Final Order 3

Order Details: Copy of Judgment
Pdf Text: MHCC010029982019 Received on : 15.03.2019
Registered on : 20.03.2019
Decided on : 25.01.2023
Duration : Y03:M10:D10:
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC.APPEAL NO.108 OF 2019
Shyamkant Yashwant Malkar,
Aged : 50 years, Occ.: Service,
R/at: Room NO.5, Chawl No.D8,
Ground Floor, S.G.Barve Nagar,
Ghatkopar(W), Mumbai400 084. … Appellant
Versus
1. The Municipal Corporation of
Gr.Mumbai, a statutory body
incorporated under the Mumbai Municipal
Corporation Act, 1888 having its
registered office at Mahapalika Bhavan,
Mahapalika Marg, Fort, Mumbai 400 001.
2. Chief Enquiry Officer,
NWard Office MCGM,
3rd Floor, Jawahar Road,
Ghatkopar(East), Mumbai 400 077.
3. Administrative Office(Estate),
NWard Officer, MCGM.
3rd Floor, Jawahar Road,
Ghatkopar(East), Mumbai 400 077 ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 25th JANUARY, 2023
Ld.Adv.Rajiv Deokar for appellant.
Ld.Counsel Dharmesh Vyas @ Adv.Ruhi Hajare for respondents.
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ORAL JUDGMENT
1. By the present appeal, the appellant/original respondent is challenging
the order passed by the learned Chief Enquiry Officer in Enquiry
No.N/29 of 2018 dated 29.01.2019.
2. It is the case of the respondent/Corporation that the premises were
allotted to late father of the appellant and it was in lieu of the services
and being employee of respondent no.1. He retired on 01.08.1995 and
expired on 10.07.2011 and thereafter notice to quit was given on
12.12.2017. Another notice was given on 07.08.2017. Inspite of the
same, the present appellant refused to quit and hence proceedings were
initiated. It is hence submitted that the appellant should be evicted.
3. The said proceedings were contested before the learned Enquiry Officer
on various grounds. After hearing both the sides by the impugned
order, the learned Enquiry Officer passed order of eviction. Hence,
present appeal.
4. Herd learned Counsel for the appellant. He vehemently submitted that
the occupation is a long occupation of 41 years and thus there can be no
eviction as the action is barred by limitation. The present appellant
could not be evicted because he is a tenant and only if the ground under
the Rent Act made out he can be evicted. No notice is issued to all the
legal representatives and there is no panchanama of pasting. First
notice was served on the wife, but second notice was not served on her.
There is no resolution of the Corporation of grant of accommodation of
1989 of permanent basis. Same has not been considered. There is no
opportunity to crossexamine, is given in proper perspective. There is
no notice of eviction given to late Yashwant Malkar and the request for
allotment to the present appellant is pending and same quarter should
be allotted to him as office quarter.
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5. Heard learned advocate for the respondent and perused the written
argument. He vehemently submitted that these are staff quarter. There
is no right to hold as permanent allocation of quarter. Same has been
decided by the Hon'ble High Court of Bombay. Considering the facts
and circumstances of the case, it is submitted that the appeal be
dismissed as no grounds are made out.
6. Perused the impugned order, considered the submissions and on the
basis of the facts of the case, following points arise for my consideration
and I answer the same as under for the reasons stated hereinafter:
Sr. Nos POINTS FINDINGS
1 Whether the appellant can be said to be
unauthorized occupant?
:: In the affirmative
2 Whether the impugned order requires any
interference?
:: In the negative
3 What order? :: As per final order
REASONS
As to Point No.1:
7. If we consider the notice given U/s.105B, it is clear that he notice
contemplates that there is stark unauthorized occupancy. It is clearly
pointed out in the said notice that the father who was employed with
respondents and by virtue of the employment he was given the said
premises. The record also indicates that the present appellant has stated
that he was born and residing in the said premises and he has made
application for allowing him to continue to occupy till his retirement.
Thus, no ground has made out of permitting him to continue with the
occupation of the said premises.
8. It is true that the Eviction Proceedings has gone at a great length and
after much delay. The proceedings being an Inquiry an dnot a suit ,
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Law of Limitation will not apply. As regards the law of limitation, the
present proceedings cannot be considered to be a suit for making the
said provisions applicable as has been held in the case of Vinod Sharma
vs. Estate Officer, Delhi Development Authority (13.12.2021
DELHC) : MANU/DE/ 3564/ 2021 wherein it is held:
"16. The Court further notes that the question of application
of principles of limitation to proceedings under the Act is no
longer res integra having been categorically rejected by this
Court in Nandram Vs. Union of India where it was held:
"14. .... Besides, the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 is a special Act and it has
provided for a period of limitation wherever it is necessary
and, therefore, the provisions of the Limitation Act as such
cannot be made applicable to such a special Act. In this
connection, reference may be made to the decision of the
Supreme Court in T.K. Lakshmana Iyer and Others v. State of
Madras and Others, MANU/SC/0171/1968MANU/SC/
0171/1968 : AIR 1968 SC 1489 and the decision in Town
Municipal Council v. Presiding Office, Labour Court, Hubli
and Others,MANU/SC/0331/1969MANU/SC/0331/1969 :
AIR 1969 SC 1335. Reference may also be made to decision
of the Madhya Pradesh High Court in the case of L.S. Nair v.
