Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.59.18
Received on : 09/02/2018
Registered on : 16/02/2018
Decided on : 15/10/2019
Duration : Y M D
01 07 29
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.59 of 2018
Kamlakar Shrikrishna Loke
@ Lokegaonkar
age 67 years, Occ.:Retired,
at present residing at room no.1,
chawl no.E/4, ground floor,
S.G. Barve Nagar CoOperative
Housing Society Ltd.,
Ghatkopar (W), Mumbai84 ..Appellant
V/s.
1) Municipal Corporation of Gr.Mumbai
a statutory Corporation constituted
under the Mumbai Municipal
Corporation Act,1888, having its
office at Mahapalika Marg,
Mumbai1
2) Enquiry Officer appointed
by the Mumbai Municipal
Corporation, having their
office situated at NWard,
Municipal Office, Jawahar
Road, Ghatkopar (W),
Mumbai77
3) The Chairman/Secretary
S.G. Barve Nagar CoOperative
Housing Society Ltd., registered
under No.MUM/WN/HSG/TC/
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2 Misc.app.59.18
8804/200203/year 2003,
having address at F6/4,
Barve Nagar, Ghatkopar(W),
Mumbai84 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 15th October,2019
(C.R.No.19)
Advocate Mr.H.T. Pawar for appellant.
Advocate Mr.Mukund Jalgaonkar a/w. Advocate Mr.A.V. Diwate for
respondents/MCGM.
O R A L J U D G M E N T
Being aggrieved by the order of eviction passed by the Enquiry
Officer under Mumbai Municipal Corporation Act, 1888 ('the Act' for short)
on 19th December,2017 in respect of premises comprising room no.1, E/4,
Barve Nagar, ground floor, Ghatkopar (W), Mumbai84 ('the schedule
premises' for short), the appellant has preferred the present appeal.
2 The appellant is a member of respondent no.3 Society bearing
membership no.843. The schedule premises is standing in the name of
Kashiram Vithal Lokegaonkar who was uncle of appellant and was working
as a teacher in the Municipal school. The appellant was residing with his
uncle since 1963 i.e. from the inception of tenancy. His uncle expired on
31st March,1996. Thus, the schedule premises is occupied by him since
1963 in a capacity of a real nephew and family member of the original
allottee.
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3 Misc.app.59.18
3 According to appellant, respondent no.1 who is a statutory
Corporation, issued a letter on 9th May,1990 in the name of his uncle
Kashiram Vithal Lokegaonkar calling upon him to furnish the required
information for conversion of schedule premises on permanent tenancy
basis. The appellant submitted all the required information on 18th
December,1996 to respondent no.1 and, requested for conversion of
schedule premises on permanent tenancy basis in his favour.
4 The appellant then contends that he appeared before the
Enquiry Officer on 25th October,2017 and after hearing the parties, the
respondent no.2 passed the order dated 19th December,2017 and his
application came to be rejected. The appellant lastly contends that no
eviction proceedings could have been initiated against him under Section
105B of the Act inasmuch as the appellant is a member of respondent
Society and his status is not that of a trespasser or unauthorised occupier.
Hence, this appeal.
5 Mr.H.T. Pawar, learned counsel for appellant, has submitted
before me twofold submissions. Firstly, since the appellant was residing
with his real uncle in the schedule premises since the inception of the
tenancy, he is entitled to claim tenancy rights and, secondly, the appellant
being a member of respondent no.3 Society, his status cannot be termed as
that of unauthorised occupant and, therefore, initiation of enquiry under
Section 105B of the Act was uncalled for.
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4 Misc.app.59.18
6 Learned counsel, then took me through various documents to
substantiate his submissions and urged that since the impugned order is
passed without application of mind, the same is liable to be set aside.
7 Mr.Mukund Jalgaonkar, learned counsel for respondent nos.1
and 2, on the other hand, strenuously submitted that the appellant has
failed to establish his authorized occupation over the schedule premises.
Moreover, since the schedule premises was given to the original allottee on
Leave and License basis which ultimately came to be expired on the
retirement of the original allottee, the appellant is not within his right to
claim any kind of right much less the statutory right over the schedule
premises. The learned counsel also invited my attention to the
documentary evidence to show that how the appellant has tried to
manipulate his alleged rights over the schedule premises. The learned
counsel also placed reliance in More Jeevan Yashwant V/s. Brihan
Mumbai Mahanagar Palika and anr. in Writ Petiton No.957 of 2013
decided on 6th January,2017.
