Order 1

Order Details: Copy of Judgment
Pdf Text: Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
Received on : 13/03/2018
Registered on : 01/07/2019
Decided on : 18/09/2021
Duration : Y03: M06: D05:
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MISC.APPEAL NO.143 OF 2019
(CNR NO.:MHCC01 0042502018)
Gokulesh Premises CoOp.Hsg.Soc.,
Plot of Land bearing No.F.P.80A, ...Appellant
Elphinstone Estate, Mumbai. (Org.Respndt.No.7)
Versus
1. The Board of Trustees
of the Port of Mumbai,
A Statutory Body Constituted
undertaken The Major Port Trusts
Act, 1963 having its registered Office
at “Vijay Deep”, Shoorji Vallabhdas … Respondent No.1
Marg, Fort, Mumbai 400 001. (Org.Petitioner)
2. The Estate Officer of the Board of
Trustees of the Port of Mumbai,
Appointed under the PPE Act,1971;
having office at 7th floor, Vijaydeep,
Shoorji Vallabhdas Marg, Fort,
Mumbai 400 001. … Respondent No.2
3. Maganlal Babubhai Mehta … Respondent No.3
(Org.Resp.No.1)
4. Harikisan Maganlal Mehta … Respondent No.4
(Org.Resp.No.2)
5. Mahendra Prabhudas Mehta … Respondent No.5
(Org.Resp.No.3)
6. Jitendra Harilal Mehta … Respondent No.6
(Org.Resp.No.4)
7. Hasmukh Amritlal Mehta … Respondent No.7
(Org.Resp.No.5)
8. Arvind Dhirajlal Mehta … Respondent No.8
(Org.Resp.No.6)
Respondent Nos.3 to 8 are addressed
at 101, Giriraj Iron Market,
Sant Tukaram Road, Mumbai400 009.
Page 1 of 1
18/09/2021
-- 1 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
APPEARANCES:
For the Appellant:
— Mr.Piyush Raheja, Counsel,
with Darmesh Pandya i/b Ahwin @ Associates, Advocate.
For Defendant No.5:
— Mr.Amir Arsiwala, Counsel,
with Roop Basu i/b The Law Point, Advocate.
Coram : H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL (C.R.No.19)
Dated : 18th SEPTEMBER, 2021
ORAL JUDGMENT
The appeal U/s.9 of the Public Premises (Eviction of
Unauthorized Occupants) Act is preferred against the Exparte order
passed by the Estate Officer, Mumbai Port Trust dated 07.12.2017,
directing eviction of the members of the appellant from the subject
premises.
2. At the outset it would be appropriate to mention that the subject
premises namely Plot of Land bearing No.F.P.80A, Elphinstone Estate,
Mumbai admeasuring 406.43 sq.meters was given on lease to
respondent nos.3 to 8 for a period of 30 years without executing Lease
Deed and thereafter these respondents constructed a building on the
plot and inducted the members of the appellant and the process of
assignment was going on and for the last several years the members of
the appellant are occupying separate premises in the said constructed
building. However, since this proposed assignment or arrangement was
not with the consent of the Mumbai Port Trust and also since there
were arrears of rent, the proceedings for eviction were initiated.
Page 2 of 2
18/09/2021
-- 2 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
3. The appellant filed written statement in the proceedings, however
subsequently did not participate in the proceedings, neither the witness
of the Mumbai Port Trust was examined nor any evidence was led by
the appellant and as such the impugned exparte order came to be
passed.
4. It is admitted by both the sides that during pendancy of these
proceedings before this Court the members of appellant had been
evicted from the subject premises since there was no stay and execution
proceedings has also come to an end despite the aforesaid proceedings.
The learned Counsel for the appellant submits that since order
impugned itself is not sustainable opportunity be given for hearing on
merits. His first contention is that it was incumbent on the Estate
Officer to give reasoning and finding regarding unauthozied occupation
of the appellant in the subject premises, however impugned order does
not disclose any such reasoning or finding and solely on this ground the
impugned order cannot be sustained. He further submits that because of
miscommunication with the Lawyer they could not participate in the
proceedings further as such proper opportunity for hearing be given and
in view of fairness and justice they be permitted to contest the
proceedings before the Estate Officer.
5. Learned Counsel for the respondents on the other hand submits
that although reasoning and finding as regards unauthorized
occupation has not been seen in the impugned order with much clarity
but the same can be inferred from perusal of the order if it is looked
into comprehensively. He further submits that several opportunities
Page 3 of 3
18/09/2021
-- 3 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
were given to the appellant but they chose not to participate as such
this ground is also not available to the appellant. In that view of the
matter, following points arise for my consideration and my findings
thereon for the reasons therefor are as under:
POINTS FINDINGS
1. Whether the impugned order gives reasoning
and finding that the appellant is in
unauthorized occupation of the premises?
