Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.109.18
Received on : 31/03/2018
Registered on : 07/04/2018
Decided on : 09/09/2019
Duration : Y M D
01 05 02
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.109 of 2018
Medical Officer Incharge,
KUTUMB SUDHAR KENDRA,
Unit of Family Planning Association
of India, a nongovernmental
organization having its address
at inside Agripada Railway
Colony, Mumbai Central,
Mumbai ..Appellant
V/s.
The Union of India,
acting through The Western
Railway Administration, Section
Engineer, (Works1), Mumbai
Central, Mumbai ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 9th September,2019
(C.R.No.19)
Advocate Mr.Nikhil Rajeshirke for appellant.
Advocate Mr.Sanjay Bhosale for respondent.
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2 Misc.app.109.18
O R A L J U D G M E N T
Being aggrieved by the order of eviction issued by Estate
Officer, Mumbai Central, Western Railway under sub Section (1) of Section
5 of the Public Premises (Eviction of Unauthorised Occupants) Act,1971
(“the P.P. Act” for short) on 21st February,2018 in respect of KUTUMB
SUDHAR KENDRA situate at inside Agripada Railway Colony, Mumbai
Central ('schedule premises” for short), the appellant has preferred the
present appeal.
2 Brief facts: The Family Planning Association of India (FPAI) is
a nongovernmental organisation doing work in the field of family
planning and medical health of general public and is mainly concerned
with the health issues of poor and needy people.
3 In the year 1952 having regard to its objective, the appellant
approached the respondent with a request to allot the schedule premises
and accordingly, respondent through its Western Railway Woman's Welfare
Organisation alloted the schedule premises in the year 1952 and since then
the appellant is in use, occupation and possession of the same. Appellant is
also paying the rent to the respondent regularly and so also electricity bills.
4 The appellant alleges that to its shock and surprise it received
notice dated 5th May,2015 asking the appellant to show cause as to why
eviction proceedings should not be instituted against it, it being an
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unauthorised occupant. The notice was duly replied. Inspite of that the
respondent initiated eviction proceedings and after hearing both the
parties, passed the order dated 21st February,2018. Hence, this appeal.
5 The respondent, on the other hand (Exh.4 colly.) contended
that the land admeasuring 112.98 sq. mtrs. was handed over to Western
Railway Women's Welfare Organization in 1952 by the Western Railway
Administration. Western Railway Women's Welfare Organization is an
organization formed for the welfare of wives of Railway Officers and staff
by the Railway employee's wives. It is not a branch/department of
railways/ Union of India and are a private welfare organization. According
to it, it seems that Western Railway Women's Welfare Organization
inducted and/or allowed to function the appellant on or about 1972
without permission of the Competent Authority and they have no privity of
contract with respondent.
6 It is next contended that Western Railway Women's Welfare
Organization surrendered the railway premises to the respondent vide
letter dated 8th July,2016. Since the schedule premises was never allotted
to the appellant by the respondent, they are therefore, unauthorised
occupants of the schedule premises.
7 Mr.Nikhil Rajeshirke, learned counsel for appellant, submitted
that the Estate Officer failed to take into consideration that the appellant
has been accepted as a tenant in respect of the schedule premises way back
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in the year 1952 and in such circumstances there was no question of
application of the provisions of the P.P. Act. Even the learned Estate
Officer over looked the settled position of law as led down by the Hon'ble
Apex Court in Dr.Suhas H. Pophale V/s. Oriental Insurance Co. Ltd.
And its Estate Officer, 2014(4) AIR Bom R (S.C.)563. The learned
counsel then invited my attention to the rent receipts and electricity bills
and further submitted that the whole case of the appellant is not looked
into proper perspective by the learned Estate Officer leading to the passing
of impugned order erroneously, which deserves to be set aside.
8 Mr.Sanjay Bhosale, learned counsel for respondent, on the
other hand vehemently opposed the submissions by contending that not a
single document is filed on record to prove or substantiate that the
appellant was inducted in the schedule premises before 1952. The learned
counsel also pointed out the relevant paragraph of the reply filed by the
respondent on record justifying and supporting impugned order. There
being no merit in the appeal, same is liable to be dismissed, argued learned
counsel.
