Final Order 1

Order Details: Copy of Judgment
Pdf Text: Received on : 06.03.2019
Registered on : 16.03.2019
Decided on : 21.12.2021
Duration : Y02:M09:D15:
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC.APPEAL NO.107 OF 2019
(CNR NO:MHCC01-002620-2019)
M/s.Decent Soap Factory
Private Limited, having their
office at 46/296, Nagdevi Street,
Opp.Crawford Market,
Mumbai400003. … Appellants
Versus
The Municipal Corporation
of Greater Mumbai, having
its office at Mahapalika
Bhavan, Mahapalika Marg,
Fort, Mumbai400 001. ... Respondents
(APPEAL UNDER SECTION 105F OF M.M.C. ACT, 1888)
Shri. Rahul Thorat, Learned advocate for Appellants.
Smt. Ruhi Hajare, Learned advocate for Respondents.
CORAM: H.H.THE PRINCIPAL JUDGE
U.S.JOSHIPHALKE(C.R.No.19)
DATED: 21st DECEMBER, 2021
JUDGMENT
1. Present Appeal is against order of Estate Officer in Enquiry
No.MW/07/GMDA of 2018 dated 28.01.2019 by which eviction order is
passed in respect of Plot No.70 U/s.105B of Mumbai Municipal
Corporation Act.
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2. Brief facts of the case are as under:
The appellants are Lessees and are exclusively use, occupation
and possession of a plot of land admeasuring 600 sq.mtrs., bearing Plot
No.70, Survey No.93 (part)corresponding to C.T.S. No.1(part) of
Deonar Village, Mumbai suburban district and situated at Govandi,
Mumbai. As per contentions of the appellants that initially said larger
plot was located near Deonar Abattoir. In the year 198283 the
respondents had subdivided the said larger plot into 88 subplots. The
subplot was divided for giving the same on lease basis for establishing
factory premises. After complying necessary formalities vide resolution
NO.78 dated 06.04.1985 plot was allotted to the appellants for a period
of 60 years. As per the appellants though the possession of said
premises was handed over to him by respondents in 1984, but Lease
Deed was not executed in favour of appellants. Said Lease Deed was
executed on 25.07.1990. Rent was fixed as Rs.3024/ per month. As
per the terms and conditions of the said Lease Deed appellant to carry
out construction within a period of one year. Rent was to be paid time
to time. Appellants have obtained NOC on 14.07.1986 from Director of
Industries for construction of factory. Appellants have also submitted
building proposal with department of the respondents. Appellants
further vide letter dated 15.02.2008 requested the office of General
Manager Deonar Abattoir to issue necessary NOC for construction of
factory.
3. Suddenly office of General Manager Deonar Abattoir issued
notice bearing No.GMDA/612/AC dated 24.06.2008 intimating the
appellants that premises was not used by them as Ancillary Industry to
Deonar Abattoir and appellants have committed breach of condition of
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lease. Appellants by reply informed Factory Building proposal presented
long back which is not approved by the respondents and requested to
withdraw the notice. As General Manager not succeeded in evicting the
appellants from the premises, by joining hands with respondents,
respondents issued notice bearing No.AC/ME/556/GM/AEBF dated
13.03.2015 contending that during inspection it was observed that
appellants were carrying out trade/business/stacking of poultry work,
parking of vehicles etc. Appellants replied the said notice also on
16.03.2015. Again appellants have received notice bearing No.ME/
DO4ME/140/351MMC/ME189N01 dated 02.09.2017 alleging that
appellants carried out unauthorized temporary construction. In view of
threats appellants filed the suit in City Civil Court as respondents were
not succeeding in getting possession. The office of General Manager
issued notice on 17.04.2018 U/s.105B of Mumbai Municipal
Corporation Act. By the said notice it is alleged that during inspection
dated 02.04.2018 it revealed that premises is used for other purpose
than which is mentioned in Lease Deed. Thus, appellants have
contravened clause 3 of Lease Deed.