In the
Negative
2. Whether the execution of the impugned order
shall have any bearing on the appeal?
In the
Negative
3. Whether the appellant is entitled to
participate in the proceedings before Estate
Officer and in that event, the matter be
remanded back?
In the
Affirmative
4. What order? As per final order
R E A S O N S
Point nos.1 to 3:
6. Perusal of the impugned order would reveal that in Para9 the
issues were framed which reads thus...
“a. Whether the petitioners prove that the premises in petition
are public premises within the meaning of Public Premises
(Eviction of unauthorized occupants) Act, 1971?
b. Whether the petitioners prove that the Respondent are
unauthorized occupants as described under the provision of
law?
c. Whether the Petitioners prove that the tenancy/ lease has
been duly terminated by service of valid notice to quit
dated 04.12.2014?
Page 4 of 4
18/09/2021
-- 4 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
d. Whether the Petitioners prove that the petitioners are
entitled to recover vacant and peaceful possesion of the
premises in petition after removal of building constructed
thereon i.e. plot of land bearing no.F.P.80A admeasuring
406.43 sq.mtrs. Situated at Elphinstone Estate, Mumbai
and as per detailed particulars mentioned in Exhibit 'A' to
the Petition?
e. Whether the Petitioners prove that they are entitled to
recover from the respondent no.1 to 6 arrears of rent
compensation other charges and interest as per particulars
mentioned in AnnexureB of the Petition?
f. Whether the petitioner proves that the respondent 1 to 6
had unauthorizedly/ illegally and wrongfully made
unlawful assignment in favour of the respondent no.7?
g. Whether the petition is barred by law of limitation?
h. What order and decree?”
7. After framing of these issues, it is incumbent on the Estate Officer
to consider the relevant material on record, the reasons about the
unauthorized occupation and thereafter findings are required to be
given in that regard. In the subsequent part of the order he referred to
the affidavit of evidence and has stated that “As already ordered
hereinabove, the Respondent no.1 to 7 are unauthorized occupant”,
however, if we read prior portions of this order, nowhere we can find
the reasoning or the finding in that regard and the same is a sinequa
non for passing an order U/s.5 of the Public Premises Act. Even if as
contended by the learned Counsel for the respondents we go through
the entire order and look into it comprehensively, it does not appear
that there is consideration of this aspect and deliberation thereupon and
there is consequently no finding in this regard. Solely on this ground
the impugned order cannot be sustained.
Page 5 of 5
18/09/2021
-- 5 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
8. Furthermore although the order impugned has been executed and
possession is handed over to the Mumbai Port Trust, the effect thereof
may not be considered in the present appeal and the appellant shall be
at liberty to invoke the appropriate jurisdiction as and when occasion
arises. In view of the finding as aforesaid although perusal of record
would reveal that sufficient number of opportunities were given to the
appellant, but they had chosen not to participate in the proceedings and
no justifiable ground has also been made out for not participation,
except for the reason that there is no proper communication between
the numbers of the appellant and the advocates, however since the
matter is being remanded even otherwise on a different ground, I find it
to be in the fitness of things and as also in the fairness and justice that
after remand the appellant is permitted to participate in the
proceedings. In such circumstances I answer the points accordingly and
pass the following order.
O R D E R
1) Misc.Appeal No.143 of 2019 is partly allowed.
2) Impugned order dated 7th December 2017 passed by the Estate
Officer, Mumbai Port Trust is hereby set aside and the matter is
remanded back for passing appropriate order in accordance with
law.
3) Appellant shall appear before the Estate Officer on 14th October,
2021 and thereafter the proceedings shall be completed by the
end of this year.
Sd/
18/09/2021 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 18/09/2021
Transcribed on : 20/09/2021
Signed by HHJ on : 20/09/2021
Page 6 of 6
18/09/2021
-- 6 of 7 --
Gokulesh Premises CHS. Vs. Board of Trustees of Port of Mumbai & Ors.
judgment In Misc.Appeal No.143 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/09/2021 11.10 a.m. B.R.HATEKAR S.G.
Name of the Judge HH THE SESSIONS JUDGE
SHRI S.B.AGRAWAL (CR No.19)
Date of Pronouncement of Judgment/Order. 18/09/2021
Judgment/order signed by P.O on 20/09/2021
Judgment/order uploaded on 21/09/2021
Page 7 of 7
18/09/2021
-- 7 of 7 --