Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010038142019 Received on :: 04.04.2019
Registered on :: 04.04.2019
Decided on :: 14.08.2019
Duration :: Y-04:M-04:D-10:
Exhibit ::
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO. 111 OF 2019
Smt. Pratibha Sanjay Lavangare,
Age : 41 years,
C.A. of Smt.Leela Narayan Lavangare,
Room No.1303, Gate No.6, Malvani
Municipal Colony, Malad(W),
Mumbai – 400 095. ... Appellant
Versus
1. Municipal Corporation of Gr.Mumbai
(Through the Municipal
Commissioner), Mahanagar Palika
Road, Opposite CST Station, Fort,
Mumbai – 400 001.
2. The Rent Collector,
Mr.Dilip Parab (Rent Supervisor P to R
Wards) Office at P/North-Ward
Malad(W), Mumbai- 400 064.
3. The Enquiry Officer,
Smt.Vandana Savant,
Having office at BMC building, Azad
Road, Andheri East,
Mumbai – 400 069. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI. A.SUBRAMANIAM(C.R.No.19)
DATED : 14th AUGUST, 2023
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Ld.Adv. Aloukik Pai a/w Adv.Maansi Gupta for appellants.
Ld.Counsel Mr.Dharmesh Vyas a/w Ld.Adv. Som Sinha a/w Adv.Sunil
Khandagale for respondents/BMC.
ORAL JUDGMENT
1. By this appeal, the appellant is challenging the order dated
29.03.2019 passed by the Enquiry Officer of closure of evidence
because of delay tactics and hence present appeal.
2. By this appeal, the appellant is challenging the impugned order
dated 29.03.2019 passed by the learned Competent Authority in
proceedings initiated U/s.105B of the MMC Act rejecting the
application of the applicant for production of documents by the
Corporation and or examining their witnesses to prove the said
documents.
3. The facts of the case pertain to the proceedings relating to the
eviction proceedings against the alleged erstwhile employees on
determination of his services on account of retirement/
termination. Pending these proceedings, number of applications
came to be preferred alleging that rules U/s.105H are not framed
and in absence thereof proceedings cannot be go ahead. It is
further pointed out that the present forum has been given
extensive powers and there is arbitrary power vested and
discretion violating principles of natural justice. It is further
contended that there is bias against Inquiry Officer as the
Municipal Commissioner is the adjudicatory authority and has
taken contrary stand. Competent Authority is delegate of
Municipal Commissioner and thus there is bias of nature of
institutional bias and hence violation of proceedings. There is
novation because of conduct and subsequent events, and same
has been acted upon, that the possession is protected invoking
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U/s.53A of Transfer of Property Act, namely part performance
and that has to be considered. Various detailed issues or technical
issues are involved which the Competent Authority will not be
able to decide and hence appropriate Civil Court should decide
the said dispute. There are different circumstances which have
arisen and considering the same these aspects have to be
considered by the Competent Authority. Considering all the
innovative complex issues involved, the proceedings should not
be proceeded by the Competent Authority. There is issue as to the
powers of the Commissioners and powers enforcing the
resolution which will result in bias and effect of binding nature of
Municipal Commissioner requiring to be decided which cannot be
done by the Competent Authority who is delegate of the
Municipal Commissioner. The same order has been copied. In
such circumstances, the proceedings should be stayed. The
documents are to be relied by the present appellants in
proceedings considering their defence of deemed agreement and
acceptance by the MCGM for providing new houses. The said
documents were part of various proceedings and were never
disputed, but are presently being withheld malafide by the
Corporation in the present proceedings. The Corporation in fact
is not even accepting their own documents on ground that it
relates to some other department then to what the witness
belongs to. This is pure malafide attempt of the Corporation.
The aspect of limitation under the provisions of appeal cannot be
the sole ground to consider the jurisdiction, limitation and right
of appeal are two separate issues and cannot be merged together.
Considering the same, the appeal be allowed.
