Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal17.18
Received on : 25/01/2018
Registered on : 29/01/2018
Decided on : 16/03/2018
Duration : Y M D
00 01 16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.17 of 2018
Smt.Vaijayanti B. Pawaskar
Vendor stall holder in
Aarey Milk Colony,
Goregaon(E), Mumbai65
Since deceased through legal heirs
1 Nilesh Bhagvan Pawaskar(Son)
age 51 years
2 Ms.Kumuddi Bhagvan Pawaskar
(daughter), aged 49 years
3 Mahesh Bhagvan Pawaskar (Son)
aged 43 years
4 Ms.Sangeeta Pawaskar (daughter)
aged 39 years
All residents of Aaisaheb Bunglow,
Royal Hill compound, New MHADA
Colony, Dindoshi, Goregaon(E),
Mumbai65 ..Appellants
V/s.
1 Chief Executive Officer
Aarey Milk Colony,
2 Competent Authority
for Gr.Mumbai
3 State of Maharashtra ..Respondents
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Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 16th March,2018
(C.R.No.19)
Advocate Mr.Nilesh Pawaskar for appellants.
Advocate Mr.M.B. Jadhav for respondents.
O R A L J U D G M E N T
Order of eviction dated 27th December,2017 in respect of
land near Central Diary in parking place, Aarey Milk Colony, Mumbai
65 is assailed in the present appeal under Section 7 of Bombay
Government Premises (Eviction) Act,1955 (hereinafter referred to as
“the Act”).
2 Undisputedly, the inquiry premises was allotted to
Smt.Vaijayanti B. Pawaskar by an agreement of lease dated 12th
June,1990 for a period of three years from 1st October,1988 to 31st
October,1991. It is not disputed that the said licensee has expired and
the present appeal is filed by her legal heirs i.e. two sons and two
daughters.
3 It is the case of the appellants that after the expiry of lease
agreement, the appellant asked for the renewal of the agreement but
the same was avoided by the respondent by saying that they would do it
shortly. But nothing happened till year 2000. In the year 2000
suddenly one notice was issued to the appellant to vacate the premises,
the appellant requested not to take any such action.
4 The appellants state that respondent thereafter, filed an
eviction case before the Competent Authority vide Case No.22849 and
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accordingly, a show cause notice u/s Section 4(2) of the Act were
issued to them by the Competent Authority. The Competent Authority,
on hearing both the sides, dismissed the eviction proceeding vide its
order dated 3rd February,2003 and directed the respondents to execute
a fresh license agreement with appellants with increased amount of
license fee and difference of amount of arrears of compensation etc.
5 The impugned order was challenged by respondent no.1
before this court in Misc. Appeal No.47/2003. The predecessor of this
court found both the notices defective i.e. notice sent by the C.E.O. and
the section 4(2) show cause notice sent by Competent Authority. The
predecessor of this court by a judgment dated 28th June,2007 dismissed
the appeal with the liberty to issue fresh notice as per law.
6 The impugned judgment of the appellate authority was
challenged before the Hon’ble High Court in Writ Petition
No.5032/2012. The Hon'ble High Court did not interfere with the
orders of both the courts below. The Hon’ble High Court held that since
the show cause notice was not in accordance with law, the liberty was
granted to initiate fresh proceedings.
7 Thereafter, on 10th December,2013 the fresh notices were
issued to the appellants directing their eviction on the ground of
determination of lease and 30 days time was granted to vacate the
premises. As the notice was not complied with, the respondent no.1
filed proceedings for eviction before the Competent Authority wherein a
show cause notice u/s 4(2) of the Act was again issued. Ld.Competent
Authority passed the order of eviction on 5th August,2015 against the
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appellants.
8 The impugned order was assailed before this court with the
grievance that the principles of natural justice were not followed by the
competent authority. The predecessor of this court by an order dated
12th July,2016 set aside the order dated 5th August,2015 and directed
the Competent Authority to afford opportunity of hearing to the
appellants. The Competent Authority, thereafter, gave an opportunity
of hearing to the occupants and passed the impugned order on 27th
December,2017 directing the occupants to remove themselves from the
inquiry premises.
9 I have heard ld.counsel Mr.Pawaskar for the appellants and
Ld.counsel Mr.Jadhav for respondents.
