Final Order 1

Order Details: Copy of Judgment
Pdf Text: : 1 : JUDGMENT IN MISC.APPEAL15/2021
MHCC010020712020 Received on : 17.02.2020
Registered on : 04.03.2021
Decided on : 10.01.2023
Duration : Y02:M10:D22:
Exhibit : 5
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.15 OF 2021
1. The Governor of Maharashtra,
A/c of the General Manager
Greater Bombay Milk Scheme,
C/o Stores Officers, Greater Bombay,
Milk Scheme, Worli Dairy,
Mumbai – 400 018
And
also having plot address
at Plot No.Comptt.D, Ryan
Grain Market, Elphinstone Estate,
Mumbai 400 009.
2. The State of Maharashtra,
Through the Chief Secretary,
Dairy Development Minister
(Dugdha Vikas Mantri)
having its office at Mantralaya,
Mumbai – 400 032. ... Appellants
Versus
1. The Board of Trustee of the Port
of Mumbai,
A Statutory Corporation, having
its registered office at Vijay Deep,
Shoorji Vallabhdas Marg, Marg,
Fort, Mumbai – 400 001.
2. The Estate Officer,
Mumbai Port Trust, having office
at 5th Floor, Vijay Deep Building,
Mumbai Port Trust, Mumbai – 400 001.. ... Respondents
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CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 10th JANUARY, 2023
Ld.Adv.M.B.Jadha for Appellants.
Ld.Adv.Usha Singh i/b M/s.Vyas & Bhalwal for Respondents.
ORAL JUDGMENT
1. By the present appeal the appellants/original respondents are
challenging the order passed by the Ld. Estate officer dated
30/07/2019 directing the respondents to pay damages to the sum
of Rs.1,44,95,181.52/.
2. The respondents herein preferred application Under Sections 4
and 7 Of the Public Premises Act before the Ld. Estate Officer
contending that godowns premises and Latrine premises as
described herein were given to the appellants and as they have
breached the conditions of occupancy and also for damages and
arrears of rent etc. The petitioner was served. Written statement
was filed contending that the socalled breaches are outside the
premises by 3rd parties and hence appellants cannot be held
responsible for the same. It is further pointed out that the
premises are held on monthly tenancy basis since 1958. It is
further pointed out that since 2004, the present appellants had
asked the present respondents to take possession of the property
and they have failed to do so. Thus, they are not liable for any
action as per the notice issued. By letter dated 12th of January
2005 demand was made for Rs.98,35,224.75 and Rs.53,671.04
for arrears of rent till 31/03/2004 and the same has been paid
after getting due sanction. By letter dated 14th of January 2005
the tenancy was terminated. Possession was offered, but never
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taken over by the present respondents, hence the petition should
be dismissed. Thereafter, the issues were framed and the original
petitioner examined one witness. There was none for the
respondents. After hearing the original petitioner, the Ld. Estate
Officer was pleased to pass the impugned order. Hence, the
present appeal.
3. Perused the written arguments of the appellants. It is contended
that details of the alleged use are not stated. There are different
amounts in different notices and statements. The claim is barred
by limitation. The Ld. Estate Officer has failed to appreciate the
fact that the tenancy commenced from 1st of July 1958. The letter
was issued by the present appellants for giving a possession on
10th of November 2004. On 10/02/2005 letter by the appellants
indicates termination of tenancy and handing over of possession.
The present respondents did not take possession. Hence, there
can be no fault of the present appellants. The earlier arrears of
rent as demanded by letter dated 12th of January 2005 has been
paid by pay order. The premises have been handed over pending
the present proceedings. The payment of amount has not been
duly considered and attested in the books of account. The
affidavit and opportunity to cross examine and contest the
proceedings were not given to the present appellants. Moreover,
all the allegations are beyond the premises and within the
jurisdiction of the municipal Corporation and hence appellants
cannot be held responsible for the same. Because of transfer of
the officers, the matter could not be attended. Cost of Rs. 25,000
have been paid. The order is without any basis and not based on
evidence and hence it should be set aside.
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4. Considered the written arguments of the respondents. It is
vehemently submitted that the allotment of premises is not in
dispute and is also the aspect of nonpayment and handing over
of possession only in the Year 2018. There are various breaches
so much so that unauthorised construction has been carried out.
The same has been done after issuing the notice under the
present proceedings and hence they are liable to pay the rent and
arrears and damages till handing over of possession. The Ld.
Additional Officer has passed a well reasoned order. There was
sufficient opportunity given to the appellants which they have not
utilised. There is valid termination of tenancy. Hence, appeal be
dismissed.
5. Considered the appeal memo and written arguments and the
record and proceedings. Perused the impugned order and in view
of above following points arise for my consideration and answer
the same as under for the reasons stated hereinafter:
Sr.
Nos POINTS FINDINGS
1 Whether the appellants can be said to
be unauthorised occupants and liable
to pay compensation?
:: In the
Negative
2 Whether the appellants can be said to
be in arrears of rent?
:: In the
Negative
3 Whether the appellants can be held
liable for damages or arrears of rent
for the period 2004 till 2018.?
