Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal66.18
Received on : 14/02/2018
Registered on : 20/02/2018
Decided on : 07/04/2018
Duration : Y M D
00 01 20
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.66 of 2018
Dattatray Sakharam Upadhye
through Mr.Prakash Laxman Pakhare
constituted attorney of
Mr.Dattatray Sakharam Upadhye,
retired Municipal employee,
residing in room no.7,
Bk.No.F/1, New Denonar
Municipal Colony, Govandi(W),
Mumbai43 ..Appellant
V/s.
The Municipal Corporation of Gr.
Mumbai, a body Corporate
constituted under the Mumbai
Municipal Corporation Act 1888
and having it's principal office
@ Mahapalika Marg, Mumbai1 ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 7th April,2018
(C.R.No.19)
Advocate Mr. B.S. Baraskar for appellants.
Advocate Mr. A. Dharmesh Vyas @ advocate Mr.A. V. Divate for
respondent.
O R A L J U D G M E N T
This appeal is filed under Section 105F of the Mumbai
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Municipal Corporation Act, 1888 (for short 'MMC Act, 1888'),
challenging the order of eviction dated 09.01.2018, passed by the
Enquiry Officer in Enquiry No. ME/146/Estt. of 2017, the enquiry
proceeding initiated under Section 105 B of the MMC Act 1888 against
the appellant.
2 Facts necessary to decide the present appeal are as under :
The appellant is an exemployee of the Municipal
Corporation, who retired from the municipal service. During his
service with the corporation, the appellant was allotted one Corporation
premises i.e. Room No. 7 ground floor, Bk. No.F/1, Deonar Municipal
Colony, Govandi (W), Mumbai on execution of a Leave and License
Agreement dated 05.02.1972 (Exh.A colly) with effect from 05.02.1972
on the terms and conditions mentioned therein. One of the conditions
in the said agreement was that the license shall terminate on retiring of
the occupant from municipal service or on his discharge or dismiss from
municipal service. In this case, even after his retirement, the appellant is
still occupying the premises with legitimate expectation of
implementation of Resolution No. 343 dated 01.09.1989, passed by the
Municipal Corporation for converting the tenements allotted to the
employees on Leave and License basis into Ownership basis.
Admittedly, the said resolution is not implemented till date.
3 It is the case of the appellant that the Corporation issued a
15 days Quit Notice dated 24.05.2017 (Exh. B). In spite of service of
notice the appellant preferred not to appear. The enquiry proceedings
proceeded exparte against the appellant. As the the appellant did not
vacate the quarter allotted to him, Eviction Proceeding was initiated
against him before the Enquiry Officer under Section 105 B of MMC
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Act, 1888. A Show Cause Notice as required under Subsection 2 of
Section 105B of the Act was issued and served upon the appellant.
Enquiry Officer recorded evidence as adduced by the Corporation. The
Enquiry Officer passed the impugned order and served the same on the
appellant under Section 105B(1) of MMC Act, 1988. The impugned
order is challenged in this appeal.
4 I have considered the submissions on behalf of both the
parties. The following points arise for my consideration and my
findings thereon are as under for the reasons to follow:
POINTS FINDINGS
1 Did the Corporation prove that ..In the affirmative
the appellant is in unauthorized
occupation of the Corporation
premises ?
2 Is the order of Enquiry Officer ..In the affirmative
legal, proper and correct ?
3 What order? ..As per final order
R E A S O N S
5 Points no.1 to 3:
At the outset, Ld.Counsel for the appellant Advocate Shri
Baraskar mainly relied on the resolution No.343 dated 01.09.1989
passed by the corporation and other correspondence and circulars
issued on the basis of the said resolution and tried to convince this court
that as per the assurances given by the corporation from time to time to
its employees, who are in occupation of the corporation premises even
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after their retirement, for conversion of the same into ownership basis
and therefore the appellant is not in an unauthorized occupation.
