Interim Order 1

Order Details: Other
Pdf Text: Order for granting adinterim stay .. 1 .. Appeal No.118/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER ON REQUEST FOR GRANTING ADINTERIM STAY
AS REQUESTED IN THE STAY APPLICATION EXHIBIT2
IN
APPEAL 118 OF 2019
Sanjay Kumar Mangala.
Shop No.42, Chhatrapati Shivaji Maharaj Terminus,
Subway, Mumbai – 400 001. ...Appellant.
V/s.
The Municipal Corporation of Greater Mumbai.
Having offices at Municipal Head Offices,
Mahapalika Bhavan,
Mahapalika Marg, Fort,
Mumbai – 400 001. ...Respondent.
Appearances:
Learned Adv. Mr. G.V. Murti alongwith Learned Adv. Muhun I/b MSR
Associates for appellant.
Learned Adv. Mr. A.V. Diwate for respondent/MMC.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04).
DATED : 15th April, 2019.
: ORAL ORDER :
1. The appellant has requested in this application to grant the ad
interim stay to the impugned order dated 15.03.2019 and notice dated
15.03.2019 passed and issued by the Enquiry Officer under section
105(B) of the Mumbai Municipal Corporation Act (MMC Act), pending
instant stay application. The appellant has also requested to grant ad
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interim relief pending the stay application as prayed in prayer clause(c),
(d) and (e), which are in respect of direction to the respondent
Municipal Corporation to furnish amount of rent pertaining to the
appellant pertaining to the appellant and the subject premises and to
direct the respondent to accept rent from the appellant in respect of the
subject premises and in alternative to allow the appellant to deposit the
rent/compensation charges of the subject premises for the period
commencing from April 2017 till May 2019, subject to result of the
appeal. Mainly, the adinterim relief is sought for is in respect of stay to
the impugned order and notices, described above.
2. The appeal is filed to challenge the legality of the notice dated
17.10.2017(form “B”), order dated 15.03.2019 and notice dated
15.03.2019(form “A”) issued and passed by the Enquiry Officer under
section 105(B) of MMC Act. The learned Advocate of the appellant has
submitted that the appellant has been in occupation of the subject
premises as per the agreement executed by the Municipal Corporation
in favour of the appellant. By the said agreement, the Municipal
Corporation has given the subject premises to the appellant for a period
of 10 years from 25.09.2001. Thereafter, the appellant has made
representation to the Municipal Corporation for renovation of the
agreement and the matter was pending. However, all of sudden, the
Municipal Corporation issued notice to the appellant to hand over
vacant and peaceful possession of the subject premises within 30 days.
That notice was challenged by the appellant before the Hon'ble High
Court by filing Writ Petition and by order dated 27.10.2016, the Hon'ble
Bombay High Court has quashed and set aside the said notice with
observation that the said order of the Hon'ble Bombay High Court shall
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not preclude the Corporation from evicting the appellant from the
subject premises by following due process of law. Thereafter, the
appellant submits that the impugned notice dated 17.10.2017(form“B”)
was issued informing the appellant that the appellant's occupation over
the subject premises is unauthorised and the premises was required to
the corporation in public interest to avoid over crowd and congestion in
subway. That notice was issued under subsection (2) of section 105(B)
of MMC Act and thereafter, the appellant filed reply to that notice and
the enquiry was held by the Enquiry Officer under section 105(B) of
MMC Act. It appears that both the parties were given opportunities to
adduce their evidences and after hearing the arguments of both the
parties, the impugned order has been passed by the Enquiry Officer
under subsection (1) of section 105(B) of MMC Act, directing appellant
to vacate the subject premises within one month from the date of
service of notice and, thereafter, the notice dated 15.03.2019 was
issued by the Enquiry Officer directing the appellant to give vacant
possession of the subject premises to the Municipal Corporation, as per
the aforesaid order dated 15.03.2019.