4. It is not in dispute that the subject premises was leased out to
the appellants for a period of 60 years under a Lease Deed with specific
condition mentioned in the lease that the premises would be used for
ancillary unit of Deonar Abattoir. If it is used for other purpose, it is
necessary to take NOC from the Corporation. Earlier notice is
challenged by the appellants by filing the suit which was decreed.
Whereas it is contention of the respondents that appellants have used
the premises other than mentioned in Lease Deed. Therefore, notice
was issued. Respondents have also filed eviction proceedings before the
Enquiry Officer.
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5. Inquiry officer after recording the evidence passed the eviction
order. Appellants have challenged the said eviction order on the
ground that impugned order is not reasoned order and other relevant
grounds.
6. Heard both the sides. Following points arise for my
consideration and I answer the same as follows.
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
As to Point nos.1 and 2:
7. As per contention of appellants as respondents could not get
possession after several efforts, therefore proceedings is filed before the
Enquiry Officer. First notice was issued in 2008 and thereafter no action
was taken. Present proceedings before the Enquiry Officer is only on the
basis of inspection by official of Corporation in the subject property. It
is further contention of appellants that the material adduced by the
corporation before the Enquiry Officer is wholly insufficient. It is alleged
that business making stage decoration of wooden was running on the
site which is illegal and violation of condition of lease. Exh.A is the
notice U/s.105B wherein it is mentioned that premises is used for other
purposes than mentioned in lease which is illegal. Exh.B is the reply to
the said notice. Inspection report regarding inspection of the above
premises plot no.70 and other premises was carried out from
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02.04.2018 to 04.04.2018. As per the inspection report, one
Parmeshawar Hable was present and he gave information that one
Hanif Bhai Bagwan gave him plot on rental basis. It is submitted that
presence of Parmeshawar Hable on spot is doubtful.
8. After perusal of inspection report, it reveals that name of person
who visited the premises and carried out inspection is not mentioned.
Inspection report nowhere shows that what was found during
investigation. It is vaguely stated that plot was seen utilized for wooden
stage decoration and hence there is a violation. The recitals of
inspection report shows that on site one Parmeshwar Hable was
present. He has given information that he has taken plot on rental basis
from Hanif Bhai Bagwan owner of plot and running business of making
stage decoration. On site it is also observed that plot is partly covered
with GI sheet with front open space and used for storage of wooden
material. Respondents have examined Smt.Shilpa Naik. Her cross
examination shows that she is not aware about previous litigation as
also all relevant facts. She is unable to state how many plots she has
inspected on 02.04.2018. She is unable to state the contents which
were recorded during the inspection. All these aspects which are crucial
are not taken into account by Enquiry Officer while passing the order.
Enquiry Officer has accepted the version of Corporation as gospel truth.
9. It is pertinent to note that reasoning is soul and spirit of an order
passed by such authority because in the absence of such reasoning
parties to the proceedings as well as appellate court is handicapped.
Furthermore, it would also not be appropriate for the appellate court,
for the first time to discuss on these factual aspects and give it’s findings
since that would cause prejudice to either side because they would
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loose their statutory right of appeal and challenge those findings. The
other connecting matter already remanded back by this Court.
10. Considering all these facts, it will be just and proper to
remand the matter directing 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 the above
circumstances, I answer the points accordingly and pass the following
order:
O R D E R
1. Misc.Appeal No.107 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. Enquiry Officer shall not be influenced by the observations made
herein above.
21/12/2021 (U.S.JOSHIPHALKE)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 21/12/2021
Transcribed on : 21/12/2021
Signed by HHJ on : 21/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/12/2021 2.30 P.M. B.R.HATEKAR (S.G.)
Name of the Judge HER HONOUR THE PRINCIPAL JUDGE
URMILA S.JOSHI-PHALKE (CR No.19)
Date of Pronouncement of Judgment/Order. 21/12/2021
Judgment/order signed by P.O on 21/12/2021
Judgment/order uploaded on 21/12/2021
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