Final Order 1

Order Details: Copy of Judgment
Pdf Text: Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
Received on : 07.03.2019
Registered on : 25.03.2019
Decided on : 27.09.2021
Duration : Y02 M06 D20
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.109 of 2019
(CNR No.MHCC01 00026892019)
Shri Shivsharan Ramchandra Mishra
Age 33 years, Occ: Service Deleted Since deceased
Smt. Shantadevi Ramchandra Mishra
Age: 76 years, Occ: Housewife
R/a Ground floor, “B”Building,
Girgaon Post Office Compound,
C/o Girgaon M.D.G.,
Mumbai 400 004 ..Appellant
Versus
1. Estate Officer
Officer of the Post Master General
Mumbai Region, Mumbai 400 001
2. Union of India
through the Estate Officer &
Assistant Post Master General,
Mumbai Region (M.R.),
Office of the Post Master General,
Mumbai Region, Mumbai 400 001 ..Respondents
APPEARANCES
For the appellant:
− Mr. Ravindra Kachare, Advocate
For the Respondents
− Mr.R.P.Ojha, Advocate
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL (C.R.No.19)
Dated : 27th September, 2021
ORAL JUDGMENT:
This appeal is preferred against the order passed by the Estate
Officer of Postmaster General (MR), Mumbai on 6.2.2019 u/s. 5 (1) The
Public Premises (Eviction of Unauthorized Occupants) Act, 1971
directing eviction from the subject premises namely Ground Floor, “B”
Building, Girgaon Post Office Compound,C/o M.D.G. Mumbai 400 004
as also u/s. 7 for payment of damages of Rs.60,05,131/.
2. Facts material for disposal of this appeal are as under:
It is not in dispute that by a Deed of Conveyance, the original
owner Shri Govindram Shivnarayan Rungtha sold the entire
compound/premises to respondent No.2 on 31.3.1967. It is claimed by
the appellant that one Shri Madhukar Kanji Mehta was doing the
business in the name of “Joshi Club” as a tenant of the original owner.
However, he let out the subject premises to Shri Ramchandra
Brahmadin Mishra with the consent and knowledge of the original
owner. Vide notice dt.28.12.1967 respondents terminated the tenancy
of said Shri R.G.Joshi, which was received by said Mr. Madhukar K.
Mehta who informed the respondents that he had purchased the
premises from Shri R.G.Joshi and that notice was wrongly issued in the
name of Shri R.G.Joshi. However, eviction order was passed against
Shri Madhukar K. Mehta which was challenged in Appeal No.62 of 1987
before this Court and the other occupants who were similarly evicted
also challenged the eviction orders. Said appeals were allowed and
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
liberty was granted to initiate the proceedings against unauthorized
occupants.
3. Thereafter, a show cause notice was issued u/s.4 of The Public
Premises (Eviction of Unauthorized Occupants), Act on 24.6.2016 to
Shri Ramchandra Brahmadin Mishra who was the father of the original
appellant before me and the husband of the present appellant, seeking
eviction and damages. Pursuant to the said notice, the original appellant
appeared before the Estate Officer, however, he chose not to file reply
and placed reliance on the following documents:
(i) Photocopy of Water Supply and Sewerage Department Bill No.
025744 dt. 9.11.1989.
(ii) Photocopy of MTNL Telephone Bill No.2031852968.
(iii) Photocopies of rent bill acknowledged by Shri Joshi Club dt.
2.8.1972, 4.5.2003, 11.6.2006, 18.3.2008 and Post Office
Receipt dt. 2.9.2011 for Rs.2286.
(iv) Photocopy of Bank of India statement of A/C
No.001220100020565 dt. 5.5.2006.
(v) Photocopy of IT Returns (Challant No.11) for the Assessment
Year 19951996 alognwith 4 (four) enclosures.
(vi) Photocopy of Paper Advertisement related to the death of Shri
M.K.Mehta.
(vii) Photocopy of first page of PO Pass Book dt.28.8.1989 of Charni
Road PO, Mumbai – 400 004.
(viii) Photocopy of BEST Electricity Bill of Consumer No. 471450092
for the month of January, 2009.
(ix) Photocopy of Ration Card No. 579638 and another photocopy of
Ration Card SC No.373553.
(x) Photocopy of list and acquaintance given by Shri Ramchandra
Mishra to PRI (P), Girgaon MDG SO on 12.9.2011.
(xi) Photocopy of Election Commission Identity Card No. MT/04 /
23006193 of Shri Ramchandra Mishra.
