Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHCC010019082019 Received on :: 05.02.2019
Registered on :: 20.02.2019
Decided on :: 18.07.2023
Duration :: Y-04:M-05:D-13:
Exhibit ::
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.71 OF 2019
1. Mrs. Babibhai H. Pawar,
Age : 83 years,
Through POA Mr.Suresh Harichandra
Pawar,
Room No.1468, Gate No.6, Malvani
Municipal Colony, Malad(W),
Mumbai-400 095.
... Appellant
Versus
1. Municipal Corporation of Greater
Mumbai,
(Through the Municipal
Commissioner),
Mahanagar Palika Rd.,
Opposite CST Station, Fort,
Mummbai – 400 001.
2. Mr.Dilip Parab,
The Rent Supervisor,
“K” West-Ward Office, Andheri,
Mumbai-400 065.
3. Smt.Vandana B. Sawant,
Enquiry Officer,
“K” West-Ward Municipal Office
Building, 4th Floor, S.V. Road,
Andheri (West), Mumbai-400055. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI. A.SUBRAMANIAM(C.R.No.19)
DATED : 18th JULY, 2023
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Ld.Advs.Aloukik Pai a/w Akshay Pai a/w Maansi Gupta a/w Apurva
Bhat for appellants.
Ld.Counsel Dharmesh Vyas a/w Adv.Som Sinha and Adv.Sunil
Khandagale for respondents/BMC.
ORAL JUDGMENT
1. By these set of appeals, the appellants are challenging the
impugned orders passed by the learned Competent Authority in
the proceedings initiated U/s.105B rejecting the applications of
the applicants on various grounds therein inter-alia praying for
stay of the proceedings or transferring the proceedings to the
Competent Court etc.
2. The facts of the case pertains to the proceedings relating to the
eviction proceedings against the alleged erstwhile employees on
determination of their services on account of retirement/
termination. Pending these proceedings, number of applications
came to be preferred alleging that rules U/s.105H are not framed
and in absence thereof proceedings cannot be go ahead. It is
further pointed out that the present forum has been given
extensive powers and there is arbitrary power vested and
discretion violating principles of natural justice. It is further
contended that there is bias against Inquiry Officer as the
Municipal Commissioner is the adjudicatory authority and has
taken contrary stand. Competent Authority is delegate of
Municipal Commissioner and thus there is bias of nature of
institutional bias and hence violation of proceedings. There is
novation because of conduct and subsequent events, and same
has been acted upon, that the possession is protected invoking
U/s.53A of Transfer of Property Act, namely part performance
and that has to be considered. Various detailed issues or technical
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issues are involved which the Competent Authority will not be
able to decide and hence appropriate Civil Court should decide
the said dispute. There are different circumstances which have
arisen and considering the same these aspects have to be
considered by the Competent Authority. Considering all the
innovative complex issues involved, the proceedings should not
be proceeded by the Competent Authority. There is issue as to the
powers of the Commissioners and powers enforcing the
resolution which will result in bias and effect of binding nature of
Municipal Commissioner requiring to be decided which cannot be
done by the Competent Authority who is delegate of the
Municipal Commissioner. The same order has been copied. In
such circumstances, the proceedings should be stayed.
3. The claims of the appellants are vehemently opposed by the
respondents contending that the said applications are nothing but
eyewash and to protract and prolong the proceedings in various
proceedings. The appeals itself are not maintainable as they are
against interlocutory procedural order passed by the Competent
Authority. It has been held that the appellants have no right to
continue occupation considering the same they are only buying
time to protract the proceedings. There is no force in the
contentions raised. There is no agreement and hence Section
53A of T.P. Act is not applicable, all legal contentions if any , can
competently be decided by the concerned Competent Authority.
The concerned Competent Authority is in fact well-verse aspect
relating to municipal properties as well as the allotment of houses
and quarters to the municipal employees and other relating
aspects to the municipal properties. Nothing complex aspects
arises, which the Competent Authority cannot decide. In such
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circumstances, the entire basis of the claim of the appellants are
not maintainable. Considering the same appeals be dismissed.
4. Perused the appeal, record filed, considered the submissions,
following points arise for my consideration and I answer the same
as under for the reasons stated hereinafter;
Sr.