10 It is contended by the ld.counsel for the appellants that
again the present case is fit for remand on the ground that the
Ld.Competent Authority did not consider the submissions made before
it and the citations referred. The impugned order is without reasons. It
is also contended that there is no breach of condition or irregular
payment of rent. The respondent no.1 continued to accept rent without
any demure which is nothing but an implied contract between the
parties and therefore the occupation of the appellants cannot be said to
be an unauthorized occupation. It is also contended that the first order
of the competent authority was finally heard and decided on merit by
the competent authority and as such the impugned order for eviction is
hit by the principle of res judicata. The ld.counsel pressed for setting
aside the impugned order.
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11 On the contrary, ld.counsel for the respondent no.1, while
supporting the impugned order, submitted that all the earlier orders
have been merged in view of the liberty of issuing fresh notice was
granted by the predecessor of this court and it was approved by the
Hon'ble High Court in its order dated 5th August,2013. The ld.counsel
further contended that whatever rent was collected by the Government
was towards unauthorized occupation charges.
12 I have considered the submissions on behalf of both the
parties. The following points arise for my consideration and my
findings thereon for the reasons therefor are as under:
POINTS FINDINGS
1 Whether the notice u/s 4(2) ..In the affirmative
of the Act is as per law?
2 Whether the appellants can be
termed as unauthorized ..In the affirmative
occupants?
3 What order? ..As per final order
R E A S O N S
13 Points no.1 to 3:
At the outset, admittedly there was no further renewal of
the lease agreement of 1988 which was for the period of three years. On
perusal of the said lease agreement of 1988, there is no clause for
renewal. The term of the lease was completed in September,1991.
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During the period between determination of the lease i.e. September
1991 and the first Quit notice in the year 2000, there was no action on
the part of the respondent no.1 for getting the premises vacated or to
renew the lease. Admittedly, the acceptance of rent with increased rent
for the premises was continued by the respondent no. 1. In the year
2000, the respondent no.1 directly sent quit notices in the year 2000 (as
referred in the order of the Competent Authority in eviction case
no.22849/01) for vacation of the enquiry premises. The respondent no.
1 initiated eviction proceedings on the basis of these notices before the
Competent Authority. The Competent Authority dismissed the eviction
proceeding inter alia on the ground of defective and incomplete notices
and in the said order however, it is observed that in view of these
notices the respondent cancelled the license to run the stall of the
appellants and with effect from 1st August,2000 the unauthorized
occupation of the appellants is proved. The said order was challenged
before this court in Misc.Appeal No.47/2003 wherein predecessor of
this court by its order dated 28th June,2007 dismissed the appeal
principally on the ground that the Chief Executive Officer from Aarey
Milk Colony had addressed a letter to the competent authority in
printed format disregarding the individual circumstances in respect of
allottees of the stall of the specific Government premises and the show
cause notice also appears on ready made printed formant with blanks
filled in and finally held that looking to the legal provision as also
provisions of written agreement of license, use of ready made printed
format by the appellants during the eviction proceedings and therefore
the order of competent authority dismissing the case was held proper
and Chief Executive Officer, Aarey Colony was given liberty to start a
fresh proceeding against licensee with adequate documentary evidence
and by following the procedure properly as contemplated under the
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Bombay Government Premises (Eviction)Act, 1958.
14 The Hon'ble High Court, in Writ Petitions filed by the
Government against various stall holders, by way of common judgment
dated 5th August,2013, confirmed the order of the predecessor of this
court and held as under:
“On hearing the learned counsel for the
parties and on a perusal of the impugned orders, it
appears that there is no scope for interference with the
impugned orders in exercise of the writ jurisdiction.
The authorities found, on an appreciation of the
material on record and on a consideration of the
provisions of Section 4 of the Act, that the notices were
not issued by the State to the respondents in accordance
with the provisions of Section 4 of the Act. The notices
were issued to the respondents in printed forms and the
blanks in the printed form were not filled in respect of
the some of the respondents. The grounds of eviction
could not be guaged from the irregular notices. Since
the notices were not issued to the respondents in
accordance with law, the authorities rightly held that
the petitioners could not have filed the eviction cases
against the respondents on the basis of such defective
notices. In fact, the appellate authority had granted
liberty to the petitionerState Government to initiate
fresh action against the respondents by following the
procedure prescribed by the provisions of the Act. The
orders appears to be just and proper and call for no
interference in exercise of the writ jurisdiction.”