8 Following points, therefore, arise for my consideration and my
findings thereon with reasons are as under:
POINTS FINDINGS
1) Whether the impugned order
dated 19th December,2017
passed by the Enquiry Officer
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5 Misc.app.59.18
is legal, just and proper? ..In the affirmative
2) What order? ..As per final order
R E A S O N S
Point no.1:
9 Adverting to the first submission advanced by learned counsel
for appellant, the appellant has putforth his tall claim on the footing that
the schedule premises was allotted to his real uncle namely Kashiram
Vithal Lokegaonkar and since the inception of tenancy he was residing with
him. There is no dispute on the count that the schedule premises was
alloted to Kashiram Vithal Lokegaonkar. From the record submitted by
respondent no.1, it is also seen that said Kashiram Vithal Lokegaonkar
stood retired from the Municipal Service on attaining superannuation on
31st July,1989. There is also no dispute to the fact that said Kashiram
Vithal Lokegaonkar expired on 31st March,1996.
10 Leave and License agreement is produced at Exh.A in the
original record submitted by respondent no.1. It is apparent from Clause 6
of the said Leave and License agreement that the schedule premises was
given to original allottee by virtue of his employment with Municipal
Corporation till his retirement. However, it appears from the record that
despite attaining the superannuation he did not vacate or handover the
schedule premises to respondent no.1. In this regard it is necessary to take
note of the pleadings of the appellant.
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6 Misc.app.59.18
11 According to appellant, respondent no.1 on 9th may,1990
issued a letter in the name of said Kashiram Vithal Lokegaonkar calling
upon him to furnish information for conversion of the schedule premises
on permanent tenancy basis. Again, the said request was made on 25th
November,1992. However, it appears that no such information was
submitted by late Kashiram Vithal Lokegaonkar. It is only on 18th
December,1996 i.e. much after the death of Kashiram Vithal Lokegaonkar,
the appellant submitted the required information and also made a request
for granting him tenancy on permanent basis. It is further seen from the
record that his request came to be turned down and rather he was served
with a notice of eviction on 21st July,1997. The said proceeding came to be
challenged before this court and the matter was remanded for giving
appellant an opportunity to crossexamine the witness on behalf of the
Corporation. Nothing happened it seems from 2002 to 2010. Eventually,
proceedings came to be initiated against the appellant which is subject
matter of the present proceedings.
12 First of all, it is pertinent to note that the appellant claims
himself to be the real nephew of late Kashiram Vithal Lokegaonkar.
Documents filed by the respondent no.1 on record, however, depict
altogether different story. School Leaving Certificate shows the name of
appellant as Kamlakar Shrikrishna Loke and so also birth certificate of his
daughters and sons.
13 Similarly, identity card issued by Election Commission of India
show the appellant's name as Loke Kamlakar Shrikrishna and his wife's
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7 Misc.app.59.18
name as Loke Mohini Kamlakar. Even the Adhar Card and PAN Card
issued by Income Tax Department show his name as Loke Kamlakar
Shrikrishna. How the appellant's surname became Lokegaonkar is not
made clear by him. Assuming for the sake of arguments that he is legal
representative of late Kashiram Vithal Lokegaonkar but the fact remains
that any legal right which the original allottee was enjoying in respect of
schedule premises came to an end on his attaining superannuation. Even
during his lifetime and after the retirement, nothing was done so as to
cloth his character as a permanent tenant of schedule premises. It was the
prerogative of the respondent no.1 to allow the appellant to enter into
shoes of original allottee for justifiable reasons but nothing of that sort has
been done in the present case. Merely because the appellant was residing
with Kashiram Vithal Lokegaonkar that fact in itself will not confer upon
him any right much less the legal rights to put a valid claim over the
schedule premises. Therefore, in the circumstances, his continued long
residence in the schedule premises will not further his case.
14 This brings me to second submission. A very ingenious
submission has been made to the effect that since the appellant is member
of registered Society (respondent no.3), no eviction proceedings could
have been initiated against him under Section 105B of the Act. Here it
must be noted again that the rights of Kashiram Vithal Lokegaonkar came
to be extinguished on 31st July,1989 and therefore, even though he
continued to reside in the schedule premises till his death, his occupation
by no stretch of imagination could have been said to have legalized in
absence of any cogent evidence in respect of schedule premises. Even if it
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is so that the respondent no.3 Society came into existence in 2003, how the
said Society enrolled appellant as a member of the Society is something
which needs to be answered by the Society itself. I say so because the
appellant was not having any legal status to become the member of the
society inasmuch as he was not in lawful occupation of the schedule
premises after 31st July,1989. The appellant cannot reap the benefits of
wrong committed by the society. Be that as it may, the fact remains that
the appellant had no authority to continue in the schedule premises after
31st July,1989 and, therefore, he cannot take the shield of his membership
of the said Society to his advantage.
