Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal 77.18
Received on : 12/03/2018
Registered on : 14/03/2018
Decided on : 06/12/2018
Duration : Y M D
00 08 12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.77 of 2018
Ramchandra Jagannath Mane
age 75 years
Occ.business Samartha Krupa
Foot Wear, near Majestic
Amdar Niwas, Opp.Regal
Cinema, Colaba,
Mumbai39 ..Appellant
V/s.
1) Competent Authority
Gr.Mumbai, Constituted under
Bombay Government Premises
(Eviction) Act,1955 having
office at Old Custom House,
4th floor, Fort, Mumbai1
2) Executive Engineer,
Presidency Division, Bandhkam
Bhavan, 2nd floor, Marzban
Road, Fort, Mumbai1 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 06th December, 2018
(C.R.No.19)
Advocate Mr.Suresh Mali for appellant.
Advocate Mr.M. B. Jadhav for respondents.
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O R A L J U D G M E N T
Order passed by the Competent Authority under the
Bombay Government Premises (Eviction) Act,1955 dated 3rd
February,2018 directing eviction of the appellant from shop viz.
Samartha Krupa Foot Wear, near Majestic Amdar Niwas, Opp.Regal
Cinema, Colaba, Mumbai (enquiry premises) is assailed in the present
appeal.
2 The facts in brief necessary to decide the present appeal are
as under:
The appellant states that his fatherJagannath Maruti Mane was
carrying on the business of cobbler since 1945 near Majestic Hotel
abutting to the footpath with the permission of the earlier owner of
Majestic Hotel. Presently, the Majestic Hotel is known as MLA Majestic
Hostel as it was acquired by the Government of Bombay in the year
1954 for the purpose of accommodation to the MLA's. With the
permission of Executive Engineer, Presidency Division vide letter dated
21st November,1974, the father of the appellant erected a cobbler's stall
admeasuring 8 ft. x 4 ft. near the said Majestic Hostel building. The
appellant's father continued to carry on his business of cobbler in the
name of Shri Samartha Krupa Foot Wear.
3 The father of the appellant died on 25th January,2001 and
after his death, the Shops and Establishment license is transferred in the
name of the appellant. He continued the same business from the said
premises.
4 It is the case of the appellant that on 8th October,2001, the
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Executive Engineer, Presidency Division, Mumbai under the purported
Leave and License Agreement allotted him the space admeasuring 24
sq.ft. beneath the said stall on the monthly license fees of Rs.720/ with
effect from 1st October,2001. It was renewed upto 15th January, 2010.
5 The Superintendent MLA Hostel, Mumbai issued eviction
notice dated 15th December,2010 to all the 21 occupants including the
appellant as the entire building was required for repairs and
reconstruction. Being aggrieved by the said notice, the appellant filed a
Civil Suit bearing No.2825/2010 in this court. In view of the statement
made by the Superintendent of MLA Hostel to follow due process of
law, the aforesaid suit came to be withdrawn.
6 The appellant further states that he received a fresh quit
notice dated 11th February,2011 from Executive Engineer, Presidency
Division, Mumbai. The appellant resisted the said notice vide reply
dated 25th February,2011. Thereafter he received a show cause notice
dated 8th April,2011 under Sub Section 2 of Section 4 of the Bombay
Government Premises Eviction Act, 1955 and the same was replied on
25th February,2011.
9 It is the case of the respondent no.2 Executive Engineer,
Presidency Division that as per Clause 18 of the said Leave and License
agreement, the respondent has agreed to surrender the inquiry premises
as and when required by the Government. Accordingly, the Executive
Engineer issued a seven days quit notice dated 11th February,2011 to
the respondent.
10 As the appellant failed to comply with the notice and to
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handover possession, the matter referred to the Competent Authority
under the provisions of the Bombay Government Premises (Eviction)
Act,1955. Accordingly, a show cause notice dated 8th April,2011 was
issued to the appellant which was culminated in the impugned order of
eviction dated 3rd February,2018.