15 In view of the above circumstances, the respondent no.1
herein again issued notice of eviction dated 10th December,2013
individually against the appellants mentioning therein that the period of
the agreement dated 12th June,1990 had already been determined and
the appellants did not restore the possession which is serious in nature
amounting to breach of terms and conditions of the agreement. One
month’s time was given to vacate the inquiry premises
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16 Now the moot question before this court is to decide the
legality of the notices issued by the CEO of Aarey Colony and by the
competent authority u/s 4(2) of the Act. For this purpose it would be
advantageous to look into the relevant clauses in the agreement of
lease between the parties, which are reproduced below for ready
reference.
Clause 16 “The permission granted to the Licensee is
subject to the condition that he would vacate the premises within one
month’s notice time when called upon by the Chief Executive Officer,
Aarey.”
Clause 20 “On determination of this agreement the
Licensee shall hand over to the Licensor vacant and peaceful possession
of the said premises and in the same condition in which they were at
the time of possession thereof was handed over to the Licensee.”
Clause 21 “If the Licensee fails or neglects to duly observe
and perform the terms and conditions of this agreement or if the
Licensee commits a breach of any of the terms and conditions hereof
then without prejudice to any other rights remedies and powers of the
Licensor, the Licensor shall be entitled to forthwith terminate this
agreement and to forfeit the entire amount of the security deposit or
such part thereof as may be necessary and to appropriate the damages
sustained by the Licensor as a result thereof of any claim which may at
any time be made by or on behalf of the Licensee from or against the
Licensor under this agreement or against Licensor in respect thereof or
in satisfaction of any money due to the Licensor hereunder.”
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17 In the instance case, the second round of eviction
proceeding was initiated by eviction notice dated 10th December,2013
by C.E.O., Aarey to the appellants followed by eviction proceedings
before the Competent Authority.
18 As per SubSection (2) of Section 4 of the Act, it is
mandatory on the part of the Competent Authority to issue notice in
writing calling upon all persons concerned to show cause why an order
of eviction should not be made, specifying in the notice the ground on
which the order of eviction is proposed to be made and require all the
persons concerned to show cause, if any, against the proposed order, on
or before such date as is specified in the notice.
19 Section 12 of the Act empowers the State Government, by
notification in the official Gazette to make rules for carrying out the
purposes of this Act. Accordingly the Bombay Government Premises
(Eviction) Rules have been framed. Rule 3 prescribes the Form of
notice to be given under Section 4(b) i.e. in Form B as provided in the
Schedule.
20 Ld.Counsel for the appellants submitted that once the order
of dismissal is passed by the Competent Authority, the same issue
cannot be decided again in view of bar of principal of resjudicata. I am
not convinced with this arguments. Firstly, Hon’ble High Court, while
confirming the order of the predecessor of this court, granted liberty to
the C.E.O. to issue fresh notice. In view this, all the three level
proceedings came to naught. Secondly, though the order of Competent
Authority was confirmed up to the level of Hon'ble High Court,
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however, as stated earlier, the Competent authority found the notice
which was sent by the C.E.O., Aarey was incomplete and defective.
While the predecessor of this court, the appellate authority found both
the notices i.e. of C.E.O. and of the Competent Authority under Section
4(2) of the Act were not as per law. The Hon'ble High Court again
found notices of Competent Authority was not as per Section 4 of the
Act as it were in printed format with blanks not filled in, in cases of
some of the occupants. Unfortunately, the copies of the said notices are
not available before this court in the record.
21 In this context, it is necessary to be mention
here that the earlier eviction proceedings,which were filed against
similarly situated five different occupants including the present
occupant, were tried and decided jointly at all three levels i.e. before
the competent authority, the City Civil Court/appellate authority and
the Hon’ble High Court. As it were decided by common judgment, the
Hon'ble High Court while granting liberty to the C.E.O., Aarey for fresh
notice observed that in some of the cases of the occupants the blanks
and the formats have not been fully filled up.