Hindustan Steel Ltd. Bhilai and Others, MANU/ MP/
0021/1980MANU/MP/ 0021 /1980: AIR 1980 MP 106. In
the said Division Bench decision of the Madhya Pradesh High
Court delivered by the Chief Justice, G.P. Singh (as his
Lordship then was), it was held that the Estate Officer is not a
court and, therefore, the Limitation Act does not apply to a
proceeding before him. It was further held that as Limitation
Act does not apply and jurisdiction of Civil Court is entirely
barred in matters governed by 1971 Act, there is no period of
limitation for recovery of damages for unauthorised use and
occupation of Govt. Company's quarter by its employee. I
respectfully agree with the aforesaid decision of the Madhya
Pradesh High Court and hold that to the proceeding under
The Public Premises (Eviction of Unauthorised Occupants)
Act, 1971, the provisions of the Limitation Act shall not
apply..."
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9. Again, in Sharma Montessori School & Oriental College Society Vs.
Union of India, this Court observed:
"Having considered the submissions advanced, impugned order, the
material on record and decisions cited, I find that there is no
limitation provided in the Public Premises Act for initiation of
eviction proceedings or for recovery of damages. This Court in
Nand Ram v. Union of India, MANU/DE/0077/
2000MANU/DE/0077/2000 : 87 (2000) DLT 234, has
categorically held that Public Premises Act being a special Act
would prevail upon the Limitation Act. So, petitioner's reliance
upon decision in Inderjeet Singh (supra) is of no avail as the same
has been considered by this Court in a later decision in W.P.(C)
No. 4688/1997, titled as New Delhi Municipal Council v. Charan
Singh Gupta, rendered on 30th September, 2004, wherein it has
been noted that even if the provisions of Limitation Act, 1963 do
not apply to proceedings under Public Premises Act, but still, an
authority must act expeditiously in taking out proceedings for the
recovery of damages.
It would be pertinent to take note of the fact that the decision in
Inderjeet (supra) has been considered in a later decision of this
Court in NDMC v. Charan Singh (supra), acknowledging the legal
position of non applicability of the Limitation Act to proceedings
under the Public Premises Act but in view of the fact that the
unauthorised occupant was no more alive and was survived by the
legal heirs only, the recovery of quantum of damages was restricted
to a period of three years prior to the initiation of the eviction
proceedings. Therefore, the precedential value of decision in Nand
Ram (supra) is not watered down and holds the field. Thus,
applying the ratio of decision in Nand Ram (supra), I repel
petitioner's plea of the proceedings under the Public Premises Act
being barred by limitation."
10. If the crossexamination of the appellant is considered he admits that
the premises was allotted to his father and it was allotted as staff
quarter. He further admits that his father retired in the year 1995. He
further admits that inquiry premises was allotted as staff quarter on
leave and license basis. He further admits that staff quarter allotted to
the employees of the applicants shall have to be vacated and possession
handed over on retirement from the services. He has admitted that
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after retirement, the premises was not handed over and he as a legal
heir has also not handed over the premises to the applicant. He has
also specifically stated that he was member of the concerned “Rahiwasi
Sangh” and that the Hon'ble High Court and the Hon'ble Supreme Court
of India has passed the orders in the said matters and also directed to
hand over the premises within three months. Same has not been
complied. He has accepted receipts of both the notices and has not
vacated the same. He also accepted that the Corporation has not
allowed him to use and occupy the inquiry premises.
11. The right of the corporation is inherently seen , to be clear from the
fact, that the Appellant seeks extension of occupation on account of his
employment with the Corporation.
12. Thus, one considers the entire facts and circumstances of the case and
above admission of the appellant, it is very clear that the provision of
Chapter VA are squarely applicable. The aspect of production of
executing the leave and license agreement is not required as the terms
of leave and license and it being staff quarters is admitted by the
appellant himself. Admitted facts need not be proved. Considering the
same that it is service quarter and that the original allottee has retired
and then expired, it is clear that the present appellant being legal heir
of the said person and occupying the quarter. In such capacity cannot
withhold the quarter to the exclusion of the authorized employee. This
is more so considering the fact that he is also employee of the
Corporation. Thus, if one considers the facts and circumstances of this
case, nothing remains in the present proceedings. It is not even a
controverted case of legal tenancy or legal occupation. It is admitted
case of unauthorized occupation.
13. The aspect of non framing the regulation U/s.105H have been
considered in the Judgment of Vivek Gawde V/s. Municipal
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Corporation of Greater Mumbai and others, Writ Petition NO.5983
2022 (Group) dated 20th May 2022 passed by the Hon'ble High
Court and considered the same that it is only a permissive non
mandatory provisions, same does not apply to this case and cannot be
said to be fatal to the Corporation and the proper course of law . The
Hon'ble High Court of Bombay and Hon'ble Supreme Court of India has
considered the aspect of Civil rights of grant of permanent occupancy to
the employees. In such circumstances, these also does not apply.
14. Considering the same, I hold that the appellant is unauthorized
occupant of the said premises and I answer the Point no1 in affirmative.
As point no 2:
15. The Learned Competent Authority has considered and adjudicated the
facts in correct perspective and no other view is possible in the facts of
the case and hence the same does not require and interference and I
answer point no2 accordingly.
16. Considering all these facts and circumstances,I pass the following order.
O R D E R
1. Misc.Appeal No.108 of 2019 is dismissed.
2. The appellant is granted time to vacate the premises by 31/03/2023
subject to filing of undertaking that he physically is in occupation of
the premises and that he will not create any 3rd party interest therein
and further that he will honour the order passed.
3. An undertaking to be filed within 3 weeks failing which the order
will be liable to be executed forthwith.
4. In view of disposal of Appeal, pending Stay Application Exh.2 is
disposed of accordingly.
5. Record and Proceedings be sent back to Respondent No.1.
25/01/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 25/01/2023
Transcribed on : 25/01/2023
Signed by HHJ on : 27/01/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/01/2023 3.00p.m. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 25.01.2023
Judgment/order signed by P.O on 27.01.2023
Judgment/order uploaded on 27.01.2023
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