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4. Upon considering the material placed on record, the Estate Officer
having found that the occupation of the subject premises by the heirs of
Shri Ramchandra Mishra was unauthorized and the premises were
bonafide required by the respondents, ordered their eviction as well as
damages.
5. It is the contention of the Learned Counsel for the appellant that
the father of the original appellant had come in the possession of the
subject premises prior to its' acquisition by the respondents. However,
this fact has not been considered by the Estate Officer and that being so,
The Public Premises (Eviction of Unauthorized Occupants) Act, would
not be applicable to the subject premises. It is also contended that the
original tenant Shri M.K.Mehta inducted the father of the original
appellant with the knowledge and consent of the original owner and at
the time of acquisition of the subject premises by the respondents he
was occupying the subject premises. Upon this solitary ground, the
order as regards the eviction is taken exception to. As far as payment of
damages is concerned, it is contended that damages are levied from the
year 1967 onwards, when infact the present notice was issued only in
the year 2016 pursuant to which the proceedings were initiated and on
this count the award of the damages is assailed.
6. Learned Counsel for the respondents on the other hand submitted
that there is no iota of material to suggest the occupation by the father
of the original appellant in the subject premises since prior to 1967 and
that this plea is wholly frivolous. As regards damages is concerned, he
fairly concedes and leaves the matter to be decided by the Court.
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
7. In such circumstances, following points arise for my consideration
and my findings thereon for the reasons therefor, are as under:
POINTS FINDINGS
1. Whether the original appellant proves that his
father Shri Ramchandra Brahmadin Mishra
was inducted by Shri M.K.Mehta with the
knowledge and consent of the original owner
Shri Govindram S.Rungtha since prior to
31.3.1967?
..In the negative.
2. Whether the appellant is in unauthorized
occupation of the subject premises?
..In the affirmative.
3. Whether the order of damages is just, proper
and legal?
..In the negative
4. Whether the impugned order warrants
interference in appeal?
..Partly, as regards
damages only.
5. What order? ..As per final order.
REASONS
Point Nos. 1 to 4:
8. At the outset, it would be apposite to mention that although the
original appellant had an opportunity to file reply, he had not filed reply
before the Estate Officer contesting the claim of eviction and damages.
He has not even made out a ground before this Court that for any
reason he was unable to file reply or for that matter he was not afforded
proper opportunity of hearing before the Estate Officer.
9. Now, if we see the documents filed by the original appellant
before the Estate Officer, it would be apparent that not a single
document shows the occupation of father of the original appellant prior
to 1967 and thus, it is quite apparent that there is no shred of evidence
to justify the aspect of occupation prior to 1967 and it merely appears to
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
be an attempt to get away with the proceedings. Apart from that, not a
single document was filed by the original appellant before the Estate
Officer to show the occupation of the father of the original appellant in
the subject premises or for that matter of the appellant, was authorized,
valid and legal.
10. Furthermore, if the history narrated in the Memo of Appeal is
taken into consideration, it would be apparent that when the alleged
predecessor tenants of the father of the original appellant were sought
to be evicted and appeal thereagainst was filed in the year 1988, the
father of the original tenant does not seem to be in picture anywhere
and thus, it cannot at all be said that the occupation was prior to 1967
or for that matter authorized. Furthermore, the respondents have made
out a case for bonafide requirement before the Estate Officer and in this
view of the matter, order of eviction cannot at all be faulted with.
11. As far as order of damages is concerned, from the impugned order
it is quite apparent that the damages are levied from the year 1967
onwards. There cannot be any justification for the same. There is no
basis for quantification of damages and as such, the order of the
damages cannot be sustained and the matter deserves to be remanded
so far as quantification of damages is concerned, which shall be decided
after giving opportunity to the appellant and adhering to the principles
of law in that regard. In such circumstances, I answer the points
accordingly and pass the following order:
ORDER
1. Misc. Appeal No.109 of 2021 is partly allowed.
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
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2. Order passed by the Estate Officer on 6.2.2019 for eviction is
confirmed, however, as regards the damages, it is set aside and
matter is remanded back to the Estate Officer for quantification of
damages in the light of the aforesaid directions.
27.9.2021 (S.B.AGRAWAL)
Principal Judge,
City Civil Court,
Gr.Bombay.
Dictated on : 27.9.2021
Transcribed on : 27.9.2021
Signed on : 27.9.2021
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Shivsharan R. Mishra (Since Deceased) Smt. Shantadevi Ramchandra Mishra Vs. Estate Officer and Anr.
Misc. Appeal No.109/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 30.9.2021 (At 11.35 am)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 27th September, 2021
Order signed by P.O. on 27th September, 2021
Order uploaded on 30th September, 2021
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