Order 1

Order Details: Copy of Judgment
Pdf Text: Received on : 15.03.2018
Registered on : 16.03.2018
Decided on : 13.10.2021
Duration : Y03:M06:D28:
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.82 OF 2018
(CNR NO:MHCC010035902018)
Ashok Shridhar Phodkar
(heir and Legal Representative
of Late Shri Shridahr Phodkar),
adult, Indian Inhabitant
R/at: Room No.8, Chawl No.B/23,
Mithanagar, BMC Colony,
(Goregaon(W), Mumbai400 104. … Appellant
Versus
1. Municipal Corporation of
Greater Mumbai,
a statutory body incorporated
under the Mumbai Municipal
Corporation Act, 1888, having
its office at Mahapalika Marg,
Mumbai400 001.
Through Municipal Commissioner.
2. Smt. Vandana Sawant,
Inquiry Officer, “K/West” Ward,
Municipal Office Building, 4th
Floor, S.V. Road, Andheri(W),
Mumbai400 055. ... Respondents
APPEARANCES:
For Applicant:
— Mr.Anish Karande, Counsel
i/b. Ms.Sapna Rachure, Advocate
For Respondents/MMC:
— Mr.Dharmesh Vyas, Counsel
a/w Mr.Som Sinha & Ms.Ruhi Hajare, Advocate.
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Judgment In Misc.Appeal No.82 of 2018
CORAM: H.H.THE PRINCIPAL JUDGE
S. B. AGRAWAL(C.R.No.19)
DATED: 13th OCTOBER, 2021
JUDGMENT
Order passed by the Estate Officer i.e. Respondent No.2 in
Enquiry No.PS/02/ESTATE of 2018 U/s.105B of the Mumbai Municipal
Corporation Act, 1888 dated 9th February, 2018 directing eviction of the
appellant from the subject premises namely Room No.8, Chawl
No.B/23, Mithanagar, B.M.C. Colony, Goregaon(W), Mumbai400 104
is assailed in the present appeal.
2. Facts material for disposal of this appeal are as under:
It is the case of the appellant that the Municipal Corporation of
Greater Bombay in the year, 1964 acquired lands in suburbs on the
outskirts of Mumbai for embarking upon certain development schemes
in Bombay, as large numbers of persons had to be housed, such as dis
housed persons and project affected persons and accordingly tenements
were constructed thereon with an intention to provide residence to the
public as well Housing Municipal employees. However public was not
interested to accept allotment of these tenements as the land was in
marshy area and in close proximity to retreating salty water. The same
was also not easily accessible for want of infrastructure and transport
facilities.
3. The employees of the Corporation were willing to be
accommodated at such places with an understanding and assurance
that it will be granted them on ownership basis, however these
tenements were given to them on Leave and License basis as employees
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of the Corporation. Several representations were made seeking
conversion of the service license to ownership basis or permanent
tenancy basis and accordingly a proposal was submitted to the
Municipal Corporation by Municipal Commissioner through the
Improvements Committee in the year, 1985 proposing the ground floor
structure to be allotted on ownership to Cooperative Societies of the
occupants under certain conditions. Legal opinion in respect of the
proposal was sought in the year, 1989 and pursuant thereto resolution
No.343 dated 1st September 1989 was passed holding that such
employees of the Corporation who were allotted residential
accommodation on leave and license basis, be converted into ownership
basis subject to finalization of the terms and conditions for such
allotment and the Municipal Commissioner was directed to implement
the said resolution.
4. The terms were sought to be finalized in the year, 1992 and Co
operative societies of the persons similarly situated such as the
appellant were being formed and a letter in their favour was issued by
the Corporation, however on 20th December 2007 the then Municipal
Commissioner made a reference to the State Government through the
Chief Secretary, Urban Development Department for disapproving the
said resolution dated 1st September 1989 and in the year, 20092010
Corporation initiated proceedings U/s.105B of the MMC Act against the
appellant and persons similarly situated in Municipal Colonies.
