.
Reliance upon this judgment appears to be wholly misplaced.
16. It is then finally contended that show cause issued by the
respondents was quite vague and did not make out a ground of eviction.
Reliance is also placed on the judgment of the Hon’ble Supreme Court
in the case of Gorkha Security Services Vs. Government (NCT of Delhi)
and Others [(2014) 9 Supreme Court Cases 105]. If we consider
judgment relied upon, it was case of blacklisting of a contractor and in
the show cause notice, there was no reference to the said outcome and
the show cause notice only mentions that costs were liable to be levied
and other actions taken as deemed fit and it is in these circumstances
that the Hon’ble Supreme Court has held that order of blacklisting was
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liable to be quashed.
17. In the present case it is clearly made out to the appellant that she
was in unauthorized occupation and that premises were required for the
Government project and that she was liable to be evicted. Furthermore,
if we consider the reply given by the appellant to the show cause notice
in this appeal, it would be amply clear that appellant was very well
aware of the entire factual scenario that had led to the issuance of show
cause notice against her.
18. In earlier round of litigation, since the ground of requirement was
not considered by the Competent Authority and was taken into
consideration by this Court during arguments of the appellant, the
matter was remanded back to the Competent Authority. However after
the remand, the appellant has got sufficient opportunity to deal with
this aspect of the matter as well and considering all the aforesaid
aspects, I have no hesitation to hold that not only the appellant is in
unauthorized occupation of the public premises but that she should be
evicted there from. In such circumstances, I answer all the points
accordingly, and proceed to pass the following order.
ORDER
Misc. Appeal No. 34 of 2019 stands dismissed.
(S. B. AGRAWAL)
9.3.2021 PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 9.3.2021
Transcribed on : 9.3.2021
Signed by HHJ on : 9.3.2021
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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: 10.3.2021 (at 11.40 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 9.3.2021
Order signed by P.O. on 9.3.2021
Order uploaded on 10.3.2021
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