The learned Advocate of the appellant has invited my attention to
the grounds raised in the appeal memo as well as to the documents
produced by him in the form of compilation. He has submitted that
after expiry of the agreement period, the representations of the
appellant were pending and the officials of the Municipal Corporation
had been making proposals for renewing the agreement. After about 5
to 6 years of expiry of the license period, the Enquiry Officer has taken
the impugned action and such action is not legal. He has submitted that
there is no acceptable evidence in support of contention that because of
the occupation of the subject premises by the appellant, there is
congestion or over crowding on the subway. It is submitted that the
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appellant is ready to pay any due rent or compensation, if found liable
to be paid by the appellant. He has submitted that if adinterim relief is
not granted, the appellant would have to loose possession of the subject
premises and object of filing of the appeal would be frustrated.
Therefore, he has submitted that adinterim stay and adinterim relief as
above may be granted.
3. The learned Advocate of the respondent has submitted that
admittedly as per the agreement, under which the appellant was
occupying the suit premises, the appellant was authorised to occupy the
premises, for a period of 10 years from 25.09.2001. The said period has
expired long back and thereafter, the period has not been renewed.
Therefore, it is submitted that occupation of the appellant is
unauthorised within the meaning of clause(d) of section 105(A) of
MMC Act. Clause(d) of section 105(A) of MMC Act reads as under :
“unauthorised occupation in relation to any corporation premises
means the occupation by any person of corporation premises
without authority for such occupation; and includes the
continuance in occupation by any person of the premises after the
authority under which he was allowed to occupy the premises has
expired, or has been duly determined”.
It is submitted by the learned Advocate of the respondent that the
notice dated 29.04.2017 issued by the Municipal Corporation to the
appellant informing that the corporation is not inclined to renew the
license and thus, occupation of appellant is unauthorised and that the
subject premises is required to the Municipal Corporation for public
purpose and, therefore, the occupation of the appellant is unauthorised
and, therefore, the appellant should give vacant possession of the
premises. That notice has not been challenged in any Court of law by
the appellant before the enquiry was started under section 105(B) of
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the MMC Act. Therefore, it is submitted that after this notice also, the
occupation of the appellant is unauthorised and the enquiry officer has
rightly exercised the powers under section 105(B) of the MMC Act to
direct the appellant to vacate the premises. The learned Advocate of the
respondent has submitted that as the premises is required for public
purpose, no interim stay to the order of eviction be granted.
4. I have examined the submissions of the parties. I have also gone
through the impugned order and the grounds raised in the appeal
memo as well as in the stay application. On perusal of the impugned
order, I find that the enquiry officer has based his findings, that the
occupation of the appellant over the subject premises is unauthorised,
on the fact that after expiry of the leave and license agreement period,
it is not renewed. It may be noted that as per the agreement dated
25.09.2001, the subject premises was given in occupation of the
appellant on leave and license for a period of 10 years. Admittedly, this
period has expired. Further admittedly, the said leave and license
agreement has not been renewed by competent authority of Municipal
Corporation. Merely, because some officials have made proposal for
renewal of the agreement and the representations of the appellant were
pending for long period, it cannot be said that the leave and license was
renewed and the appellant's occupation over the subject premises, after
expiry of the leave and license period, is authorised. In this regard, I
have noted the provisions of clause (d) of section 105(A) of MMC Act
herein earlier. In this view of the matter, I do not find that prima facie,
the impugned order can be found fault with in respect of eviction of the
appellant. Taking into consideration, the case of the Municipal
Corporation that the subject premises is required for a public purpose in
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respect of avoiding over crowding and congestion in subway near the
public place i.e. Chhatrapati Shivaji Maharaj Terminus (CSMT), I find it
difficult to grant adinterim relief in respect of the impugned order
regarding eviction of the appellant from the suit premises. In respect of
other adinterim reliefs, I find that there is no urgency to grant the same
at this stage, when respondents are yet to file their reply to stay
application.
For all these reasons, adinterim stay and adinterim relief as
requested in the stay application (exhibit2) is refused.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 15.04.2019. City Civil Court, Gr. Mumbai
Dictated on : 15.04.2019.
Transcribed on : 15.04.2019.
Signed on : 15.04.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16.04.2019, at 01.58 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 15.04.2019.
Judgment/order signed by P.O. on 15.04.2019.
Judgment/order uploaded on 16.04.2019.
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