22 The present case in hand is a case of one individual
occupant. I minutely perused the notice dated 10th December,2013
issued by C.E.O., Aarey and the notice under Section 4(2) of the Act
issued by the Competent Authority. At the costs of repetition, the notice
of C.E.O. mentioned the ground about the determination of the lease
dated 12th June,1990 and since then the lessee did not restore the
possession as agreed, which is serious in nature and amount to breach
of conditions.
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23 Section 4(2) notice dated 27th December,2017 i.e. in the
format as provided in the Rules, is an individual notice issued to the
appellants and the grounds of eviction have been mentioned in Clauses
3 and 4. Clause 3 states that the term of the agreement for the
Government premises has been determined and therefore they
committed breach of the conditions for which the lease was granted and
as such the occupation is in an unauthorized possession.
24 Section 4(2) of the Act requires the Competent Authority to
specify grounds on which the proposed order of eviction is to be made.
The format of notice in Form B is given in the schedule of the Bombay
Government Premises Rules,1960 which prescribes the following
grounds of eviction:
i) That you have not paid rents lawfully due from you for
more than two months commencing from ….... in respect
of the premises described in the Schedule appended hereto;
ii) that you have sublet, without the permission of the
Government or of the competent authority, the whole or
part of the premises described in the Schedule appointed
hereto;
iia) that you have committed, or are committing, such acts of
waste as are likely to diminish materially the value or
impair substantially the utility, of the premises described in
the Schedule appended hereto;
iii) that you have …..... and thereby have acted in
contravention of the terms under which you were
authorised to occupy the premises described in the
Schedule appended hereto;
iv) that you are in unauthorised occupation of the premises
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described in the Schedule appended hereto;
v) that the premises described in the Schedule appended
hereto are required for Government purposes.
25 The Competent Authority in its aforesaid notice ticked the
ground nos. 3 to 5 i.e.
3½ vuqlqphr uewn LVkWyps djkjukek eqnr laiq”Bkr vkyh vkgs vkf.k T;k
vVhoj] g;klkscr tksMysY;k vuqlqphr o.kZu dsysY;k tkxsr ofgokV dj.;kl rqEgh
izkf/kd`r >kyk gksrk] R;kps R;keqGs mYya?ku dsysys vkgs-
4½ g;klkscr tksMysY;k vuqqlwphr o.kZu dsysY;k tkxspk rqeP;kdMs rkck
vuf/kd`r vkgs-
5½ g;klkscr tksMysY;k vuqlwphr o.kZu dsysY;k tkxsph 'kkldh; iz;kstuklkBh
vko';drk vkgs
26 In the aforesaid notice, all the relevant blanks have been
duly filled in. The notice is as per format as prescribed under Rule 3
Form B of the Bombay Government Premises (Eviction) Rules, 1960. As
stated earlier, I do not have the copy of notice under Section 4(2) of the
Act issued in the eviction proceedings no.22849/01 by the Competent
Authority which was found to be defective by the predecessor of the
court and the Hon'ble High Court, for appreciation and comparison.
The ld.counsel for the appellants again termed this notices as defective.
27 The ld.counsel for the appellants in his compilation has
appended a copy of the order of the predecessor of this court in the case
of Mohan Rama Shetty (Misc. Appeal No.74/2015) whose case is
similarly situated with the case of the present appellants, by judgment
dated 16th August,2016 allowing the appeal against the eviction order,
by observing that the show cause notice dated 30th July,2014, (para
nos.3 and 4) thereof have been ticked marked suggesting that since the
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appellant has committed breach of the terms and conditions of the
agreement, his possession has become unauthorized and liable to be
erected. The predecessor of this court has observed that it is absolutely
unclear as to what are the conditions that have been violated by the
appellant and how the possession of the appellant has become
unauthorized. However, the said notice dated 30th July,2014 in the
case of Mohan Rama Shetty is again not a part of the record for
appreciation and comparison.
28 In the case in hand, the reasons specified in the notice
under Section 4(2) of the Act is determination of the period of the
contract. It is necessary to see the circumstances in which this notice
was issued. This notice was issued in 2013 after under going first round
of eviction proceeding which was initiated in 2000. In 2000 when the
quit notice for eviction was issued, it was but natural for the appellants
to get surprised when since 1991 no action for eviction was taken and
on the contrary they accepted the increased amount of rent. As
discussed earlier, the agreement of lease in clear terms enumerates the
Clause for determination of the lease which requires the lessee to hand
over possession of the inquiry premises.