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4. The claims of the appellant is vehemently opposed by the
respondents contending that the said applications are nothing but
eyewash and to protract and prolong the proceedings in various
proceedings. The appeals itself are not maintainable as they are
against interlocutory procedural order passed by the Competent
Authority. It has been held that the appellants have no right to
continue occupation considering the same they are only buying
time to protract the proceedings. There is no force in the
contentions raised. There is no agreement and hence Section
53A of T.P. Act is not applicable, all legal contentions if any, can
competently be decided by the concerned Competent Authority.
The concerned Competent Authority is in fact well-versed in
aspect relating to municipal properties as well as the allotment of
houses and quarters to the municipal employees and other
relating aspects to the municipal properties. Nothing complex
aspects arises, which the Competent Authority cannot decide. In
such circumstances, the entire basis of the claim of the appellants
are not maintainable. Considering the same appeals be dismissed.
5. Perused the appeal, record filed, considered the submissions,
following points arise for my consideration and I answer the same
as under for the reasons stated hereinafter;
Sr.
Nos
POINTS FINDINGS
1 Whether the appeals are
maintainable?
:: In the
negative
2 Whether the impugned orders
require an interference?
:: Does not arise and
if arises in the
Negative
3 What order? :: As per final order
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REASONS
As to point No.1:
6. I had an occasion to consider the maintainability of the appeal in
a group matter before and I had held that the appeals against
interlocutory orders is not maintainable. The learned counsel for
the appellants tried to point out that the said order cannot be
justified. It is contended that the said point of jurisdiction is solely
based on aspect of limitation.
7. At the outset, it is necessary to point out I need not justify my
order passed earlier. It would suffice to say that Section 105F of
the MMC Act deals with appeal of “against every order” U/s.105B
and Section 105C of the MMC Act .
8. The aspect of “every order” as contemplated Letter Patents,
Maharashtra Rent Control Act and other provisions of the Act
have been considered to be restrictive and not all inclusive. The
aspect of “every order” was stressed upon by considering the
judgment of Shah Babulal Khimji V/s. Jayaben D. Kania and Anr
(1981)4 Supreme Court Cases 8 which relates to Letters Patent
Appeals, Bhartiben Shah V/s. Gracy Thomas and Others W.P.
No.9562 of 2010 (2013(1)CTC 833 which relates to the powers
of revision under the Maharashtra Rent Control Act, Central Bank
of India Ltd. V/s. Gokal Chand (1967)1 SCR 310 which relates to
the powers of revision under the Delhi Rent Control Act. All the
three realms of Jurisdiction, there is no qualification and hence
required interpretation. Even in those cases the Courts have taken
a restrictive view and not all inclusive view relating to the term of
“Every order”
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9. Even if one considers the judgment cited by the learned counsel
for the appellant in Central Bank of India, the Hon’ble Supreme
Court of India has held that interlocutory orders like summoning
of witnesses, discovery, production and inspection of documents,
issue of commission for examination of witnesses, inspection of
premises fixing a date of hearing and the admissibility of a
document or the relevancy of a question and steps taken towards
the final adjudication and for assisting the parties in the
prosecution for their case in the pending proceeding, they
regulate the procedure only and do not affect any right or liability
of the parties. The said judgment is squarely applicable to the
facts of the present case wherein the present appellants want to
examine witnesses and call for production and admission of
documents. Thus, Central Bank’s case is squarely applicable and
it is clear that every order contemplate cannot include such
interlocutory order. In such circumstances, I hold that Section
105F of the MMC Act does not contemplate appeal against such
orders.
10. By relying upon B.K.Educational Services Private Limited V/s.
Parag Gupta and Associates (2019)11 Supreme Court Cases 633,
NNR Global Logistics (Shanghai) Co.Ltd. V/s. Argus Global
Logistics Pvt.Ltd. 2012 SCC OnLine Del 5181, A.S.K Krishnappa
Chettiar & Ors. V/s. S.V.V. Somiah @ Navniappa Chettiar &
Another (1964)2 SCR 241 and Santoshkumar Shivgonda Patil &
Ors V/s. Balasaheb Tukaram Shevale and Others (2009)9
Supreme Court Cases 352, it is tried to be pointed out that
limitation and appeal are in two different fields and merely
because period of limitation is not stated will not imply that
appeal is not maintainable. I believe that the entire concept and
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the order of limitation and appeal is misconceived. The aspect of
order contemplated U/s.105F of the MMC Act is considered by
reading provisions of Section 105B of the MMC Act also and
what orders are contemplated U/s.105B of the MMC Act have
been considered. The order of protection or the order of sale of
property clearly contemplates steps and notices to be taken as
contemplated therein. The provisions of Chapter-V of the MMC
Act are code in itself and if the entire scope is considered, it is
seen that orders which are appealable which are not each and
every order, but orders as laid down in Clause-II of Section 105F
of the said Act. Considering these circumstances, I hold that the
limitation and appeals are not related in that sense, but to only to
understand the meaning thereof.