6 While the Ld.Counsel Shri.Vyas on behalf of the Corporation
supported the impugned order and mainly relied on the judgment of the
Hon’ble Bombay High Court in the case of Brihan Mumbai
Mahapallika Upanagar Baithi Chawl Rahiwashi Sangh V/s The
Municipal Corporation of Greater Mumbai and Ors. decided on 6th
January, 2017 in Writ Petition No. 1797/2009, wherein their
Lordships have dismissed the writ petition filed by some of the ex
employees of the Municipal Corporation for implementation of the said
resolution No. 343 dated 01.09.1989 and the same was upheld by the
Hon’ble Apex Court.
7 I have considered the submissions on behalf of both the
parties. At the outset, the scope for consideration before this Court,
being an appellant authority, is not greater than the authority whose
order is challenged in this appeal. The impugned order is passed under
Section 105 B of MMC Act, 1888. For ready reference Section 105 B is
reproduced herein below :
“Power to evict person from Corporation premises.
(1) Where the Commissioner is satisfied
(a) that the person authorised to occupy any
corporation premises has, whether before or after
the commencement of the Bombay Municipal
Corporation (Amendment) Act, 1960
(i) not paid for a period of more than two
months, (the rent, taxes, fees or
compensation) lawfully due from him in
respect of such premises; or
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(ii) sublet the whole or any part of such
premises; or
(iii) committed, or is committing, such acts of
waste as are likely to diminish materially the
value, or impair substantially the utility, of
the premises; or
(iv) otherwise acted in contravention of any
of the terms, express or implied, under
which he is authorised to occupy such
premises;
(b) that any person is in unauthorised occupation
of any corporation premises;
(c) that any corporation premises in the
occupation of any person are required by the
corporation in the public interest,
the Commissioner may notwithstanding anything
contained in any law for the time being in force, by
notice (served by post, or by affixing a copy of it on
the outer door or some other conspicuous part of
such premises, or in such other manner as may be
provided for by regulations), order that that
person, as well as any other person who may be in
occupation of the whole or any part of the
premises, shall vacate them within one month of
the date of the service of the notice”.
8 Section 105B empowers the Commissioner of the
Corporation to evict a person from corporation premises on the grounds
mentioned therein. 'Unauthorised occupation' is one of the grounds
mentioned therein under clause (b). Section 68 of MMC Act 1888
allows the commissioner to delegate any of his powers, duties and
functions conferred upon him to be exercised, performed or discharged
by any municipal officer. In this case, the power of the Commissioner
under Section 105B of MMC Act, 1888 have been delegated to Enquiry
Officer Smt. Radhika B. Pradhan vide order dated 30.06.2105.
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9 Undisputedly, enquiry premises is owned by the
corporation. The only issue to be decided by the Enquiry Officer was
about the unauthorized occupation of the corporation premises by the
appellant. The MMC Act, 1888 does not provide for the definition of
‘unauthorised occupation’. However, the definition of the same term is
provided under Section 2 (g) of the Public Premises (Eviction) Act,
1971. The provisions i.e. Section 105 B to 105 F of the MMC Act, 1888
being similar in nature and object of the provisions of the Public
Premises(Eviction) Act, 1971 it would be appropriate to refer the said
term under Public Premises(Eviction) Act, 1971. Section 2(g) of the P.P.
Act, 1971 is reproduced below,
Section 2(g) ‘ unauthorized occupation’ in
relation to any public premises, means the
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
(whether by way of grant or any other mode of
transfer) under which he was allowed to occupy
the premises, has expired or has been
determined for any reason whatsoever”.
10 As per this definition, ‘unauthorized occupation’ 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. In the
instant case, no doubt, the entry of the appellant to the enquiry
premises is authorized and lawful. He, being an employee of the
Municipal Corporation, was allotted a staff quarter on execution of the
Leave and License Agreement dated 05/02/1972. Clause 6 of the said
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agreement dated 05/02/1972 provides for the termination of the lease
on retiring of the occupant from municipal service or on his discharge
or dismiss from municipal service. In the instant case appellant retired
therefore, on the retirement of the appellant the lease stands
determined. However, the appellant is still in possession of the
Corporation premises in spite of his retirement and paying rent and the
same is being accepted by the Corporation. In such circumstances, in
order to determine the nature of the occupation of the appellant, it is
necessary to refer to the provisions of the Transfer of Property Act (T. P.
