Final Order 1

Order Details: Copy of Judgment
Pdf Text: : 1 : JUDGMENT IN MISC.APPEAL NO.142/2019
MHCC010047412019 Received on : 30.04.2019
Registered on : 27.06.2019
Decided on : 05.12.2022
Duration : Y03:M07:D05:
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC.APPEAL NO.142 OF 2019
1. Shri Himanshu Rungta,
Age: 49 Years, Occ.: Business,
2. Smt.Vandana Himanshu Rungta,
Age: 48 years, Occ. Housewife,
3. Mr.Ish Himanshu Rungta,
Age: 22 Year, Occ.: Business,
4. Ms.Vama Himanshu Rungta,
Age: 20 years, Occ.: Student,
5. Shri Ashutosh Rungta,
Age: 59 years, Occ.: Business,
6. Smt.Gayatri Ashutosh Rungta,
Age: 57 years, Occ.: Housewife,
All R/at: First Floor, Building No.123B,
Rungta Estate, Vitthalbhai Patel Road,
Mumbai – 400 004. ... Appellants
Versus
1. The Government of India,
through the Assistant Post Master
General, Mumbai Region,
Office of the Post Master General,
Mumbai Region, Mumbai400 001.
2. The Estate Officer,
Office of Post Master General,
Mumbai Region, Mumbai400 001. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 5th DECEMBER, 2022
Ld.Adv.Ashwin Shete i/b M/s.Jayakar & Partners for appellants
Ld.Adv.R.P.Ojha for Respondents.
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ORAL JUDGMENT
1. By the present appeal, the appellants are challenging the order of
eviction and damages caused by the Ld. Estate Officer before the
proceedings relating to 1st floor of building No. 123 – B by the
impugned order dated 01/04/2019.
2. It is contended that appellants No.1 to 4 are members of one
family and appellants No. 5 and 6 are a husband and wife. The
building was constructed in the year 1906 and the present
landlords acquired title only on 31/03/1967. The entire 1st and
2nd floor is in exclusive possession of the said family. The
appellants’ predecessor in title were in exclusive use of both 1st
and 2nd floor premises. It is contended that in the year 1950
Shivprasad permitted one Devdatta Seksaria to occupy part of the
1st floor premises along with other family members. He vacated
the premises in the year 1970. As he was occupying the 1st floor
premises, the family members agreed for the rent receipt being
issued in the name of D.M.Seksaria. The rent was always paid by
Shivprasad and thereafter by his children and grandchildren. On
28/12/1967, notice for termination of tenancy of the said 2nd
floor was issued against Jaidevi. It was challenged and eviction
order was passed on 29/11/1969. It was carried in appeal and
appeal was dismissed and further carried before the Hon’ble High
Court and the order of eviction was set aside by order dated
02/02/1979. By letter dated 15th May 1982, the termination
notice dated 28/12/1967 was revoked and cancelled. Shivprasad
expired in the year 2001 and appellants have succeeded to the
tenancy and they have been paying the rent. In 1970 Seksaria left
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the premises and appellants and their predecessor in title
continued with the possession and occupation of the said
premises. Same was also requested to the Department of Posts.
On 06/04/1987 fresh show cause notice was issued in the name
of the Ratanlal Seksaria even though the premises wasn’t
occupation of Shivprasad’s. The proceedings went on before the
learned Estate Officer and order of eviction was passed on
29/06/1987 and it was challenged before the Ld. Predecessor of
this Court and the order of eviction was set aside by order dated
31/08/1988. The proceedings were challenged by Prakash
Chandra in name of Ratanlal Seksaria. Fresh notices were issued
on 10th of October 1990 for vacating the 1st floor premises and
also to Ratanlal Seksaria. On 24/06/2016 another show cause
notice was issued for appearance for personal hearing on
28/06/2016. The notice dated 24/06/2016 issued to late
Prakashchandra Rungta shows that D.M.Seksaria was the original
tenant of the 1st floor premises and Jaidevi was the tenant of the
2nd floor premises. Fresh show cause notice was issued on
05/04/2017 without any reason in name of the said Shivprasad.