Nos POINTS FINDINGS
1 Whether the appeals are
maintainable?
:: In the
negative
2 Whether the impugned orders
requires interference?
:: Does not arise and
if arises In the
Negative
3 What order? :: As per final order
REASONS
As to point No.1:
5. It is necessary to point out that the proceedings are initiated
U/s.105B of the MMC Act. Said provision was brought into force
by an amendment in the year 1960. The said amendment and
powers were challenged before the Hon’ble Supreme Court of
India in the case of Maganlal Chhaganlal (P) Ltd. V/s. Municipal
Corporation of Greater Bombay and Others (1974)2 Supreme
Court Cases 402 in the Hon’ble Supreme Court of India and also
considered in the case of Bibi Batool Jafer Gulam Hussein V/s.
The Principal Judge, City Civil Court, Bombay 1967 SCC Online
Bombay in the Hon’ble Bombay High Court. It is well settled now
that the said provisions do not violate the constitutional
proceedings and their constitutional validity has been upheld and
so also the aspect of bias. The delegation of the powers also been
considered to the valid delegation.
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6. It is necessary to consider the facts that in view of these
circumstances one has to consider the provisions of Section 105
of the MMC Act. Much was harped upon the words “every order”
that appears in Section 105F of the MMC Act. It reads thus:-
“105F. Appeals.
(1) An appeal shall lie from every order of the
Commissioner, made in respect of any corporation
premises, under section 105B or section 105C, to an
appellate officer who shall be the principal Judge of the
City Civil Court of Bombay or such other Judicial officer in
{Brihan Mumbai} of not less than ten year's standing, as
the principal Judge may designate in this behalf.
(2) An appeal under sub-section (1) shall be preferred,-
(a) in the case of an appeal from an order under section
105B, within thirty days from the date of the service of the
notice relating to the order under sub-section(1) of that
section, and
(b) in the case of an appeal from an order under section
105C, within thirty days from the date of the service of the
notice relating to the order under sub-section(1) or (2) of
that section, as the case may be:
Provided that, the appellate officer may entertain the
appeal after the expiry of the said period of thirty days, if
he is satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time.
(3) Where an appeal is preferred from an order of the
Commissioner, the appellate officer may stay the
enforcement of that order for such period, and on such
conditions as he deems fit.
(4) Every appeal under this section shall be disposed of by
the appellate officer as expeditiously as possible.”
7. No doubt if one considers the provisions as regards the
maintainability of appeal, it is well settled that there has to be a
specific provision for appeal to be maintainable and filing of an
appeal is a statutory right which has be specifically laid down.
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8. The aspect of “every order” was stressed upon by considering the
judgment of Shah Babulal Khimji V/s. Jayaben D. Kania and Anr
(1981)4 Supreme Court Cases 8 which relates to Letters Patent
Appeals, Bhartiben Shah V/s. Gracy Thomas and Others W.P.
No.9562 of 2010 (2013(1)CTC 833 which relates to the powers
of revision under the Maharashtra Rent Control Act, Central Bank
of India Ltd. V/s. Gokal Chand (1967)1 SCR 310 which relates to
the powers of revision under the Delhi Rent Control Act. All the
three realms of Jurisdiction, there is no qualification and hence
required interpretation. Even in those cases the Courts have taken
a restrictive view and not all inclusive view relating to the term of
“ Every order”
9. The reliance is placed on Chandra Singh V/s 1st Addl.District
Judge (2004) ALL LJ 1120 which only speaks of final order is not
helpful to the appellants. It is apparent that the present
proceedings are quasi judicial proceedings and in such
circumstances the distinction of administrative and judicial order
will not arise and hence the judgment of Shankarlal Agrawal V/s.
Shankarlal Podar (1964)1 SCR 717 is also not applicable. The
judgment of State of Maharashtra V/s. Marwanjee F. Desai and
Ors. (2002)2 SCC 318 also relates to the final order passed in the
proceedings and not only order of eviction. Thus, even that
judgment does not support the appellants.
10. Before considering the aspect let us see what the Section 105F
contemplates. It starts with “An appeal shall lie from every order
of the commissioner” and is further qualified as “ ……. U/s. 105B
or Section 105C…….” It is further qualified by Section 105F sub-
section-2 which contemplates that the appeal referred to in Sub
Section (1) “An appeal under sub-Section(1) shall be preferred
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within 30 days of service of notice U/s.105B(1) and in case of
notice under sub-section-1 or 2 as contemplated U/s.105C of the
said Act.