5. A Writ Petition was filed their against before the Hon'ble High
Court bearing No.1797 of 2009 wherein adinterim relief was granted
in favour of the Petitioners therein on 16th October, 2009. However
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finally on 6th January, 2017 said Writ Petition came to be dismissed and
a Special Leave Petition No.13605 of 2017 was filed before Hon'ble
Supreme Court and it was also dismissed and a notice was issued by the
Corporation seeking possession of the premises which was replied to
and thereafter several meetings were held at highest level in order to
bring about the resolution to the dispute since there were hundreds of
occupants like that of the appellant whose interests were involved in the
matter.
6. However on 20th June, 2017 “quit” notices were issued U/s.105B
of the MMC Act to vacate the tenements within 15 days. On the basis of
the directions of the Hon'ble High Court, contained in para 54 of the
Judgment dated 6th January 2017 this was replied along with
documents on 16th January 2018. Thereafter, the Administrative Officer
of the BMC filed her affidavit of evidence on 23/01/2018 and
immediately the matter was kept on 25/01/2018 for crossexamination
and thereafter on 29/01/2018 appellant filed his affidavit of
examinationinchief and was crossexamined on same date and by the
order impugned the appellant was directed to be evicted.
7. The core contention of the appellant in the present appeal is
manner in which the inquiry proceedings were conducted. It is
contended that the same was done in gross violation of principles of
natural justice in as much as the proceedings were carried out quite
hurriedly and within a short period i.e. on 12.01.2018, 16.01.2018,
23.01.2018, 25.01.2018, 29.01.2018 and 09.02.2018 it was culminated,
there is no opportunity of legal representation granted to the appellant
nor the affidavit filed by the appellant was in proper format and that
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the manner in which the inquiry was conducted, without adhering to
the procedure stipulated in that regard has caused immense prejudice to
the appellant and on this ground alone appeal is sought to be contested
and it is prayed that the order cannot be sustained.
8. Per contra, it has been contended by the Learned Counsel for
the respondents that the corporation is the owner of the land and
structures in question and since because of the employment with the
Corporation the allotment was made during the course of employment
as staff quarters, the employees were required to vacate and hand over
the premises peacefully after the retirement so that the allotment could
be made to the existing employees. No perpetual rights in respect of
such premises are ever created by the Corporation in favour of the
employees. Thus, since the legal license agreement admittedly executed
was for a period of employment, they could not have any vested right in
the premises.
9. Further more, it is submitted that the history narrated by the
appellant hereinbefore regarding the conversion of service tenancy into
ownership basis or for that matter perpetual tenancy was raised by the
appellant and similarly situated persons like the appellant before the
Hon'ble High Court and the Hon'ble High Court negated all the points in
that regard by passing a detailed order dated 06/01/2017. Special
Leave Petition their against also came to be dismissed and it is
thereafter that the quit notices were issued and after affording
opportunity of hearing to both the sides and recording their evidence,
the enquiry proceedings have been fairly concluded and thus, neither
any ground is made out on the merits, nor the appellant has any
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justifiable case that can be made out and only with a view to delay the
proceedings the bogie of violation of principle of natural justice has
been raised when there is nothing even on that count and thus the
appeal is sought to be dismissed.
10. From the aforesaid contention, following points arise for my
consideration and my findings thereon for the reasons therefor are as
under;
POINTS FINDINGS
1. Whether the enquiry before the Enquiry
Officer was conducted by adhering the
principles of natural justice?
In the
Affirmative
2. Whether the appellant is entitled to any
benefit owing to point No.1?
In the
Negative
3. Whether the appellant is in unauthorized
occupation of the premises?
In the
Affirmative
4. Whether the impugned order warrants
interference in appeal?