15 In More Jeevan Yashwant V/s. Brihan Mumbai
Mahanagar Palika and anr. (Supra) the Hon'ble High Court held as
under in para no.39:
“...........The Municipal Corporations themselves
occupy a constitutional status. The Constitution
envisages establishment and incorporation of a Municipal
Corporation so as to ensure better and quality municipal
governance. Given this status, the municipal employees
ought to be aware that if they occupy municipal
properties during the course of their services, then, they
are also obliged to handover these premises on their
retirement or superannuation so that the Municipal
Corporation can utilise them for housing those who have
entered the services or existing employees. Given the
shortage of accommodation, there is a huge waiting list.
Hence, we find that the contrary impression that parties
like the petitioners and municipal authorities entertain
needs to be dispelled forthwith. None can, therefore,
take a decision to handover municipal properties to
anybody save and except in accordance with law. No
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9 Misc.app.59.18
provision has been brought to our notice in the MMC Act,
which obliges the Municipal Corporation to make a
provision for housing its retired employees. Therefore,
there is no statutory right, which can be claimed in such
matters.”
16 In Ajit Baburao Sawant and others V/s. General Manager,
BEST undertaking of the Municipal Corporation of Gr.Bombay and
others, 1985 Mh.L.J., the Hon'ble High Court at paragraphs 12 and 13
held as under:
“12. The Bombay Municipal Corporation Act
does not define the word “occupation”, nor does the
Public Premises (Eviction of Unauthorised Occupants)
Act,1971, which contains provisions analogous to the
provisions contained in Chapter 5A of the Bombay
Municipal Corporation Act. Shri Vashi, therefore,
referred to the definitions given in Black's Dictionary
(5th Edition) of the terms, 'occupier', 'occupy',
'occupant', and 'occupation', 'occupier' is defined as an
'occupant', one who is in enjoyment of a thing; 'to
occupy' is defined to mean “to take or enter upon
possession, actual use, possession and cultivation.”
'Occupant' is defined as 'person in possession; person
having possessory rights who can control what go on
premises; and who has actual use, possession or
control of a thing'. 'Occupation' is defined to mean
'possession, control, tenure, use'. The act or process
by which real property is possessed and enjoyed.
Where a person exercises physical control over land.
13. An analysis of these definitions will make
it clear that occupation of premises contemplates
possession, either actual or constructive or control
over, or enjoyment of the premises in pursuance to a
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10 Misc.app.59.18
right to possess or to have control or of enjoyment,
real or purported. Mere residence alongwith the
person who has or had a right to possession the
premises, as a member of his family or with his
permission does not amount to possession and much
less occupation. A number of allotee's family who
resides in the premises along with the allotee cannot
be said to be in possession or occupation of the
premises in his or her own right. The possession and
occupation is that of the allotee and not of the
members of his family. It is not necessary that the
right to possess or control or enjoy premises should
be considered by, or exercisable against the true
owner. The right might be created by or exercisable
against a person in unauthorised occupation of the
premises or whose occupation has become
unauthorised. A person who claims to be in
occupation must be in occupation in exercise of a
right and on his own behalf. A member of the family
residing as such with a person who is in unauthorised
occupation or whose occupation has become
unauthorised has no right to be in occupation either
against the said person or against the true owner.
Such a person cannot be said to be in occupation of
the premises.”
17 Having regard to the interpretation of the word 'occupant'
putforth by the Hon'ble High Court, it must be held that meaning of the
'occupant' is that the person should be in occupation in his own right and
not on behalf of someone else. In the instant case, even if it is that the
appellant was residing with Kashiram Vithal Lokegaonkar, he cannot be
said to be in possession or occupation of the schedule premises in his own
right. Moreover, as per terms and conditions, licenseeship or for that
matter tenancy of Kashiram Vithal Lokegaonkar was to be terminated
after his retirement from the Municipal service or being discharged or
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11 Misc.app.59.18
dismissed from Municipal service. Not only Kashiram Vithal Lokegaonkar
had retired from the Municipal service but he died also on 31st March,1996
without handing over possession of the schedule premises to the
respondent. This being so, the respondent no.2 was justified in passing of
impugned order.
18 In view of above, I hold that the enquiry carried by Enquiry
Officer and eviction order passed thereon is clearly in consonance with the
provisions of the Act. The impugned order is legal, correct and proper in
the facts and circumstances of the case. Hence, the point is answered in
the affirmative.
19 For the aforesaid reasons, I pass the following order:
O R D E R
Misc.Appeal No.59/18 stands dismissed.
R & P be sent back.
15/10/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 15/10/2019
Transcribed on : 16/10/2019
Signed by HHJ on : 16/10/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 17/10/2019 (5.10 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 15th October,2019
Order signed by P.O. on 17th October,2019
Order uploaded on 17th October,2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 23/07/2019 (5.00 p.m.)
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13 Misc.app.59.18
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 23rd July,2019
Order signed by P.O. on 23rd July,2019
Order uploaded on 23rd July,2019
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