11. Thus, what is contemplated is an appeal on service of notice in
Pursuance of order passed and as contemplated U/s.105B and
105C respectively. It does not merely end with Section 105C(1).
Thus, the notice of order contemplated by sub-section-1 of
Section 105B contemplates order of eviction . The Commissioner
is duty bound to hold enquiry prior to issuance of such order.
12. The providing of such limitation U/s.105F relating to after
notice of final order U/s 105B and Sec 105C of the MMC act
clearly contemplates the kinds of orders which are held to be
appealable U/s.105F of the Act. Thus, no appeal is provided
against interim order as can be considered permissible in the
revisional power under Rent Control Legislation. Thus, the
judgments and provisions of the Maharashtra Rent Control and
the Delhi Rent Control and the judgment of Bhartiben Shah and
Central Bank of India Ltd. are not applicable to the present case
as the scope laid down in said provisions are entirely different.
The appeal contemplated herein is qualified by the specific
limitation provided.
13. On consideration of provisions of Section 105B, the sub-Section-
1 contemplates categories of persons that can be asked to vacate
and said vacation is by serving notice, and ordering the person in
occupation to vacate. Sub-section-2 contemplates that before
making order, a notice has to be issued specifying grounds having
show cause considering extension and earth-fair enquiry. Thus,
only order, contemplated is order of eviction or not , after holding
an enquiry. In such circumstances, the provisions of Section
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105(C) of MMC are nearly similar. Section 105C(4) contemplates
that order of monetary claims will be made after issuance of
notice. Thus, if one read section 105B, Section 105C and Section
105F collectively it is apparent that only the final order passed on
the enquiry by the said Competent Authority is appealable. Thus,
the contention of the appellants that every order has
contemplated U/s.105F implies all orders is misconceived.
14. While interpreting the provisions certainly grammatical meaning
has to be considered as a whole provision and not taking out a
couple of words . The purport of the provisions is also required to
be considered. This is more so in this case as the provisions are
added as a subsequent amendment. The purport of including
Chapter-V-A as has been considered in the judgment of the
Hon’ble Supreme Court of India Maganlal Chhaganlal (P) Ltd. is
mainly of expeditious disposal of such kind of proceedings. If the
interpretation as contemplated by the appellants is considered
each and every word and sentence can be termed as an order and
hence appealable under the provisions of the Act. This would
defeat the entire purpose and scope of specially enacting Chapter-
V-A to the Act and providing of speedy efficacious in-house
mechanism and adjudication of such dispute. Even while
considering institutional bias the safeguard of judicial scrutiny in
appeal, post final order has been considered as an adequate
safeguard and not intermittent appeal and supervision.
15. Thus, considering the provisions in any circumstances and in
any manner whatsoever, there is no order passed under the
provisions of Section 105B and Section 105C and so also Section
105F does not contemplate any other orders than the final orders.
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In view of these circumstances, the present application and order
being interim order, same is not maintainable.
16. It was contended that there is judgment by my learned
predecessor holding appeal to be maintainable. There is also
another set of judgments of other learned predecessors that
appeal is not maintainable. Needless to say, law of precedent
does not apply to this Court. Thus, such judgment are not binding
on this court, as it has power to reconsider the provisions of law
and express its own view thereof. Needles to say the present issue
does not involve serious questions of law of such nature required
to be adjudicated solely by the Hon’ble High Court. Thus, I hold
that the appeals are not maintainable.
As to Point No.2:
17. In view of the finding to point no.1, I would be certainly entitled
to not proceed with the appeal’s finding and dispose off the
appeal as not maintainable.
18. It is well settled principle not that when a matter is decided on
maintainability, to avoid further remand and delay the court
should deal with all the issues raised, so that the matter in whole
can be decided by the superior Court. To attain finality of the
issues raised and avoid further delay in the proceedings, I
proceed to consider the appeal also on merits, so much so as to
adjudicate all issues raised before me. It is necessary to point out
that in view of the judgment of the Hon’ble High Court in the
case of Vivek Gawade V/s. Municipal Corporation of Greater
Mumbai in Writ Petition NO.5983 of 2022 decided on 19th July
2022, the contention of non framing of rules U/s.105H have been
given up.