29 The ld.counsel for the appellants argued that acceptance of
rent since 1991 till 2013 amounts to implied contract between the
parties and hence he cannot be termed as the unauthorized occupant to
be evicted under Section 4 of the Act. I am not impressed with this
argument for the reason that, firstly, Section 4 of the Act explains the
expression “unauthorized occupation” in relation to any person
authorized to occupy any Government premises, which includes the
continuance in occupation by him or by claiming through or under him
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of the premises after the authority under which he was allowed to
occupy the premises has been duly determined.
30 In the instant case, undisputedly, entry of the occupant to
the inquiry premises was legal. However, even after determination of
the lease period, he continued to be in occupation of the premises
amounts to his unauthorized occupation. Nothing is brought to the
notice of this court as to how inaction on the part of the Government for
not evicting him for a long time converts the lease for a limited period
into a lease in perpetuity by implication.
31 The Hon'ble Bombay High Court in the case of
Mrs.Komalam Vardarajan V/s. The Union of India and another,
reported in AIR 1997, Bombay 57 held that delay in initiating eviction
proceedings cannot enable the occupant to continue in possession for an
indefinite period.
32 Ld.counsel for the appellants also questioned the impugned
order and pressed for remand of the case on the ground that the
ld.Competent Authority did not consider all the citations as referred by
the appellants and in support of his argument he relied on the judgment
of the Hon'ble High Court in the case of Manoj Ganpatlal Chamedia
V/s. Hariom Chaganlal Jaipuriya & anr., reported in 2016(1) ALL
MR 526 and judgment in the case of State of Goa V/s. Modusudan
Camotin Timblo(D), reported in 2013(5)Mh.L.J.233. I have perused
both the judgments. There is no doubt that the rulings which have been
referred by the parties have to be discussed in the judgment and the
judgment should be a reasoned and speaking order.
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33 However, in the present case, the adjudicating authority is
the competent authority i.e. a quasi judicial authority not expected to be
well versed in law and its application alike a judicial officer. His orders
should be a speaking and reasoned but not expected to be lengthy
orders warranting remand in the summary proceedings under The
Bombay Government Premises (Eviction) Act, with the object of
expeditious disposal. The sine quo non in the proceedings before the
quasi judicial authority is to follow the principles of natural justice. The
object and purpose of the Act is different than regular other eviction
laws i.e. Rent Act etc. In such circumstances, it cannot be said that the
order of Competent Authority is required to be set aside and remanded
back to reconsider. In the impugned order, the Ld.Authority considered
precisely what was argued and necessary for decision. I do not find any
glaring error on the part of the Competent Authority warranting
remand of the matter only for the reason that the citations have not
been considered.
34 As per Order 22, Rule 6 of Code of Civil Procedure, there is
no abatement of the proceeding by reason of the death of either party
between the conclusion of the hearing and pronouncing of the
judgment. The judgment may in such case be pronounced
notwithstanding the death and shall have the same force and effect as it
has been pronounced before the death took place.
35 As per Section 7 of the Act, an appeal shall lie from every
order of the competent authority, made in respect of any Government
premises to an appellate officer and with the necessary modifications,
follow the practice and procedure prescribed for appeals from original
decrees to a District Court by the Code of Civil Procedure. In view of
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this legal position, the order of the Competent Authority in the present
case, is binding on his legal heirs i.e. the appellants.
36 In such circumstances, I hold that notice issued by C.E.O.,
Aarey to the appellants is legal and proper and the consequent notice
under Section 4(2) of the Act by the Competent Authority is as per law
and the impugned order is passed on merit after hearing both the
parties and is legal, proper and correct. The occupation of the inquiry
premises by the appellants have become unauthorized since the date of
expiry of 30 days from the date of receipt of the notice. Hence, I
answer all the points accordingly and pass the following order:
O R D E R
Misc.Appeal No.17/18 stands rejected.
16/03/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 16/03/2018
Transcribed on : 17/03/2018
Signed by HHJ on :
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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: 09/04/2018 (4.000 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 13th March,2018
Order signed by P.O. on 9th April,2018
Order uploaded on 9th April,2018
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