Final Order 1

Order Details: Copy of Judgment
Pdf Text: Received on : 28.07.2020
Registered on : 14.01.2021
Decided on : 13.10.2021
Duration : Y01:M02:D15:
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC.APPEAL NO.3 OF 2021
(CNR NO:MHCC010036202020)
1. The State of Maharashtra,
Through the Principal Secretary,
P.W.D. Department, Government
of Maharashtra, Mantralaya, having
its office at Mantralaya,
Mumbai400 032.
2. The Executive Engineer,
North Mumbai Division,
P.W.D., Andheri(West),
Having office at P.W.D. Dept.
Andhri(W), Mumbai400 058. ... Appellants
Versus
1. Mr.Ashok Krishna Nikam,
Aged: 62 yeaers, Occ.:Business,
Proprietor of
M/s.Ahok Newspaper Agency
Indian Inhabitant, residing at
Plot No.26, Near 315, Bus Depots,
Government Colony, Bandra(East),
Mumbai 400 051.
2. The Competent Authority
for Gr.Bombay, having his officers
404, 4th Floor, New D.D.Building,
Old Custom House, Fort,
Mumbai400 032. ... Respondents
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Judgment In Misc.Appeal No.3 of 2021
APPEARANCES:
For Appellants:
— Mr.M.B.Jhadhav, Advocate
For Respondent No.1:
— Mr.Sunil Lahane, Counsel
a/w Mr.Pramod Londhe & Rachana Karade, Advocates
i/b The Juris Partners.
CORAM: H.H.THE PRINCIPAL JUDGE
S. B. AGRAWAL(C.R.No.19)
DATED: 13th OCTOBER, 2021
ORAL JUDGMENT
The State of Maharashtra has preferred this appeal U/s.7 of the
Bombay Government Premises (Eviction) Act, 1955 against the order in
Eviction Case No.25702 of 2019 dated 26th December 2019 passed by
the Competent Authority dismissing their application for eviction of
Respondent No.1 from the subject premises namely Plot No.26, Near
315 Bus Depot, Government Colony, Bandra(East), Mumbai400 051.
2. Facts material for disposal of this appeal are as under:
It is the case of the appellants before Competent Authority that
150 sq.ft. open land was allotted to the Respondent No.1 and leased for
a period of five years and accordingly agreement was executed on 26th
August 1980 which expired on 28th May 1985, although, the allotment
was vide letter dated 24th February 1965 and it was for News Papers
Stall in the name of the mother of Respondent No.1, but subsequently it
was issued in the name of Respondent No.1 in the year 1976.
Subsequently, Respondent No.1 joined service of the appellants in 1977
as peon and as such would not have been entitled to continue to retain
the commercial premises but it was continued by the Respondent no.1
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and finally he retired from the service on 30/11/2015. Thus, eviction
proceedings were initiated by the appellants before the Competent
Authority principally on the ground of expiry of lease period, change of
user since apart from News Papers Agency, Respondent no.1 has started
to run a Veg and NonVeg Restaurant at the said premises and also
because it is alleged that although 150 sq.ft area was allotted to the
Respondent no.1, he encroached upon adjoining land about 1800 sq.t.
for the said purpose.
3. Considering all these aspects, inquiry was held by the
respondent no.2 wherein principal contention of the respondent no.1
was that he is not in unauthorized occupation of the premises and that
even earlier proceedings for eviction were either stopped or rejected
and as such on the said aspect of the matter the present proceedings on
the same ground was not maintainable. After hearing the parties, the
eviction application of the government is rejected by the Competent
Authority.
4. During the pendency of this appeal, respondent no.1 has filed an
application at Exh.2 seeking remand of the matter to the Competent
Authority for recording evidence. This application was directed to be
heard along with appeal.
5. From the aforesaid contention, following points arise for my
consideration and my findings thereon for the reasons therefor are as
under;
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POINTS FINDINGS
1. Whether the impugned order passed by
the Competent Authority is sustainable?
In the
Negative
2. Whether the parties are entitled to lead
evidence before the Competent
Authority?
In the
Affirmative
3. Whether the matter deserves to be
remanded back for the said purpose?
In the
Affirmative
4. What order? As per final order
REASONS
Point Nos.1 to 3:
6. At the outset, if the impugned order is perused, it is to be noted
that the main question which is required to be considered in such
proceedings is whether the occupation is unauthorized occupation of
the premises, however the impugned order does not frame any point to
that regard and nor there is any reasoning to that effect. In the present
case admittedly the lease had expired long time back and in addition
thereto grounds were raised and the factual matrix thereof have not
been disputed by the respondent no.1, in the sense that the area
covered in the lease agreement is much lesser than what is in
occupation of the respondent as on today.
7. The only contention is that he was permitted user of additional
area without there being any further lease agreement in that regard.
The fact that the user was changed, has also not been disputed. It is to
be noted that immediately after allotment of the premises, the
respondent no.1 got into government service, continued with the
government service along with continuing the business activity on the
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government premises, and retired from government service and
thereafter fully continued with the commercial activity.
8. Although these were the facts emanating from the record, merely
by observing that the subsequent proceedings would not be
maintainable in view of bar of res judicata, without examining as to
whether the same principle would be applicable to the present
proceedings as also in the facts and circumstances of the present case
also corelating it to the grounds earlier and the one's sought to be
made out subsequently and whether there was any change in
circumstances. All these aspects are required to be taken into
consideration after looking at the evidence that ought to have been
placed on record.
9. In that view of the matter the contention of the respondent no.1
that both the sides ought to be allowed to lead their evidence, cannot be
said to be without any substance and as such impugned order cannot be
sustained and the matter deserves to be remanded back for giving
opportunity for hearing of both the sides as also for leading evidence
and thereafter the Competent Authority shall frame the necessary points
for determination that arise between the parties and pass a reasoned
order in the light of the aforesaid directions. As such I answer the points
accordingly and pass following order.
O R D E R
1. Misc.Appeal No.3 of 2021 is partly allowed
2. The impugned order passed in Eviction Case No.25702 of 2019
dated 26th December 2019 is set aside.
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3. The matter is remanded back to the Competent Authority and
Competent Authority shall pass appropriate order in the light of
directions given hereinabove by the end of December 2021.
4. Parties to appear before the Estate Officer on 21st October, 2021.
Sd/
13/10/2021 (S. B. AGRAWAL)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
sDictated 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
13/10/2021 15.30 p.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 13/10/2021
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