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19. Lengthy arguments were advanced with regard to Section 53A
of T.P. Act, new facts post judgment in case of More Jeevan
Yashwant, novation, maintainability of such defence, institutional
bias, contract, Enforceability of Resolution of Council, and other
aspects. At the outset, I shall not deal with these aspects in detail
because I believe they are to be dealt with by the Competent
Authority or the Court (if they so arise) as the case may be
subject to finding hereinafter. Needless to say, I consider this as
an attempt to get the mind of this Court with regard to these
issues as there are many such other appeals, pending where these
issues have been taken and answered.
20. The contentions do not require consideration for a simple reason
that the Hon’ble High Court of Bombay, in similar kind of
litigation , raising same kind of issues, in the judgment of Vivek
Gawade has directed the concerned Competent Authority itself
to decide these contentions. The Hon’ble High Court of Bombay
has directed that issues of….
(a) Premises being staff quarters,
(b) Premises being in unauthorized occupation on determination
of services, limitation, jurisdiction in view of provisions of Section
53A of Transfer of Property Act,
(c) defence of Section 53A of Transfer of Property Act,
(d) aspect of institutional bias and stand taken by the Municipal
Commissioner and its delegate,
(e) issue of State Government being proper party,
(f) summary proceedings maintainability,
are all been left to be considered only by the concerned
Competent Authority. Thus, the Hon’ble High Court of Bombay
has considered and upheld that the Competent Authority is fit to
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decide of the contentions raised. The same facts and
circumstances being in this case, the said judgment is binding this
Court. In view of these contentions of stay of proceedings or
competent authority not empowered to continue with the
proceedings for the contentions raised in the application do not
survive. The Hon’ble High Court of Bombay itself has considered
the competent authority fit to consider all these aspects. Thus,
judgment of Mahadev Nathuji Patil V/s.Surjabai Khushalchand
Lakkad and others 1994 Mh.L.J. 1145, Shrimant Shamrao
Suryavanshi and another V/s. Pralhad Bhairoba Suryavanshi
(Dead) by Lrs. And others (2002)3 Supreme Court Cases 676 and
Kashiram s/o Wadgu Mundale and another V/s. Mansaram s/o
Tulshiram Mundale (since deceased) through his L.Rs.
Smt.Manjulabai wd/o Mansaram Mundale and others 2016(3)
Mh.L.J. 713 have no bearing in presence facts and circumstances
as said issue is not required to be decided by this Court. Needless
to say that it is finally adjudicated that the Competent Authority
under provisions of Chapter-V-A is competent to decide all these
aspects. More so the findings of the said Competent Authority
would be appealable, before a senior Judge of the District Judge
cadre and has held in the case of Maganlal Chhaganlal (P) Ltd.
the institutional bias, gets ruled out, as a result thereof and so
also the issues can be examined by an experienced Judge.
21. Last but not least, considering the fact that a Municipal Senior
employee is a Competent Authority, he is certainly well versed
with the rules and regulations of the governing of the Municipal
corporation, resolutions of the Municipal Council and giving
effect thereto, giving and management of the properties, the
housing policy relating to the employees and such aspects and
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thus his competency in that regard much higher and specialized.
Considering these aspects, it would be more appropriate that the
contentions raised are determined by the Competent Authority.
Thus, considering even on the merits, the application is devoid of
merits and is only an intention to protract the proceedings and
get mind set of the Competent Authority on contentious issues
therein. In such circumstances, I hold that the learned Competent
Authority has rightly considered the aspects and hold that it is
competent and the proceedings need not be stayed. Hence, I
answer point no.2 in negative. Hence, I pass the following order.
O R D E R
1. Appeal No.71 of 2019 is dismissed as not maintainable.
2. Competent Authority to proceed with the proceedings after four
weeks after receipt of this order.
3. Inform the concerned Competent Authority.
18/07/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on
Transcribed on
Signed by HHJ on
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18/07/2023
24/07/2023
26/07/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/07/2023 1.00p.m. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 18.07.2023
Judgment/order signed by P.O on 26.07.2023
Judgment/order uploaded on 27.07.2023
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