11 I have heard ld.counsels Mr.Mali for appellant and
Mr.Jadhav for respondents. The following points arise for my
consideration and my findings thereon for the reasons therefor are as
under:
POINTS FINDINGS
1 Whether the respondent followed
due process of law in evicting ..In the negative
the appellant?
2 Whether the order pertaining
to payment of rent is just, proper ..In the negative
and legal?
3 Whether the impugned order
warrants interference in appeal? ..In the affirmative
4 What order? ..As per final order
R E A S O N S
13 Point nos.1 to 3: At the outset, undisputedly, the inquiry
premises is in possession of the appellant since 1945 through the owner
of Majestic Hotel Building. Admittedly, in the year 1954 the
Government of Maharashtra acquired the property of Majestic Hotel
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and converted the same into MLA Majestic Hostel. Admittedly, vide
letter dated 21st November,1974 the father of the appellant was granted
permission to erect a temporary stall on the inquiry premises i.e. land
admeasuring 6 x 4 sq.ft. In order to regulate the occupancy of the
appellant, a Leave and License agreement dated 8th October,2001 was
executed between the parties for the monthly rent of Rs.720/ for a
period of three years from 1st October,2001 to 30th September,2004.
Admittedly, it was further extended from 16th January,2008 to 15th
January,2010. Evidently, the respondent was accepting the rent even
after termination of the agreement. The respondent from January,2011
stopped accepting the rent and issued seven days quit notice dated 11th
February, 2011 mentioning the following reasons therein.
1) The period of Leave and License agreement is expired.
2) Arrears of rent for January,2011.
3) The Government has sanctioned the proposal for repairing
of the premises.
14 The respondent being the public authority, has to follow
the due process of law. As per Clause 18 of the aforesaid Leave and
License Agreement, the appellant agreed to surrender the premises to
the Government as and when required by the Government after giving
one month's notice. In Clause 10, the appellant agreed to give and
vacate the possession of the premises in case the Leave and License
agreement is terminated on the basis of breach of any of the conditions
in the said agreement. In Clause 19 of the said agreement, it is
specifically mentioned that in the event of breach of the conditions in
this agreement, it shall be open to the Government to serve the
appellant with a 24 hours notice to remedy the breach and on his
failure to comply with such notice to terminate forthwith the license
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hereby created. The relations between the parties are exclusively
governed by the said Leave and License Agreement.
15 It is the contention of the appellant that the respondent
no.2 stopped accepting the rent since January,2011. As per Clause 19
of the said agreement, it was necessary for the respondent to issue 24
hours notice to remedy the breach of non payment of rent of
January,2011. Without giving an opportunity to remedy the breach, the
respondent has directly issued seven days quit notice to vacate the
premises. Such long standing possession cannot be terminated by seven
days notice for the reason that the last month's rent was not paid. The
documents on record show that in fact there is no arrears of rent.
16 So far as the grounds relating to termination of the
agreement by efflux of time and the need of the premises for
Government purpose i.e. for repairing the Majestic Building is
concerned even then at least 30 days notice was required. The
respondent did not allow to expire 30 days and initiated the eviction
proceedings before the Inquiry Officer on 4th March ,2011.
17 In view of these facts and circumstances, it cannot be said
that the respondent, being the public authority has followed due
process of law in initiating eviction proceedings against the appellant.
The Ld.Competent Authority has not considered these points and passed
the order of eviction. I do not find that the impugned order is legally
correct. Hence, I answer all the points accordingly and pass the
following order:
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O R D E R
1) Misc.Appeal No.77/18 is allowed.
2) Order passed by the Competent Authority dated 3rd
February,2018 is hereby set aside.
3) No order as to costs.
4) R & P be sent back.
06/12/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 06/12/2018
Transcribed on : 06/12/2018
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: 12/12/2018 (At 05.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 6th December, 2018
Order signed by P.O. on 12th December, 2018
Order uploaded on 12th December, 2018
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