Order 1

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Pdf Text: Order for granting adinterim relief .. 1 .. Appeal No.132/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER ON REQUEST OF PLAINTIFF MADE IN THE APPEAL MEMO
FOR GRANTING ADINTERIM RELIEF IN TERMS OF PRAYER
CLAUSE (b) AND (c)
IN
APPEAL 132 OF 2019
M/s. Sani Business Centre,
Shop No.38, CST Sub way,
Mumbai – 400 001.
Through Mr. Manish Pardasani,
being constituted attorney of
Mr. Shrichand Pardasani
(Proprietor of M/s. Sani Business Centre) ...Appellant.
V/s.
The Municipal Corporation of Greater Mumbai.
Having office at Mahapalika Bhavan,
Mahapalika Marg, Fort,
Mumbai – 400 001. ...Respondent.
Appearances:
Learned Adv. Mr. Jubin Dalal I/b. M.M. Legal 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 : 24th April, 2019.
: ORAL ORDER :
1. The learned Advocate of the appellant has submitted that ad
interim relief be granted in terms of prayer clause (b) & (c) of the
appeal memo. In prayer clause (b), it is requested that, pending the
hearing and final disposal of the appeal, the impugned order be stayed
and in prayer clause (c), it is requested that, pending the hearing and
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disposal of the appeal, status quo may directed to be maintained in
respect of the subject premises. The learned Advocate of the appellant
has submitted that appeal is filed under section 105(F) of of the
Mumbai Municipal Corporation Act (MMC Act) to challenge the legality
of the impugned order dated 15.03.2019 passed by the learned Inquiry
Officer in inquiry No.A/18/MKT/2017 under section 105(B) of the
MMC Act. The learned Advocate of the appellant has invited my
attention to the grounds raised in the appeal memo. He has submitted
that the subject premises was allotted by the respondent/Municipal
Corporation to the appellant on leave and license agreement dated
17.11.2001 for a period of 10 years. Thereafter, the respondent had
issued notice in the year 2009 to terminate that agreement, before
expiry of the 10 years of the license. However, subsequently, the
respondent withdrew that notice. Thereafter, the respondent assured
that the license/lease would be renewed for a period of 5 years, as per
terms of the earlier agreement. However, the respondent has not
entered into any formal agreement in this regard, despite the request of
the association of the occupiers of the premises including the appellant.
However, the respondent had been accepting monthly rent from the
appellant and other occupiers of other premises. The learned Advocate
of the appellant has submitted that the subject premises and other
premises in the locality, were constructed under the resolution of the
legislative body of the Municipal Corporation and the allotment of the
shops has been done under the sanction of the improvement committee
of the corporation and, therefore, the respondent or its Commissioner
or any administrative authority cannot terminate the agreement, since
that would be contrary to the provisions of law contend in section 69
and 92 (c) of MMC Act. The appellant has right to continue to be in use,
possession and occupation of the subject premises in the aforesaid
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circumstances.
The learned Advocate of the appellant has further submitted that
on 23.06.2016, the respondent had issued notice to the appellant
directing him to vacate the subject premises, which was challenged by
the appellant by filing Writ Petition and the Hon'ble High Court by its
order was pleased to set aside that notice after hearing both the parties,
interalia, on the ground that the principle of natural justice has not
been followed as well as the procedure laid down under subsection (2)
of section 105(B) of MMC Act has not been followed by the respondent.
Thereafter, again on 29.04.2017, the respondent has issued notice to
the appellant to vacate the premises. Pursuant to that notice, the notice
dated 17.10.2017 has been issued by the respondent. The appellant has
given reply to these notices and, thereupon, the Inquiry Officer
conducted inquiry under subsection (2) of section 105(B) of MMC Act,
wherein the impugned order has been passed directing the appellant to
vacate the premises. The learned Advocate of the appellant has referred
to the provisions of subsection (2) of section 105(B) of MMC Act, in
which it is provided that before an order for eviction under subsection1
is made against any person, the Commissioner shall issue in the manner
provided in this section, a notice in writing calling upon the persons
concerned to show cause, why an order of eviction should not be made.
The learned Advocate of the appellant has submitted that these
provisions have not been followed, while issuing the notices dated
29.04.2017 and 17.10.2017, purportedly issued under subsection (2) of
section 105(B) of MMC Act. It is submitted that in the notice dated
29.04.2017, it is said that the respondent has taken a decision not to
renew the agreement and hence, under clause (32) of the agreement of
leave and license, the said agreement shall stand revoked, terminated.