11. Useful reference can be considered to the provisions of Section
105B of the MMC Act , the sub-Section-1 contemplates categories
of persons that can be asked to vacate and said vacation is by
serving notice, and ordering the person in occupation to vacate.
Sub-section-2 contemplates that before making order, a notice has
to be issued specifying grounds having shown cause considering
extension and earth-fair enquiry. Thus, only order, contemplated
is order of eviction or not, after holding an enquiry. In such
circumstances, the provisions of Section 105(C) of MMC Act are
nearly similar. Section 105C(4) contemplates that order of
monetary claims will be made after issuance of notice. Thus, if
one read section 105B, Section 105C and Section 105F
collectively it is apparent that only the final order passed on the
enquiry by the said Competent Authority is appealable. Thus, the
contention of the appellants that every order has contemplated
U/s.105F implies all orders is misconceived.
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12. While interpreting the provisions certainly grammatical meaning
has to be considered as a whole provision and not taking out a
couple of words . The purport of the provisions is also required to
be considered. This is more so in this case as the provisions are
added as a subsequent amendment. The purport of including
Chapter-V-A as has been considered in the judgment of the
Hon’ble Supreme Court of India Maganlal Chhaganlal (P) Ltd.
V/s. Municipal Corporation of Greater Bombay and Others
(1974)2 Supreme Court Cases 402 is mainly of expeditious
disposal of such kind of proceedings. If the interpretation as
contemplated by the appellants is considered each and every
word and sentence can be termed as an order and hence
appealable under the provisions of the Act. This would defeat the
entire purpose and scope of specially enacting Chapter-V-A to the
Act and providing of speedy efficacious in-house mechanism and
adjudication of such dispute. Even while considering institutional
bias the safeguard of judicial scrutiny in appeal, post final order
has been considered as an adequate safeguard and not
intermittent appeal and supervision.
13. Thus, considering the provisions in any circumstances and in
any manner whatsoever, there is no order passed under the
provisions of Section 105B and Section 105C of MMC Act and so
also Section 105F of MMC Act does not contemplate any other
orders than the final orders. In view of these circumstances, the
present application and order being interim order, same is not
maintainable. Thus, considering the provisions of the Act, present
appeal is not maintainable. Hence, I answer the point no.1
accordingly.
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As to Point No.2:
14. In view of the finding to point no.1, I would be certainly entitled
to not proceed with the appeal’s finding and dispose off the
appeal as not maintainable. It is well settled principle ,that when
a matter is decided on maintainability, to avoid further remand
and delay, the court should deal with all the issues raised, so that
the matter in whole can be decided by the superior Court. To
attain finality of the issues raised and avoid further delay in the
proceedings, I proceed to consider the appeal also on merits, so
much so as to adjudicate all issues raised before me.
15. It is necessary to point out that in view of the judgment of the
Hon’ble High Court in the case of Vivek Gawade V/s. Municipal
Corporation of Greater Mumbai in Writ Petition NO.5983 of 2022
decided on 19th July 2022, the contention of non-framing of rules
U/s.105H have been given up.
16. Lengthy arguments were advanced with regard to Section 53A
of T.P. Act, new facts post judgment in case of More Jeevan
Yashwant, novation, maintainability of such defence, institutional
bias, contract, Enforceability of Resolution of Council, and other
aspects. At the outset, I shall not deal with these aspects in detail
because I believe they are to be dealt with by the Competent
Authority or the Court (if they so arise) as the case may be
subject to finding hereinafter.