10 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
1) Whether the eviction order
dated 21st February,2018 is
badinlaw? ..In the negative
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2 What order? ..As per final order
R E A S O N S
As to point no.1:
11 The appellant has come with a very specific case of having
been inducted as a tenant way back in the year 1952 by the respondent
through its Western Railway Women's Welfare Organization. It has further
supported the contentions by claiming that the necessary rent receipts and
electricity bills are filed on record. The electricity bills (Exh.A & B) for the
period November,1974 and September,1978 clearly show that the bills
were in respect of electricity supplied to the outsiders which is apparent
from the heading appearing on those bills. Moreover, these bills are
pertaining to the month of November,1974 and September,1978.
12 It is also apparent to note that pursuant to the notice dated 5th
May,2015, the appellant through it's advocate replied elaborately. In
paragraph 5, it is specifically mentioned about the execution of the
agreement in respect of schedule premises between the appellant and
respondent. In this regard, it is also relevant to go through the impugned
orders. Before that, it may be noted that it is not disputed by the appellant
that no opportunity of hearing was given to it by the Estate Officer. On the
contrary, the impugned order would show that number of opportunities
were given to the appellant. It is also noted by the Estate Officer that no
documentary evidence in support of the tenancy was produced before him
so as to substantiate that the appellant was tenant since 1952.
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13 Even during the course of arguments before this court also not
a single valid and legal document is produced so as to substantiate the
claim of tenancy. There is no satisfactory document at all to prove that the
respondent through it's Western Railway Women's Welfare Organization
had inducted appellant as a tenant in the year 1952.
14 One more letter is produced on record by the appellant at
Exh.D which was addressed by the President, WRWSSC/CCG to the
Hon'ble Secretary FPAI intimating the non availability of the additional
space at the existing site in Agripada. This was the communication
between the President Western Railway Women's Welfare Organization
and Honorary Secretary FPAI. There is no document to prove any privity
of contract between the appellant and the respondent. Therefore, much
cannot be read through the said correspondence.
15 On the other hand, the case put up by the respondent appears
to be probable. There is a letter dated 8th July,2016 written by one
Poonam Jain of Western Railway Women's Welfare Organization to
Mr.Jain thereby surrendering the premises behind the DRMBCT's office.
Needless to say this letter is essentially in respect of the schedule premises.
The letter inter alia expresses ignorance as to how and since when Western
Railway Women's Welfare Organization (WRWWO), formerly Western
Railway Women's Social Service Committee (WRWSSC) has been receiving
an annual rent from FPAI i.e. appellant. The contents of this letter clearly
belie the theory of appellant that the schedule premises was given to them
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through Western Railway Women's Welfare Organization way back in the
year 1952.
16 If the said letter is read carefully, it would show that there is
no direct involvement of WRWWO with the FPAI activities which mainly
benefits the non railway persons. In this factual background, the schedule
premises came to be surrendered to the respondent by WRWWO.
17 The learned counsel for the appellant, during the course of
argument, produced additional document in the form of xerox copies of
news paper dated September 23, 1952 and September 26, 1952. The news
item shows the opening of first Family Welfare Centre of the Family
Planning Association of India. Then there is a electric bill.
18 I have already pointed out that there is no cogent and
convincing evidence on record to establish that the appellant were either
inducted as a tenant by respondent or through WRWWO. There is
absolutely no privity of contract between appellant and respondent. Even
WRWWO is also not aware as to how and since when they were receiving
the rent from the appellant. Moreover, admittedly, the schedule premises
being ownership of the respondent and the fact that the appellant has
failed to prove the tenancy, in my considered opinion, the learned Estate
Officer appreciated all the relevant facts properly and rightly came to the
conclusion that the appellant had failed and neglected to prove their
authorised occupation over the schedule premises. The impugned order
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does not merit interference at the hands of this court.
19 The decision given in the case of Dr.Suhas H. Pophale
(Supra) is also of no avail inasmuch as the appellant has failed to prove
that the appellant was inducted as a tenant in the year 1952.
20 In view of above, I pass the following order:
O R D E R
Misc.Appeal No.109/18 stands dismissed.
R & P be sent back.
09/09/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 09/09/2019
Transcribed on : 09/09/2019
Signed by HHJ on : 09/09/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 11/09/2019 (10.55 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 9th September,2019
Order signed by P.O. on 9th September,2019
Order uploaded on 11th September,2019
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