In the notice dated 17.10.217, it is stated by the respondent that the
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appellant is in unauthorised occupation of the premises and the
premises is required for public purpose to avoid over crowding and
congestion in subway and, therefore, the respondent proposed to order
to the appellant to vacate the said premises. Pointing out these contents
of the notices, the learned Advocate of the appellant has submitted that
the respondent had predetermined, while issuing these notices to evict
the appellant from the subject premises and, therefore, it cannot be said
that the procedure laid down in subsection (2) of section 105(B) of
MMC Act, has been followed by the respondent. It is also submitted that
the Commissioner of the respondent is not authorised to order eviction
of the appellant as the subject premises was given to the appellant with
the sanction of the committee of the corporation and without sanction
of the committee of the corporation, the Commissioner cannot
terminate the agreement. In this regard, reference is made to section 92
of MMC Act. The learned Advocate of the appellant has also submitted
that there is no evidence, on the basis of which, it can be said that the
subject premises is required for public purpose to avoid over crowding
and congestion in the subway. It is submitted that the appellant has
raised the ground in the appeal that the Inquiry Officer has over looked
the fact that before any enquiry, he had arrived at decision and had
already conveyed its satisfaction to pass the impugned order. The
Municipal Corporation has not shared all the documents and evidence
on the basis which the Enquiry Officer has arrived at this decision. It is
submitted that the appellant has been paying rent and, therefore,
without following proper procedure, the agreement of leave and license,
cannot be terminated at the whims of the respondent and this has not
been considered by the learned Inquiry Officer. Therefore, it is
submitted that the appellant has prima facie case to claim adinterim
stay to the impugned order.
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2. On the other hand, the learned Advocate of the respondent has
submitted that provisions of section 92 and the order of the Hon'ble
High Court in Writ Petition challenging earlier notice of Muncipal
Corporation, do not preclude the Municipal Commissioner of the
corporation to take action under section 105(B) of the MMC Act. It is
submitted that notices were issued by the respondent terminating the
agreement of leave and license as the leave and license period
mentioned in the main agreement of 2001 was already expired and as
the subject premises is required for public purpose to avoid over
crowding and congestion in the subway near the subject premises. It is
submitted that the notices dated 29.04.2017 & 17.10.2017 are not
suffering from any illegality. He has submitted that the appellant has
not challenged the notice dated 29.04.2017 by filing appropriate
proceeding before the appropriate forum and, therefore, the agreement
stands revoked and terminated as per that notice. After the termination
of the agreement of leave and license, the occupation of the appellant is
unauthorised as provided in clause (d) of section 105(A) of MMC Act &
under subsection (2) of section 105(B) of MMC Act. Inquiry
officer/Commissioner is empowered to initiate inquiry and accordingly,
the inquiry has been done, in which the appellant was given
opportunities of hearing and, thereafter, the impugned order has been
passed under subsection (1) of section 105(B) of MMC Act, directing
the appellant to vacate the premises. In such circumstances, it is
submitted that the appellant has no prima facie case. The learned
Advocate of the respondent has submitted that in similar matter, this
Court has passed an order dated 15.04.2019 in Appeal No.121/2019,
refusing to grant adinterim stay to the order passed by the respondent
under subsection (2) of section 105(B) of MMC Act, holding that after
expiry of period of agreed license and after termination of the
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agreement for license, the occupation of the appellant was prima facie
unauthorised and as the premises was required for public purpose, this
Court has refused to grant adinterim stay in the said Appeal
No.121/2019. The learned Advocate of the respondent has also referred
to the decision of Hon'ble Supreme Court in the case of Ashok Caterers
V/s. Municipal Corporation of Greater Bombay (Best Undertaking)
[1997 (9) Supreme Court Cases 220]. In that case, it was held that
lease from month to month basis had expired by efflux of time, and also
validly determined on ground of requirement of the premises for
expansion of existing bus stand. Therefore, the tenant had become
unauthorised occupant and he could be summarily evicted under
section 105(B) of MMC Act.
3. I have examined the aforesaid submissions of the parties. I have
also gone through the decision of Hon'ble Supreme Court, cited supra.
It is not disputed that the subject premises was given by the respondent
corporation to the appellant as per the terms and conditions of the
agreement dated 17.11.2001 for a period of 10 years. The appellant has
produced copy of that agreement with the appeal memo. It shows that it
is for leave and license for a period of 10 years from the date of this
agreement. The appellant appears to have mentioned in the appeal
memo that the premises was given on lease. However, this does not
appear jto be supported by any document of lease. Even in the course of
argument, the learned Advocate of the appellant has submitted that the
premises was given to the appellant on leave and license for a period of
10 years. Admittedly, this period has expired in the year 2011. It
appears that even after expiry of this period, the appellant had been
paying rent/compensation to the respondent. However, the fact remains
that the said period of 10 years has expired in the year 2011. Moreover,
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on 29.04.2017, the respondent has issued notice, copy of which is
produced by the appellant. By this notice, the respondent has informed
that after 17.11.2001, the corporation has not executed any agreement
of leave and license and the corporation has taken a decision not to
renew the agreement and under clause (32) of the agreement, the
corporation has revoked and terminated the agreement dated
17.11.2001 and asked the appellant to vacate the subject premises on or
before 31.05.2017. The learned Advocate of the appellant has
submitted that no show cause notice was issued by the respondent to
the appellant, before the terminating the agreement by this notice.