In the
Negative
5. What order? As per final order
REASONS
Point Nos.1 to 4:
11. At the outset it would be appropriate to mention that even
taking the case of the appellant as it is i.e. in the manner that has been
canvassed before this Court, the induction in the premises was owing to
the employment and leave and license agreement was executed in that
regard for continuing in the premises during the period of employment
which has elapsed long back. Thus, the right of service tenancy having
been come to an end long back, appellant cannot claim any vested right
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in the subject premises ipsofacto. Furthermore, it is contended that
there was resolution of the corporation for converting the premises on
ownership basis but then it is amply clear that this was not concluded in
favour of the appellant since the Municipal Commissioner had made a
reference to the State Government and no final decision was taken in
this regard. In any case this aspect of the matter was raised before the
Hon'ble High Court in Writ Petition No.1797 of 2009 and by passing a
detail order dated 06/01/2017 all these grounds were negated by the
Hon'ble High Court, the said order was challenged before the Hon'ble
Supreme Court and the Special Leave Petition was dismissed. The
question of withholding the dues of the retired employees was dealt
with and finally the Hon'ble High Court in para 54 of the judgment
directed thus:
“54. We, therefore, direct that if such of the petitioners,
who surrender and handover peaceful possession of their
premises (municipal premises in their possession) within
three months from today, the Municipal Corporation shall
not make any further deductions, but release all the
balance sums due and payable with proportionate interest
to such employees. In the event the petitioners do not
handover the premises within this period and continue to
retain them, then, all consequences in law shall follow.
Meaning thereby, the Municipal Corporation can proceed
with its action under section 105B and other provisions of
the MMC Act and recover penal rent/damages/
compensation as well. That can be recovered by attaching
movable and immovable properties of the occupants.”
12. In that view of the matter, on merits when the appellant has
neither raised, nor is in a position to make out any vested right in
respect of the premises in question, it cannot at all be said that the
possession is authorized when the service has come to end long back.
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13. As regards principle of natural justice is concerned, it has been
contended that the proceedings were culminated within a period of one
month. It cannot be lost sight of that the factual matrix of the matter is
that the appellant had no legal right to be made out before Enquiry
Officer. Whatever grounds that could be raised or were sought to be
raised has been exhaustively considered by the Hon'ble High Court
while passing the judgment recorded hereinabove and in that view of
the matter the proceedings were required to be undertaken.
14. However even then show cause notice was issued to the
appellant and thereafter appellant appeared before Enquiry Officer and
sought time to file reply which was granted and then reply was filed.
The Administrative Officer filed his evidence and the matter was
adjourned for crossexamination by the appellant, crossexamination
was carried out by the appellant and thereafter the matter was
adjourned for affidavit of appellant, appellant filed his evidence and
subsequently the order impugned came to be passed. It is now
contended that the Administrative Officer was not sworn and that the
affidavit of the appellant was not in format of affidavit. Now this
aspect, as to in what format the evidence is to be filed, was the choice
of the appellant and cannot make out the ground therefrom after
having chosen to file his evidence in the format of his choice.
15. It is further submitted that there was no legal representation
and opportunity in that regard was not given to the appellant. But there
is no record to show that at any point of time legal representation
before the Enquiry Officer was sought by the appellant, nor at any point
of time it was denied. It is then contended that the proceedings were
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carried out hurriedly but looking at the record before the Enquiry
Officer, it is more apparent that every date after a stage was completed,
time was granted and the appellant was accommodated. Moreover,
there is also nothing on record to show that any longer date was sought
for and it was refused, in that view of the matter the contention in this
regard does not appear to be worthwhile. It is contented that 1520
matter were heard on a single date and similarly evidence in so many
number of matters were recorded in a single date, but then if there is a
group of matters involving similar facts and law it cannot be said that
the same is not possible.
16. Thus, there does not appear to be any violation of principles of
natural justice or any fallacy in the procedure especially in the facts and
circumstances of the present case. Moreover, test of 'real prejudice' as
has been evolved in respect of adherence of principles of natural justice
by the Hon'ble Supreme Court has in any case not been made out. In
paras 9 and 10 of the judgment of the Hon'ble Supreme Court in the
case of A.S.Motors Pvt. Ltd. V/s. Union Of India 2013(10)SCC 114
wherein it has held thus:
“9. In Suresh Koshy George V. University of Kerala3 this
Court while examining the content and the sweep of the
rules approved the view expressed in Russel V. Duke of
Norfolk4 in the following words: (Suresh Koshy Case3, AIR
p. 201, para 78)
“. .... The rules of natural justice are not embodied rules.
