Final Order 1

Order Details: Copy of Judgment
Pdf Text: M/s.Qureshi Fat Processing Industries Vs. MMC Gr. Mumbai
Received on : 26/02/2019
Registered on : 13/03/2019
Decided on : 17/03/2021
Duration : Y01: M 11: D11:
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MISC.APPEAL NO.101 OF 2019
(CNR NO.:MHCC010022312019)
M/s.Qureshi Fat Processing Industries
Through ProprietorMoh.Abdul Razak
having its Registered office at Plot
No.46/K/5, Shivaji Nagar, Govandi,
Mumbai400 043. ...Appellant
Versus
Municipal Corporation of Gr.Mumbai,
Through GMDA, a body
incorporated under the provisions
of B.M.C. Act having its office
at Mahapalika Marg, Mumbai1. ...Respondents
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL (C.R.No.19)
Dated : 17th MARCH,2021
Adv. Vaibhav V. Ugle, for appellant.
Adv. A.V.Diwate, for Respondent/BMC.
ORAL JUDGMENT
Order of eviction passed under Section 105B of the
Mumbai Municipal Corporation Act,1888 by the Enquiry Officer
directing eviction of the appellant from plot no.69, Ancillary Industry,
Deonar Abattoir, Govandi, Mumbai43 is assailed in the present appeal.
2. Facts material for disposal of this appeal are as under:
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It is not in dispute that the subject premises was leased out
to the appellant for a period of 60 years under a Lease Deed with a
specific condition stipulated in the said Lease that the premises would
be used for ancillary unit of Deonar Abattoir and if it is used for other
purpose, it is necessary to take NOC from the Corporation before the
same is so used. Earlier, a notice was issued to the appellant which was
challenged in the suit and the suit of the appellant was decreed.
However, the defendantCorporation would be at liberty to recover the
possession in accordance with law.
3. Accordingly, during inspection carried out by the
Corporation, it was revealed to the Officer of the Corporation that the
plot of land was used for household furniture making. Show cause
notice was issued to the appellant which the appellant claims to have
not been received. Admittedly, the notice was pasted and delivered at
the plot address whereas it is the contention of the appellant that all the
other correspondence between the parties was undertaken from the
registered office of the appellant and not the subject premises.
Evidence was led from both the sides before the Enquiry Officer, after
the proceedings were initiated and the order impugned came to be
passed.
4. Apart from the other grounds on the merits, it is contended
by the learned counsel for the appellant that the order impugned is not
reasoned order since none of the contention raised by the appellant
have been deliberated upon in the order although many substantial
grounds germane to the inquiry were raised.
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5. Learned counsel for the respondent took me through the
impugned order, however, no reasoning could be pointed out in the
impugned order. In such circumstances, the following points arise for
my consideration and my findings thereon for the reasons therefor are
as under:
POINTS FINDINGS
1. Whether the impugned order
is sustainable in law? ... In the negative
2. Whether the impugned order
is a reasoned order? … In the negative
3. What order? … As per final order
R E A S O N S
Point nos.1 and 2:
6. As narrated herein above, it is contended by the appellant
that the initiation of the present proceedings is a colourable exercise of
power after set back before the Civil Court. Furthermore, for four years
no action was taken. Thirdly, the complaint on the basis of which
purportedly the Corporation officials inspected the property was of the
date subsequent to the inspection. It is also contended that the material
adduced by the Corporation before the Enquiry Officer is wholly
insufficient inasmuch as admittedly the Corporation during inspection
officials did not find the owner or the employee of the appellant. On
the spot presence of Mr.Saeed Qureshi is shown whose existence itself is
doubtful and the Enquiry Officer holds that he cannot be unknown to
the appellant. Apart from photographs, the other documents were also
not free from doubt.
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7. There is no material except for the version given by the
officer of the Corporation, perusal of the same would reveal that it is
quite cryptic and short of necessary particulars. It neither mentions who
carried out the inspection nor gives the details as to what was found in
inspection and just vaguely states that the plot was seen utilised for
making wooden furniture and so there was violation of clause 3 of
Lease Deed. Even the inspection report is cryptic and reads thus:
“On inspection at site it is observed that entire plot is
covered with G.I. sheet shed & used for making wooden
household furniture. On inquiry it comes to know that Ajay
Kaithwas has taken plot on rental basis from Sayyed Qureshi
(9920212270).”
8. In fact in crossexamination Officer of the Corporation has
admitted that she would not be able to identify the location and
boundaries of the subject premises and it has also been contended that
none of the notices issued by the Corporation were received by the
appellant since admittedly they were tried to be served upon the open
plot of land. Further more the Officer does not seem to be aware about
the prior litigation as also all the relevant facts. All these aspects were
crucial to be deliberated upon by any quasi judicial authority before
passing an order which would have serious civil consequences, rather
than accepting the version of the corporation as gospel truth.
9. Needless to say that reasoning is soul and spirit of an order
passed by such authority because in the absence of such reasoning every
one including parties to the proceedings as well as appellate court is
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handicapped. Furthermore, it would also not be appropriate for the
appellate court, for the first time to deliberate on these factual aspects
and give it’s findings since that would cause prejudice to either side
because they would loose their statutory right of appeal to assail those
findings.
10. Considering all these aspects, I have no other option but to
remand the matter directing the Enquiry Officer to pass a reasoned
order after considering all the relevant aspects of the matter. It is
clarified that all the points are kept open before the Enquiry Officer
including that of non service of the notices by the Corporation. In such
circumstances, I answer the points accordingly and pass the following
order:
O R D E R
1) Misc.Appeal No.101 of 19 is partly allowed.
2) Impugned order dated 28th January,2019 passed by the Enquiry
Officer is hereby set aside and the matter is remanded back to the
Enquiry Officer, who will complete the inquiry in accordance with
law and as per the directions herein above and pass appropriate
order.
3) Needless to say that the Enquiry Officer shall not be influenced by
the observations made herein above.
Sd/
17/03/2021 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 17/03/2021
Transcribed on : 17/03/2021
Signed by HHJ on : 17/03/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/03/2021 5.00 p.m. B.R.HATEKAR S.G.
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI S.B.AGRAWAL (CR No.19)
Date of Pronouncement of Judgment/Order. 17/03/2021
Judgment/order signed by P.O on 17/03/2021
Judgment/order uploaded on 18/03/2021
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