However, in the light of the fact that the original 10 years period of
leave and license under the said agreement has already expired in the
year 2011, I do not think that the respondent was under obligation to
call any explanation from the appellant before terminating the
agreement. This notice has not been challenged by the appellant before
any other forum. After this notice, the respondent has issued the notice
dated 17.10.2017 under subsection (2) of section 105(B) of MMC Act,
mentioning that the appellant is in unauthorised occupation of the
subject premises and the subject premises is required for public purpose
to avoid over crowding and congestion in the subway. In the notice, it is
mentioned that therefore, the Inquiry Officer proposes to order the
appellant to vacate the subject premises on the aforesaid grounds and
then, in this notice, the appellant has been called upon to tender his
explanation and produce evidence, if any, and to show cause as to why
the proposed order should not be made. I do not find, prima facie, any
illegality in this notice, as has been submitted by the learned Advocate
of the appellant. The learned Advocate of the appellant has submitted
that in this notice, it was already predetermined to evict the appellant,
but this submission cannot be accepted. It may be noted that the Inquiry
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Officer was making inquiry under subsection (2) of section 105(B) of
MMC Act, before passing eviction order under subsection (1) of that
section. In this notice, what is said is that the Inquiry Officer proposes
to pass an order of eviction. It is merely proposal and information as to
with what reference, the instant notice is issued and in what respect the
inquiry is to be held. With reference to that the appellant was called
upon by that notice to show cause as to why order of eviction should
not be passed. Therefore, I am not convinced with the aforesaid
submissions of the learned Advocate of the appellant, that the above
contents of the notices indicate that eviction order was predetermined
and no enquiry was made before passing eviction order.
4. On perusal of the impugned order, I find that the 10 years leave
and license period mentioned in the agreement has already expired in
the year 2011. Even if, the appellant had been paying rent thereafter,
his occupation over the premises after the notice dated 29.04.2017
terminating the agreement of leave and license becomes unauthorised,
particularly when admittedly there is no leave and license agreement or
lease agreement executed by the Municipal Corporation, after the
aforesaid period. Clause (d) of section 105(A) defines unauthorised
occupation for the purpose of eviction of persons from corporation
premises. 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”.
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5. In view of the aforesaid definition of unauthorised occupation
and in the aforesaid facts of the instant case, prima facie, it cannot be
said that the occupation of the appellant is authorised, in any way. The
impugned order appears to have been passed after considering all these
aspects and, therefore, prima facie, I do not find that the impugned
order suffers from any illegality. Provisions of section 92 of MMC Act
referred by the learned Advocate of the appellant, are in respect of
disposal of municipal property. In clause (c) thereof, it is provided that
the Commissioner may lease, sale or otherwise convey any immovable
property belonging to the corporation with the sanction of the
Municipal Corporation or its committee. The said provision is in respect
of the disposal of the property and not in respect of the eviction of the
property of corporation. Therefore, it is not helpful to the appellant in
contending that before passing the impugned order of eviction, the
Municipal Commissioner was to take sanction from the standing
committee of the corporation, the approval of which, was obtained
before giving the subject premises to the appellant in the year 2001.
The learned Advocate of the respondent has rightly referred to the
decision of Hon'ble Supreme Court noted supra. Relying on the said
decision, it can be said that in the facts and circumstances of the instant
case, including that the tenure of leave and license of the appellant has
expired and, thereafter no leave and license agreement has been
executed in his favour, it can be said that his occupation over the suit
premises is prima facie unauthorised. Therefore, taking into
consideration, the case of the Municipal Corporation that the subject
premises is required for public purpose in respect of avoiding over
crowding and congestion in the subway near the public place i.e.
Chhatrapati Shivaji Maharaj Terminus(C.S.M.T), I find it difficult to
grant adinterim relief in respect of the impugned order regarding
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eviction of the appellant from the suit premises.
For all these reasons, adinterim stay for adinterim relief as
prayed in the Appeal Memo, is refused.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 24.04.2019. City Civil Court, Gr. Mumbai
Dictated on : 24.04.2019.
Transcribed on : 24.04.2019.
Signed on : 26.04.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.04.2019, at 02.02 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 24.04.2019.
Judgment/order signed by P.O. on 26.04.2019.
Judgment/order uploaded on 26.04.2019.
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