Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.70.18
Received on : 24/01/2018
Registered on : 05/03/2018
Decided on : 07/09/2019
Duration : Y M D
01 06 04
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.70 of 2018
Smt.Kesharabai Sakharam Gaikwad
age60 years, Hindu, Adult,
Indian inhabitant of Mumbai,
Occ.:Retired, residing presently
at room no.4, Chawl No.H,
Adivasi Niwassthan, Unit No.32,
Aarey Milk Colony, Goregaon(E),
Mumbai65 ..Appellant
V/s.
1) Competent Authority, Gr.Bombay
404, 4th floor, New D.D. building,
Old Custom House, Shahid
Bhagat Singh Road, Fort,
Mumbai1
2) Dairy Manager, Aarey Central
Dairy, Aarey Milk Colony,
Goregaon (E), Mumbai65
3) State of Maharashtra
through Government Pleader,
Bombay City Civil Court,
Bombay ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 7th September ,2019
(C.R.No.19)
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Advocate Mr.O.R. Tiwari for appellant.
Advocate Mr.M.B. Jadhav for respondents.
O R A L J U D G M E N T
Being aggrieved by the orders of eviction and damages issued
by the Competent Authority, Gr.Bombay under Sections 4 and 5 of the
Bombay Government Premises (Eviction) Act,1955 (“the Act” for short) on
26th December,2017 in respect of room no.4, Chawl No.H, Unit No.32,
Adivasi Niwassthan, Aarey Milk Colony, Goregaon (E), Mumbai65
(“schedule premises” for short), the appellant has preferred the present
appeal.
2 Brief facts: Government of Maharashtra had constructed
temporary structure of mud and stone for the purpose of accommodating
adivasis free of cost without charging any compensation somewhere in the
year 1958. Since adivasi people did not reside in the said adivasi quarter
and the same was lying vacant, the respondent no.2 allowed the appellant
who at the relevant time was its employee to use and occupy the schedule
premises. Therefore, the provisions of the Act are not applicable to the
schedule premises. During the tenure of her service with respondent no.2
purporting to show that the schedule premises is the Government staff
quarter and for use and occupation, respondent no.2 used to deduct
monthly rent @ 30% of her basic salary without issuing any receipts for the
same. Infact, the schedule premises is not a Government staff quarter but
it is a slum locality and it is known as adivasi zopadpatti. The respondent
no.2 is neither the owner of the said adivasi quarter nor Government of
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Maharashtra passed any order to handover the said quarter to respondent
no.2 by authorising them to accommodate its employee.
3 According to appellant, she retired on or about 31st July,2015.
She was shocked and surprised when she was served with two show cause
notices dated 27th September,2016 for eviction and recovery of exorbitant
amount of compensation. Those notices were replied and was called upon
respondent no.2 to produce documents showing their ownership to the
schedule premises. However, the respondent no.2 failed to comply. She
was again shocked and surprised to receive directly the impugned eviction
order dated 26th December,2017 and also recovery of compensation.
Hence, the appeal.
4 Respondent no.2 resisted the appeal by contending that the
appellant is in unauthorised occupation of the schedule premises and, is
also in heavy arrears of rent. Therefore, impugned orders passed by the
Competent Authority are legal, proper and binding on the appellant. Since
no case is made out, the appeal is liable to dismissed, concluded
respondent no.2.
5 Mr.O.R. Tiwari, learned counsel for appellant, submitted that
the Competent Authority wrongly passed the orders without considering
the reply and documents produced before him. Moreover, no document
was produced before the Competent Authority to show that the schedule
premises belongs to respondent no.2. Thus, the impugned order being
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illegal, the appeal deserves to be allowed, argued learned counsel.
6 Mr.M.B. Jadhav, learned counsel for respondent no.2, on the
other hand, supported the impugned orders by contending that the
appellant is in unauthorised occupation of the schedule premises inasmuch
as she retired from the service on 31st July,2015 and is in huge arrears of
rent. There is absolutely no merit in appeal and the same is liable to be
dismissed with heavy cost, argued learned counsel.
7 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
1) Whether the impugned orders
dated 26th December,2017 are ..In the negative
badinlaw?
2) What Order? ..As per final order
R E A S O N S
As to point no.1:
8 There is no dispute to the fact that the appellant was in the
employment of respondent no.2. There is also no dispute to the fact that
she retired from the service on 31st July,2015. There is further no dispute
to the fact that she was allotted the schedule premises during the course of
her employment for her use till the time she continued in the employment.
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9 The appellant has come with a theory that the schedule
premises infact was forming the part and parcel of adivasi quarters which
was temporary constructed in the year 1958 by the Government of
Maharashtra so as to accommodate adivasi free of cost. However, this
claim is neither substantiated nor established by any cogent and convincing
material by the appellant. Further, according to her, those adivasi quarters
were never allotted to respondent no.2 so as to accommodate its employee.
Even assuming for the sake of argument that it was so then it is not made
clear as to how the respondent no.2 came in possession of those adivasi's
quarters and if it were not of its ownership then what enabled respondent
no.2 to accommodate its employees. One thing is clear and i.e. is that the
appellant impliedly admits the title of the respondent no.2 over the
schedule premises.
10 By her own case, she was inducted in the schedule premises
during the course of her employment. From the record and proceedings of
the respondent no.1 it is clear that after superannuation, the necessary
proceedings were initiated against the appellant so as to get the schedule
premises vacated. She is also found in arrears of rent and accordingly for
the first time the show cause notices dated 27th September,2016 came to be
served upon her. Although she did reply but there was no reason for her to
question the ownership of respondent no.2 in respect of schedule premises
and that to postretirement.
11 From the impugned order dated 26th December,2017 it is clear
that the Competent Authority had heard the appellant and had also gone
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through all the documents produced by her in support of her case. It is
also clear from the impugned order that after hearing both the sides and
observing that the appellant came to be retired with effect from 31st
July,2015, the Competent Authority passed the impugned order alongwith
the order of recovery of damages. I do not find any illegality in the
approach of the Competent Authority while passing the impugned order.
12 Having regard to the material on record and the fact that the
appellant had retired on 31st July,2015, the respondents were within their
rights to initiate appropriate proceeding in accordance with provisions of
the Act. Opportunity of hearing was also given to the appellant and
thereafter, the impugned orders came to be passed. In the circumstances, I
hold that the Competent Authority was justified in passing the eviction
order and the order of damages vide impugned orders dated 26th
December,2017. Therefore, the following order:
O R D E R
Misc.Appeal No.70/18 stands rejected.
R & P be sent back.
07/09/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 07/09/2019
Transcribed on : 07/09/2019
Signed by HHJ on : 09/09/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 09/09/2019 (4.45 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 7th September,2019
Order signed by P.O. on 9th September,2019
Order uploaded on 9th September,2019
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