:: In the
Negative
4 Whether the impugned order requires
interference?
:: In the
Affirmative
5 What order? :: As per final order
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REASONS
As to Point Nos.1 to 3:
6. At the outset, I was inclined to consider remand of the matter in
view of the facts that the appellant was unrepresented before the
Ld. Estate Officer and considering that a serious fiscal liability is
placed upon the government, it would have been appropriate to
hear the dispute on merits by the Ld. Estate Officer. But on
consideration of the record and proceedings, the correspondence
is not seen to be disputed or denied and considering the same I
feel that the entire issue can be decided on merits.
7. There is some controversy with regard to the date of tenancy. It is
alleged that the latrine was taken in the year 1958 and the goods
on premises in the year 1961, this does not appear to be in proper
manner of sequences and considering the same, I hold that the
occupancy of the Latrine Block as on 1958 to be the date of
commencement of the said tenancy. Suffice to say that, that does
not change the nature of the present proceedings. It is clear that
the present respondents will stand excluded from the rigors of the
Rent Act and considering the same basic principles of tenancy law
or general principles of tenancy law would be applicable. There is
no issue of handing over of possession and admittedly it is
handed over in the year 2018. Specific defence has been taken in
the written statement with documents annexed to show that
possession was proposed to be handed over by the appellants in
the year 2004. There was also correspondence and in the year
2005, a specific contention was put that there is termination of
tenancy and they can take possession. It is in fact part of record
that in the year 2005, the respondents refused to take possession
alleging arrears of rent. The aspect of arrears of rent and of
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possession are two different aspects and considering the same it
is apparent that there was termination of tenancy and offer to
hand over possession by the appellants herein way back in the
year 2004. It was for the respondents original petitioner to
explain as to why they did not take possession. For their fault and
inaction, the blame cannot be cast on the appellants. It is not that
the appellants only wrote a letter in the year 2004, but it is seen
that the same was followed up till repeatedly thereafter and
correspondence is seen till the year 2014. In such circumstances,
it is apparent that the appellants not only specifically ask the
respondents to take possession, but have also specifically
terminated the tenancy. They did not retain the possession for
them to be held liable.
8. Section 2 (g) of the Public Premises Act 1971 defines
“unauthorised occupation” means occupation by any person of the
public premises without authority for such occupation, and
includes the continuance in occupation by any person of the
public premises after the authority under which he was allowed
to occupy the premises, has expired or has been determined for
any reason whatsoever”. Thus, it should be at the instance of the
original petitioner. In this case, it is at the instance of the present
appellants. In such circumstances, it certainly cannot be said that
a person is in unauthorised occupation.
9. In the case of Calcutta credit Corporation and another versus
Happy Homes Private Limited, 1968 AIR 471, it is held that
"we are unable to agree with counsel for the respondent that in
order to determine a tenancy under the transfer of property act at
the instance of tenant, there must be actual delivery of possession
before the tenancy is effectively determined. The contention is
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contrary to the plain terms of section 111 (h) of the Transfer of
Property Act”.
10. Thus, tenancy came to be an end in the year 2004 and the
respondents having not taken possession, even though it was
offered to, cannot be blamed upon the appellants for the same. In
view of these circumstances in particular facts of the case, it is
apparent that from the year 10/11/2004, there was valid
surrender of tenancy. Hence, no arrears can be claimed for that
period and shall also indicate that the appellants cannot be
considered to be in unauthorised occupation since then. Hence,
answer point No. 1 to 3 negative.
As to point No.4:
11. Although the aspect of surrender of tenancy and offered to
hand over possession was made in the year 2004, the Ld. Estate
Officer failed to consider the same and only considered the aspect
of handing over of possession in the year 2018. In such
circumstances there is gross illegality seen in the said order of
directing the appellants to pay arrears of rent as well as damages
for unauthorised occupancy. In such circumstances, the same is
required to be setaside partly and the respondents are entitled to
claim rent till November 2004 only and I pass the following
order.
O R D E R
1. Misc.Appeal No.15 of 2021 is partly allowed.
2. The impugned order passed by the Ld. Estate Officer dated
30/07/2019 in Case No.EO /E (237) of 2018 is hereby set aside.
3. The appellants to pay the respondents arrears of rent only till
November 2004 and the same shall be in consonance and as per
directions issued in the judgment of the Hon'ble Supreme Court
of India in the case of Jamshed Wadia.
4. Amounts already deposited, may be adjusted and fresh demand
be raised.
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5. If the amount is not paid within two months of the demand, the
amount shall carry interest rate 9% per annum from the date of
such demand.
6. It is also clarified that the arrears shall carry interest as permitted
by the Hon'ble Supreme Court of India in the case of the Jamshed
Wadia.
7. Record and Proceedings be returned.
10/01/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 10/01/2023
Transcribed on : 18/01/2023
Signed by HHJ on : 21/01/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/01/2023 4.00p.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. 10.01.2023
Judgment/order signed by P.O on 21.01.2023
Judgment/order uploaded on 21.01.2023
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