Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal 107.18
Received on : 04/04/2018
Registered on : 06/04/2018
Decided on : 21/11/2018
Duration : Y M D
00 07 18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.107 of 2018
Sidharth V. Kamble
retired Municipal employee,
residing in room no.18,
building no.E3, Deonar
Municipal Colony Building,
No.3 C.H.S Ltd., Govandi (W),
Mumbai43 ..Appellant
V/s.
The Municipal Corporation of
Gr.Mumbai, a body Corporate
constituted under the Mumbai
Municipal Corporation Act 1888
and having its principal office at
Mahapalika Marg, Mumbai1 ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 21st November, 2018
(C.R.No.19)
Advocate Mr.Rajendra Ghorpade for appellant.
Advocate Mr.Vikram Walawalkar with advocate Mr.A. V. Diwate for
respondent.
O R A L J U D G M E N T
Order passed by the Inquiry Officer under Section 105B(1)
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of the Mumbai Municipal Corporation Act,1888 (for short MMC Act)
dated 5th March,2018 directing eviction of the appellant from room
no.18, block No.E/3, at Deonar Municipal colony, building no.E3
C.H.S. Ltd, Govandi, Mumbai is assailed in the present appeal.
2 The facts necessary to decide the present appeal are as
under:
The appellant is a retired municipal employee. His date of
retirement is 31st December,2015. By virtue of his employment, he was
allotted Corporation premises i.e. room no.18, block No.E/3, at Deonar
Municipal colony, Govandi, Mumbai vide Leave and License Agreement
dated 2nd January,1984. Clause 6 in the said agreement is relating to
the termination of the license. Clause 6 reads thus:
“The license shall terminate on my leaving or
retiring from Municipal service or on my being discharged
or dismissed from Municipal service.”
3 Even after his retirement the appellant did not vacate the staff
quarter as per clause 6 of the Leave and License agreement. The
Mumbai Municipal Corporation issued 15 days quit notice dated 24th
May,2017 to him asking him to vacate the staff quarter. The same was
received to him on 22nd June,2017. As he did not vacate the staff
quarter, eviction proceeding was initiated before the Inquiry Officer. A
statutory show cause notice under subsection 2 of section 105B of
MMC Act dated 31st October,2017 was issued to him. The same was
received to him on 6th November,2017. He appeared before the Enquiry
Officer and put up his case. The Inquiry Officer recorded evidence as
adduced by both the parties.
4 On the basis of evidence on record, the Inquiry Officer
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passed the impugned order of eviction holding that the appellant is in
unauthorized occupation. The impugned order is challenged in the
present appeal.
5 I have heard the learned counsel Mr.Ghorpade for the
appellant and Mr.Diwate for respondent. The learned counsel for the
appellant also filed on record his written notes of arguments. The
following points arise for my consideration and my findings thereon for
the reasons therefor are as under:
POINTS FINDINGS
1) Whether the appellant is found
to be in unauthorized occupation ..In the affirmative
of the suit premises?
2) Whether the order passed by the
inquiry officer is just, proper and ..In the affirmative
legal?
3) What order? As per final order
R E A S O N S
6 Points no.1 and 2:
The learned Counsel for the appellant argued that the appellant
has paid rent regularly till his retirement. His tenancy has been
converted from the leave and license basis to ownership basis as per the
respondents letter ref. no. Estate/5225/SO dated 19th September,2009
for conversion of tenements in Deonar Municipal Colony E, F, G blocks
into ownership basis. In view of the formation of CoOperative Housing
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Society in 199394, Section 105F of Mumbai Municipal Corporation Act
is not applicable to the case of the appellant. The Corporation has
created permanent tenancy in favour of the appellant and therefore the
Corporation is estopped from evicting the appellant on the ground of
unauthorised occupation and therefore the alleged quit notice dated
24th May,2017 is illegal. In support of his argument the learned counsel
placed reliance on the judgment of the Supreme Court reported in 2007
ALL SCR (O.C.C.) 105 (1970(1)SCC 582) Century Spinning and
Manufacturing Co. Ltd. V/s. The Ulhasnagar Municipal Council &
anr., wherein the Court held that the principal of estoppel is applicable
to public bodies as much as private individual to carry out the
representation of facts and promises made by them, relying on which
other persons have altered their positions, to their prejudice.
7 The learned counsel also referred the correspondence
between the CoOperative Housing Society with the authorities of the
Municipal Corporation in support of his argument.
8 It is also submitted that the order of the Hon'ble High Court
dated 6th January,2017 in Writ Petition no.1957/2013 is not applicable
to the applicant's CoOperative Housing Society as the same was never
a party for such proceedings. The learned counsel prays to set aside the
impugned order passed in Enquiry No.ME/27/ESH of 2017 under
Section 105B of MMC Act.
9 Per contra, the learned counsel for the Corporation
supported the impugned order and placed his reliance on the judgment
of Hon'ble Bombay High Court dated 6th January,2017 in Writ Petition
no.1957/2013.