The question whether the requirements of natural justice
have been met by the procedure adopted in a given case
must depend to a great extent on the facts and
circumstances of the case in point, the constitution of the
Tribunal and the rules under which it functions.
8. In Russel V. Duke of Norfolk4 , All ER at p.118 D
F, Tucker, L.J, observed:
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'There are, in my view, no words which are of
universal application to every kind of inquiry and every
kind of domestic tribunal. The requirements of natural
justice must depend on the circumstances of the case, the
nature of the inquiry, the rules under which the Tribunal is
acting, the subject matter that is being dealt with, and so
forth. Accordingly, I do not derive much assistance from
the definitions of natural justice which have been from
time to time used, but, whatever standard is adopted, one
essential is that the person concerned should have a
reasonable opportunity of presenting his case'.”
10. In Keshav Mills Co.Ltd. V. Union of India5 this Court
extracted with approval the observations of Lord Reid in
Ridge V. Baldwin6 and said: (Keshav Mills Co. Ltd. Case5,
SCC p. 387, para 8)
“8. .... We do not think it either feasible or even
desirable to lay down any fixed or rigorous yardstick in
this manner. The concept of natural justice cannot be put
into a straitjacket. It is futile, therefore, to look for
definitions or standards of natural justice from various
decisions and then try to apply them to the facts of any
given case. The only essential point that has to be kept in
mind in all cases is that the person concerned should have
a reasonable opportunity of presenting his case and that
the administrative authority concerned should act fairly,
impartially and reasonably. Where administrative officers
are concerned, the duty is not so much to act judicially as
to act fairly [See, for instance, the observations of Lord
Parker in H.K.(An infant), In re7.]. It is only means that
such measure of natural justice should be applied as was
described by Lord Reid in Ridge V. Baldwin6 case as
'insusceptible of exact definition but what a reasonable
man would regard as a fair procedure in particular
circumstances'. However, even the application of the
concept of fair play requires real flexibility. Everything will
depend on the actual facts and circumstances of a case. As
Tucker, L.J., observed in Russel V. Duke of Norfolk4:(ALL
ER p.118 E)
'The requirements of natural justice must depend on
the circumstances of the case, the nature of the inquiry, the
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rules under which the tribunal is acting, the subjectmatter
that is being dealt with, and so forth'”
17. The Hon'ble Supreme Court in a case of The Chairman, Board
of Mining Examination and Chief Inspector of Mines and Another
V/s. Ramjee reported in 1977(2) SCC 256 has succinctly summarized
natural justice as follows:
“Natural justice is no unruly horse, no lurking land mine,
nor a judicial cureall. If fairness is shown by the decision
maker to the man proceeded against, the form, features and
the fundamentals of such essential processual propriety
being conditioned by the facts and circumstances of each
situation, no breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference to
the administrative realities and other factors of a given case,
can be exasperating. We can neither be financial nor
fanatical but should be flexible yet firm in this jurisdiction.
NO man shall be hit below the belt – that is the conscience of
the matter.”
18. Thus taking holistic view of what has been discussed
hereinabove, I do not think that the impugned order warrants any
interference in appeal and as such I answer the points accordingly and I
pass following order.
O R D E R
Misc.Appeal No.82 of 2018 stands dismissed.
Sd/
13/10/2021 (S. B. AGRAWAL)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 13/10/2021
Transcribed on : 13/10/2021
Signed by HHJ on : 13/10/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/10/2021 11.35 a.m. B.R.HATEKAR S.G.
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI S.B.AGRAWAL (CR No.19)
Date of Pronouncement of Judgment/Order. 13/10/2021
Judgment/order signed by P.O on 13/10/2021
Judgment/order uploaded on 14/10/2021
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