Act, for short) relating to the lease.
11 Section 108 of the T. P. Act enumerates the rights and
duties of the lessor and lessee. As per clause B(q) of section 108, on the
determination of the lease, the lessee is bound to put the lessor into
possession of the property. In the instant case the appellant has not
given possession of the premises to the Corporation even after his
retirement and is still in occupation and paying monthly rent and the
same is being accepted by the corporation. Section 116 of the T. P. Act
provides for effect of holding over. Section 116 is reproduced herein
under for ready reference:
“Section 116. Effect of holding overIf a lessee or
underlessee of property remains in possession thereof
after the determination of the lease granted to the
lessee, and the lessor or his legal representative accepts
rent from the lessee or underlessee, or otherwise
assents to his continuing in possession, the lease is, in
the absence of an agreement to the contrary, renewed
from year to year, or from month to month, according
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to the purpose for which the property is leased, as
specified in section 106.”
As per this provision, if the lessee remains in possession of the property
after the determination of the lease and the lessor accepts the rent, the
lease, in the absence of an agreement to the contrary, renewed from
year to year, or from month to month, according to the purpose for
which the property is leased, as specified in section 106. In view of this
provision, in the case in hand, as there is no agreement to the contrary
brought to the notice of this court, it is to be presumed that the tenancy
of the appellant is renewed from month to month as the payment of
rent is monthly. And as per section 106 of the T. P Act, in the absence of
a written agreement between the parties, the lease for month to month
is terminable, on the part of the lessor or the lessee, by fifteen day’s
notice expiring with the end of the month of the tenancy.
12 In the instant case, admittedly, the Municipal Corporation
issued 15 days notice dated 24.05.2017, which was received to the
appellant but he did not vacate the quarter. The corporation initiated
the eviction proceedings before the enquiry officer under the provisions
of the Corporation Act. The record and proceeding before the Ld.
Enquiry Officer shows that the Ld.Enquiry Officer, being a quasi judicial
authority has duly followed principals of natural justice and gave an
opportunity of hearing to the appellant and passed a reasoned order. I
do not find any error or perversity in the order of Ld.Enquiry Officer.
The occupation of the appellant to the Enquiry premises is proved to be
unauthorized and he is liable to be evicted.
13 Furthermore, the Hon'ble High Court has already dismissed
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the Writ Petition No.1797/2009 which was filed by some of the ex
employees of the Municipal Corporation, who are in possession of the
staff quarters even after their retirement, inter alia for the issuance of
Writ of Mandamus to implement the Resolution No. 343 dated
01/09/1989 passed by the Municipal Corporation for converting
allotment of rented tenements into ownership basis. The Hon'ble
Supreme Court confirmed the order of the Hon'ble High Court by order
dated 01/05/2017 in SLP(C) No.13605/2017. In this judgment, the
Hon'ble High Court has made it clear that it shall not be the duty of the
Municipal Corporation to provide any housing accommodation to the
petitioners, much less allowing retention of the present municipal
accommodation. It is also clarified that this will have no corelation
and the petitioners can not perpetuate and continue their stay in their
premises for they are held to be municipal premises.
14 The entire tone and tenor of the above said judgment is
that the tenements assumed the character of the municipal properties
and nobody can claim any vested right to occupy the same.
15 In such circumstances, there is no scope for this Court to
even consider any of the correspondence, circular or resolution as relied
on by the Learned advocate Shri Baraskar on behalf of appellant. In
view of the above, I answer both points accordingly and pass the
following order :
O R D E R
1) Misc.Appeal No.66/2018 stands dismissed.
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2) R & P be sent back forthwith to the respondent.
07/04/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 07/04/2018
Transcribed on :12/04/2018
Signed by HHJ on :
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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: 05/05/2018 (At 11.00 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 7th April,2018
Order signed by P.O. on 4th May,2018
Order uploaded on 5th May,2018
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