Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal 71.18
Received on : 03/03/2018
Registered on : 05/03/2018
Decided on : 31/10/2018
Duration : Y M D
00 07 26
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.71 of 2018
1) Mrs.Sayed Yagana Bano
w/o. Azfar Abbas
2) Sayed Mohammed s/o Azfar Abbas
3) Sayed Wasi Mohammed
s/o. Azfar Abbas
all of Mumbai Indian inhabitants,
all residing t F/3, room no.16,
Deonar Municipal Colony,
Govandi, Mumbai43 ..Appellants
V/s.
1) Municipal Corporation of
Gr.Mumbai, 'M' Ward, Municipal
Offices, 1st Road, Chembur,
Mumbai23
2) The Enquiry Officer
Ms.R. V. Pradhan,
Estate Department, MWard,
Municipal Corporation of
Gr.Mumbai, 2nd floor, room
no.209, Chembur,
Mumbai71 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 31st October, 2018
(C.R.No.19)
Advocate Mr.P. D. Gandhi with advocate Ms.Dhanashree Gaikaiwari i/b.
Bilawala and Co. for appellants.
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Advocate Mr.Dharmesh Vyas with advocate Mr.Diwate for respondents.
O R A L J U D G M E N T
Order of eviction dated 12 February 2018 passed by the
Competent Authority in inquiry proceeding no.ME/194/Estt. of 2017
under the Mumbai Municipal Corporation Act,1888 (hereinafter
referred to as the 'MMC Act') in respect of premises i.e. room no.10,
F/3, situate at Deonar Municipal Colony, Govandi, Mumbai43
(hereinafter referred to as the 'inquiry premises') is assailed in the
present appeal.
2 The facts, necessary to decide the present appeal are as
under:
The inquiry premises was allotted to the original allottee Syed Ale
Hasan Syed Erz Husain, exemployee vide Leave and License agreement
dated 20th September,1969. The original allottee being retired from the
services of respondent no.1 and as per Clause 6 of the said Leave and
License agreement and in view of the judgement of the Hon'ble High
Court in Writ Petition No.1797/2009, a quit notice was issued in the
name of original employee and appellant no.1, the occupant to vacate
the inquiry premises. It was duly served upon the appellant. As there
was no reply from the side of the appellant, the inquiry proceeding was
initiated under Section 105B of the MMC Act.
3 A show cause notice dated 24th November,2017 under Sub
Section (1) of Section 105B of MMC Act was issued in the name of
original allottee and the hearing of the said matter was kept on 15th
December,2017. The appellant remained absent during the entire
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enquiry proceeding even though the intimation of the dates were issued
to the appellant from time to time and the same were duly received to
him.
4 The order of eviction came to be passed mainly on the
ground of unauthorized occupancy of the inquiry premises by the
appellants.
5 I have heard ld.counsels Mr.Gandhi for appellants and
Mr.Diwate for respondents. They also filed written submissions.
6 The following points arise for my consideration and my
findings thereon for the reasons stated therefor are as under:
POINTS FINDINGS
1) Whether the order passed
by the Competent Authority
is legal, proper and correct? ..In the negative
2) Whether the principles of
natural justice were followed? ..In the negative
3) What order? ..As per final order
R E A S O N S
7 Point nos.1 and 2: At the outset, the ld.counsel for the
appellants argued mainly on the following two points for setting aside
the impugned order of eviction;
1) The inquiry proceeding was conducted against the dead
person.
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2) Opportunity of hearing was not given to the appellants.
The learned counsel took me through the document at page 67
(Exh.T) in the appeal memo and submitted that on 12th February,2018
when the advocate for appellants accompanied by Mr.Yogesh Gaikwad
the Managing clerk, Mr.Prabhakar Bhosale appeared on behalf of the
appellants and sought to file their vakalatnama as well as written
submissions dated 30th January,2018, the same were refused to be
taken on record and in this way the appellants have been refused the
opportunity of hearing.
8 It is also contended that the order which is actually passed
on 14th February,2018 was shown to have been passed on 12th
February,2018 by making corrections/overwriting in the date in order
to show that on 12th February,2018 the appellants were absent and they
filed their submission belatedly on 14th February,2018. Ld.counsel
requests to set aside the order.
8 On the contrary, ld.counsel Mr.Diwate on behalf of MCGM
while supporting the impugned order of the Competent Authority,
submitted that the appellants in spite of service of notice to them from
time to time kept mum and waited for the order and did not inform
during the proceeding about the death of original allottee. The quit
notice was also issued in the name of the present appellant. In support
of his argument the Ld.counsel relied upon the judgment of the Hon'ble
High Court in the case of Municipal Corporation of Greater Bombay
and Ors. V/s. M. A. Qureshi & Ors. reported in
MANU/MH/0608/1985.
9 I have considered the submissions on behalf of both the
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parties.
10 At the outset, on perusal of the record and proceedings
minutely, it appears that on the prescribed Form A i.e. an order of
eviction at page 33 of the record and proceedings, the date 14th
February,2018 is seen to have been corrected as 12th February,2018.
The back page of the docket also shows that after 12th February,2018
the matter was kept on 14th February,2018 for order. However, again
the date 14th February,2018 have been changed to date 12th
February,2018. The last line of the same docket, in the endorsement to
the effect “A Form issued on 14/2/2018” the date was changed from
14/2/2018 to 12/2/2018.
11 In view of the above, I found substance in the argument of
the ld.advocate for the appellants that the order which was passed on
14th February,2018 is shown to have been passed on 12th February,2018
and no opportunity was given to the appellants on 12th February,2018
for hearing when he was present. On this ground alone the impugned
order needs to be set aside and the proceeding needs to be remanded
back for fresh inquiry by giving reasonable opportunity of hearing to the
appellants.
12 Secondly it is well settled that, there cannot be any suit,
proceeding or appeal against a dead person and any order passed in
such proceeding would be nonest. In the instant case, admittedly, the
inquiry proceeding was carried against the dead person, which can not
be sustainable in law. In such circumstances, the impugned order needs
to be set aside and matter needs to be remanded back to the Competent
Authority for fresh inquiry by adding appellants herein in the said
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inquiry and by giving them reasonable opportunity of hearing. I answer
both the points accordingly and pass the following order:
O R D E R
1) Misc.Appeal No.71/18 is partly allowed.
2) Order passed by the Competent Authority on 12th
February,2018 is hereby set aside.
3) Matter is remanded back to the Competent Authority for
fresh inquiry after adding the present appellants as
occupants.
4) The appellants are directed to remain present before the
Competent Authority on 15th November,2018 at 11.30 a.m.
5) R & P be sent back.
31/10 /2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 31/10/2018
Transcribed on : 01/11/2018
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: 03/11/2018 (At 5.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 31st October,2018
Order signed by P.O. on 3rd November,2018
Order uploaded on 3rd November,2018
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