Final Order 2

Order Details: Copy of Judgment
Pdf Text: M/s. Patdiam Jewels v The Development Commissioner & Anr.
Received on : 21/02/2019
Registered on : 01/03/2019
Decided on : 22/12/2020
Duration : Y M D
01 09 21
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MISC. APPEAL NO. 97 of 2019
M/s. Patdiam Jewels,
A partnership firm registered under
Indian Partnership Act, 1923, having
its office address – Gala No.702,
Tower - I, SEEPZ ++,
SEEPZ – Special Economic Zone,
Andheri (E), Mumbai-96. ..Appellant
Versus
1) The Development Commissioner,
SEEPZ-SEZ, Andheri (E),
Mumbai-96.
2) Learned Estate Manager,
SEEPZ-SEZ, Andheri (E),
Mumbai-96 ..Respondents
CORAM: H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL
DATED: 22nd December,2020
(C.R.No.19)
Shri Deepan Dixit,
for appellant.
Shri M.S. Bharadwaj,
with Shri S.R. Rajguru for respondents.
O R A L J U D G M E N T
This appeal under Section 9 of the Public Premises (Eviction of
Unauthorised Occupants) Act,1971 (“the Act” for short) is preferred
against the order dated 1st February,2019 passed by the respondent
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no.2-Estate Manager, SEEPZ SEZ, Andheri (E), Mumbai-96 thereby
directing the appellant to pay an amount of Rs.10,66,990.66 at the
earliest from the date of receipt of the order in respect of subject
premises viz. Unit No.702, Tower-I, SEEPZ++,SEEPZ SEZ, Andheri (E),
Mumbai-96.
2. Briefly stated the facts leading to the present appeal are as under:
It is not in dispute that the subject premises were initially allotted
to one M/s.Starlite Jewels Pvt. Ltd. and the appellant was allowed to
take over by the Maharashtra Industrial Development Corporation
(“MIDC” for short) after accepting premium of Rs.3,150/- per square
foot totaling Rs.1,96,92,414 /-. Accordingly, allotment letter was issued
to the appellant and a Lease Deed was to be executed in accordance
with the allotment letter and nominel lease rent of Rs.100/- was
payable on annual basis thereafter. Possession receipt was also issued to
the appellant. However, thereafter, the MIDC demised the premises
unto the President of India through the respondent no.1 Development
Commissioner of SEEPZ SEZ for a period of 95 years and an Indenture
of Sub Lease was purportedly entered between the appellant and
respondent no.1 for a period of 95 years. This document did not
stipulate any additional yearly ground rent whereas the MIDC
continued to insist that the annual ground rent agreed between the
MIDC and the appellant ought to be paid by the appellant to the MIDC
with which there is no dispute.
3. However, the respondent no.1 leveled ground rent in
contravention with the terms and conditions of the allotment orders and
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infact the MIDC wrote to respondent no.1 not to levy any additional
lease rent.
4. On 29th October,2018, respondent no.2 issued a show cause
notice to the appellant under Section 7 of the Act wherein it has
contended that the appellant had failed to clear the outstanding
Government dues to the tune of Rs.10,66,990.66 and called upon the
appellant to specify as to why an order in respect of the same ought not
be made.
5. The notice was replied to. Several grounds were raised challenging
the demand. Moreso, considering the agreement of the appellant with
the MIDC it was specifically contended that the amount liable to be paid
after the payment of substantial lease premium to the MIDC at the
inception, as per the agreement was Rs.100/- per annum and the rate at
which the same was applied was highly exorbitant which the
respondent no.1 was not entitled to levy.
6. The fundamental ground of objection raised by the learned
counsel for the appellant is that although substantial grounds have been
raised against the respondent; without considering the contents in the
reply and the grounds raised therein, the respondent no.2 has passed a
cryptic order without assigning any reason or discussing the contentions
raised by the appellant.
7. Learned counsel for the respondent on the other hand supported
the impugned order and sought dismissal of the appeal.
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8. Both the sides have filed their written submissions. However,
considering the narrow compass, at this stage, I deem it fit to frame the
following points and my findings thereon for the reasons therefor are as
under:
POINTS FINDINGS
1. Whether the impugned order
passed by the respondent no.2 ..In the negative
is a reasoned order?
2. Whether the impugned order
is sustainable in law? ..In the negative
3. What order? ..As per final order
R E A S O N S
Point nos.1 and 2:
9. At the outset, it would be appropriate to mention that the
appellant was allotted the subject premises not by the respondent no.1
but by the MIDC which is neither a party before the Estate Officer nor
before this court. The allotment was made after accepting a substantial
amount of premium and an yearly lease rent of Rs.100/- in lump sum
was agreed to be paid by the appellant to the MIDC. Infact, a lease
agreement was to be executed between the appellant and the MIDC as
per the terms of the allotment letter.
10. However, in the meanwhile MIDC entered into lease and demised
the entire property in the President of India through respondent no.1
and it is in such circumstances, that the respondent no.1 had come into
picture who started insisting the appellant to pay annual lease rent at
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different rate than what was agreed between the appellant and the
MIDC and all these aspects were raised by the appellants in their reply
to the Estate Officer.
11. However, perusal of the impugned order would reveal that none
of the grounds raised in the reply have been considered by the Estate
Manager nor he has given any reason in support of his conclusion. The
question as to whether the respondent no.1 was entitled to levy the
amount as claimed by them and whether the appellant was liable to pay
the said amount was also not adjudicated upon.
12. It is trite law that any quasi judicial authority deciding upon an
issue having civil consequence ought to adhere to the fundamental
principles of the natural justice and passing of a reasoned order is a
sine
qua non to demonstrate such adherence. Parties to the dispute must
understand the reason for the consequences that are going to follow
and even the appellate forum is handicapped in the absence of such
reasons. The impugned order merely records that opportunity of
hearing was given to the appellant. It also records submission of reply
and written submissions but nothing therefrom has been considered and
discussed in the impugned order. Such an order cannot be sustained in
law.
13. Learned counsel for the respondent no.2 relied upon the
judgment of the Hon’ble Bombay High Court in the case of
Piadiam
Jewels Pvt. Ltd. V/s. A.S. Aguiar & Ors., in Writ Petition No.832/1997
decided on 4th November,2009 wherein the Hon’ble Bombay High Court
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did not interfere in the order passed by the City Civil Court although
one important aspect germane to the proceedings was not considered
by the City Civil Court. It has to be noted that the situation in the
present case is altogether different inasmuch as none of the contentions
raised by the appellant was deliberated upon the Estate Manager i.e.
respondent no.2. Furthermore, the Hon’ble High Court thought it fit
not to interfere in it’s extra ordinary jurisdiction under Article 226 of
the Constitution of India whereas the present proceedings is
substantially different. In such circumstances, I have no other
alternative that to set aside the impugned order and remand the matter
to the Estate Manager for passing speaking order after considering the
contention raised by the appellant and giving appropriate reasons. In
such circumstances, I answer the points accordingly and pass the
following order:
O R D E R
1) Misc.Appeal No.97/19 is partly allowed.
2) Impugned order dated 1st February,2019 passed by the Estate
Manager is hereby set aside and the matter is remanded back to
the Estate Manager.
3) Respondent no.2-Estate Manager is directed to consider the
material before him and pass a reasoned order.
4) It is clarified that all the contentions of the parties are kept open.
22/12/2020 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 22/12/2020
Transcribed on : 22/12/2020
Signed by HHJ on : 22/12/2020
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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: 22/12/2020 (At 2.45 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 22nd December,2020
Order signed by P.O. on 22nd December,2020
Order uploaded on 22nd December,2020
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