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10 The ld.counsel further submitted that Section 105F of the
MMC Act does not provide for formation of society. The appellant
being an employee of the Corporation is bound by the terms and
conditions as set out in the Leave and License agreement dated 2nd
January,1984. The said agreement is still in force. He neither vacated
the suit premises after receipt of quit notice nor replied the same. The
purpose and object to provide service quarter to the employees is to
avail better and expeditious services. He cannot claim as of right the
retention of the Corporation premises. Ld.counsel prays to dismiss the
appeal.
11 I have considered the submissions on behalf of both the
parties. At the outset, the scope for consideration before this Court,
being an appellate authority, is not greater than the authority whose
order is challenged in this appeal. The impugned order is passed under
Section 105 B of MMC Act, 1888.
12 Section 105B empowers the Commissioner of the
Corporation to evict a person from corporation premises on the grounds
mentioned therein. 'Unauthorised occupation' is one of the grounds
mentioned therein under clause (b). Section 68 of MMC Act 1888
permits the commissioner to delegate any of his powers, duties and
functions conferred upon him to be exercised, performed or discharged
by any municipal officer. Accordingly, the powers of the Commissioner
under Section 105B of MMC Act, 1888 have been delegated to Enquiry
Officer Smt. Radhika B. Pradyhan vide order dated 30th June,2015.
13 Undisputedly, inquiry premises is owned by the
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Corporation. The only issue to be decided by the Enquiry Officer was
about the unauthorized occupation of the Corporation premises by the
appellant.
14 As per section 105A(d) of the Mumbai Municipal
Corporation Act, 1888, the ‘unauthorized occupation’ includes the
continuance in occupation by any person of the public premises after
the authority under which he was allowed to occupy the premises has
expired or has been determined for any reason whatsoever.
15 In the instant case, no doubt, the entry of the appellant to
the inquiry premises is authorized and lawful. He, being an employee
of the Municipal Corporation, was allotted a staff quarter on execution
of the Leave and License Agreement dated 2nd January,1984. Clause 6
of the said agreement provides for the termination of the lease on
retirement of the occupant from municipal service or on his discharge
or dismiss from municipal service. In the instant case appellant retired
on 31st December,2015. Therefore, on the retirement of the appellant
the lease stands determined. However, the appellant is still in
possession of the Corporation premises. The nature of his tenancy was
monthly tenancy.
16 The Municipal Corporation issued 15 days quit notice dated
24th May,2017, which was received to the appellant but he did not
vacate the quarter. The Corporation initiated the eviction proceedings
before the enquiry officer under the provisions of the Corporation Act.
The record and proceeding before the Ld. Enquiry Officer shows that
the Ld.Enquiry Officer, being a quasi judicial authority has duly
followed principles of natural justice and gave an opportunity of
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hearing to the appellant and passed a reasoned order. The learned
Enquiry Officer also relied on the aforesaid judgment of the Hon'ble
Bombay High Court in support of his reasoning. I do not find any error
or perversity in the order of Ld.Enquiry Officer. The occupation of the
appellant to the Enquiry premises is proved to be unauthorized and he
is liable to be evicted.
17 The Enquiry Officer in the trial and this court in appeal
have no power to decide the question of conversion of lease premises
into ownership basis as argued by the learned counsel for the appellant.
The Hon'ble High Court has already dismissed the Writ Petition
No.1797/2009 which was filed by some of the exemployees of the
Municipal Corporation, who were in possession of the staff quarters
even after their retirement, inter alia for the issuance of Writ of
Mandamus to implement the Resolution No. 343 dated 1st
September,1989 passed by the Municipal Corporation for converting
allotment of rented tenements into ownership basis. The Hon'ble
Supreme Court confirmed the order of the Hon'ble High Court by order
dated 1st May,2017 in SLP(C) No.13605/2017. In this judgment, the
Hon'ble High Court has made it clear that it shall not be the duty of the
Municipal Corporation to provide any housing accommodation to the
petitioners, much less allowing retention of the present municipal
accommodation. The appellant can not claim his vested right in the
Corporation premises. The ratio of the aforesaid judgment of the High
Court is applicable to all the employees who are similarly situated,
irrespective of the fact whether they are party to the petition or not. No
case is made out to set aside the impugned order. Furthermore, this is
again not the appropriate forum to consider the ground of promissory
estoppel against the Corporation. The occupation of the premises by the
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appellant is governed by the said leave and license agreement dated 2nd
January,1984. The appellant's occupation has become unauthorized as
per clause 6 of the said agreement and he his is liable to be evicted. I
answer both the points accordingly pass the following order.
O R D E R
1) Misc.Appeal No. 107/2018 stands dismissed with costs.
2) R&P be sent back forthwith to the respondent.
21/11/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 21/11/2018
Transcribed on : 21/11/2018
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 27/11/2018 (At 5.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 21st November,2018
Order signed by P.O. on 27th November,2018
Order uploaded on 27th November,2018
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