17. The contentions do not require consideration for a simple reason
that the Hon’ble High Court of Bombay, in similar kind of
litigation , raising same kind of issues, in the judgment of Vivek
Gawade has directed the concerned Competent Authority itself
to decide these contentions. The Hon’ble High Court of Bombay
has directed that issues of….
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(a) Premises being staff quarters,
(b) Premises being in unauthorized occupation on determination
of services, limitation, jurisdiction in view of provisions of Section
53A of Transfer of Property Act,
(c) defence of Section 53A of Transfer of Property Act,
(d) aspect of institutional bias and stand taken by the Municipal
Commissioner and its delegate,
(e) issue of State Government being proper party,
(f) summary proceedings maintainability
are all been left to be considered only by the concerned
Competent Authority. Thus, the Hon’ble High Court of Bombay
has considered and upheld that the Competent Authority is fit to
decide of the contentions raised. The same facts and
circumstances being in this case, the said judgment is binding this
Court. In view of these contentions of stay of proceedings or
competent authority not empowered to continue with the
proceedings for the contentions raised in the application do not
survive. The Hon’ble High Court of Bombay itself has considered
the competent authority fit to consider all these aspects. Thus,
judgment of Mahadev Nathuji Patil V/s.Surjabai Khushalchand
Lakkad and others 1994 Mh.L.J. 1145, Shrimant Shamrao
Suryavanshi and another V/s. Pralhad Bhairoba Suryavanshi
(Dead) by Lrs. And others (2002)3 Supreme Court Cases 676 and
Kashiram s/o Wadgu Mundale and another V/s. Mansaram s/o
Tulshiram Mundale (since deceased) through his L.Rs.
Smt.Manjulabai wd/o Mansaram Mundale and others 2016(3)
Mh.L.J. 713 have no bearing in presence facts and circumstances
as said issue is not required to be decided by this Court. Needless
to say that it is finally adjudicated that the Competent Authority
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under provisions of Chapter-V-A is competent to decide all these
aspects. More so the findings of the said Competent Authority
would be appealable, before a senior Judge of the District Judge
cadre and has held in the case of Maganlal Chhaganlal (P) Ltd.
the institutional bias, gets ruled out, as a result thereof and so
also the issues can be examined by an experienced Judge.
18. In this case the appellants want to bring on record the
documents which relate to the entire process of consideration of
such providing new accommodation to the retired employees.
The entire process has taken place for number of years in fact it
appears to have started somewhere in 1988 and continues till
date. Most of these documents have been part of number of
earlier proceedings and have been relied upon by the parties.
Merely because they appear to be typed for clarity or are
unsigned. (the provisions of photo copies was not available then).
It is really ironical that the documents of the Corporation, official
correspondence received by the Corporation, correspondence
making the Corporation by various societies, internal
correspondence relating to the said aspect etc. are not accepted
by the Corporation. The witness for the Corporation merely states
that it does not pertains to her department. I really feel that the
Corporation should take active part and make proper statement
or file documents on record or permit the appellant to lead
secondary evidence or draw adverse inference against the
respondents . Technically an opportunity during the appeal was
also given without prejudice to the rights of the parties and the
Corporation has refused to either admit or deny the documents ,
leaving it to the sweet will of enquiry officer. This hyper technical
approach does not subserve the ends of justice especially in the
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matters as this nature, considering the same, I am of the view
that the impugned order would require interference, considering
the broad principles of natural justice required to be followed by
the Competent Authority and the nature of documents and
witnesses so proposed. Thus, although the appeal is not
maintainable, I hold that the order would require interference if
such jurisdiction existed in this Court. Hence, I answer the point
no.2 as does not survive and if arises in the affirmative. Hence, I
pass the following order.
O R D E R
1. Misc.Appeal No.111 of 2019 is dismissed as not maintainable.
2. The Competent Authority to proceed with the proceedings after
four weeks after receipt of this order.
3. Inform the concerned Competent Authority.
14/08/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on
Transcribed on
Signed by HHJ on
:
:
:
14/08/2023
16/09/2023
18/09/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20/09/2023 5.00p.m. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 14.08.2023
Judgment/order signed by P.O on 18.09.2023
Judgment/order uploaded on 20.09.2023
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