Proclamation was issued Under Section 80 C of the Public
Premises Act on 21st of July 2017. Appellant No.1 through his
representative attended the hearing and filed the detailed say on
5th of October 2017 and contended that the appellant and the
predecessors in title were in occupation of 1st and 2nd floors
premises and before acquisition by the Department of Post. The
the electricity bills from 1997 to 2019 are paid by the Shivprasad
etc. The Ration Card, correspondence assessment of Income Tax
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Act notices, passport are of the same address. The proceedings
were conducted in summary manner and no documents are
permitted to be produced. Second hearing was conducted on
30/01/2019 wherein it was contended that the premises were
required for expanding the services of Indian Post. The appellant
No.1 filed his written submissions on 30/01/2019 and the matter
was adjourned on 27/02/2019. On 27/02/2019 additional
written submissions of the appellants were accepted. On 11th of
March 2019 there was fresh hearing and no further material
advance arguments were made. Various judgments were cited by
the appellants by way of additional written submissions dated
11th of March 2019 and thereafter the impugned order was
passed on 01/04/2019. Hence, the present appeal.
3. It was vehemently contended that the appellants are in
occupation of the premises as tenants is much prior to the
purchase of the premises by the Department of Post and
considering the same the provisions of the THE PUBLIC
PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT,
1971 ( referred to as Public Premises Act for sake of brevity
hereinafter) the Public Premises Act is not applicable and the
authority has no jurisdiction to conduct the proceedings. It is
further contended that there is no evidence led by the
Department of Post and the Ld. Estate Officer has considered the
submissions without any evidence on record and no opportunity
was given. In view of the circumstances in the facts of the case
and considering the grounds raised, the order of the Ld.Estate
Officer is required to be set aside.
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4. Heard Ld. counsel for the Department of Post/Respondent and he
vehemently submitted that the appellants are unauthorised
occupants. There is no pleading in support of the contentions
raised before the concerned authority. He further pointed out that
Seksaria had contested the proceedings all along and the present
appellants cannot now contend that they were tenants in
occupants of the premises. In such circumstances, there was no
evidence to show occupancy and hence the Ld. Estate Officer has
rightly passed the eviction order. Considering the same, it is
submitted that the appeal be dismissed.
5. Perused the record and proceedings, the impugned order, the
appeal memo and considered the submissions. From the above
record, 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 appellants are
unauthorised occupants?
:: In the
Affirmative
2 Whether the impugned order requires
an interference?
:: Partly allowed
3 What order? :: As per final order
REASONS
As to point No.1:
6. At the outset, it is required to be clarified that there are 2 sets of
appeals before me. The present appeal deals with the 1st floor
premises and the other appeal deals with the 2nd floor premises.
As regards the contentions of tenancy and the rights of the
parties, they are the same in both the matters. There is a small
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but relevant difference in both the matters. In the present matter,
it is contended that Seksaria is the tenant. In the other matter one
Jaidevi is said to be the tenant.
7. The admitted documents on record require consideration so
much so that the rent receipts of the premises till 2011 are in the
name of the Seksaria. It could be occupied by the appellants’
family and his predecessor. But one has to consider in what
capacity. Nowhere does it indicate that they resided in the said
premises as family members of Seksaria. The issuance of rent
receipt in the name of Seksaria till 2011 is supporting the fact of
Seksaria being the tenant of the said premises. It is also necessary
to point out that the documents of the appellant himself support
this contention. At no point of time is there any demand of
change of tenancy name from Seksaria to the appellants’
predecessor. It is an admitted aspect that all along the Seksaria
and appellants were challenging the various actions
independently (albeit both proceedings were conducted on
similar grounds together) . In fact in the appeal decided on
31/08/1988. Ratanlal Seksaria claimed possession of the
premises with regard to Appeal No.60 of 1987. In paragraph 13
of the said judgment, Seksaria contended that he was out of
station and hence the notice was received by the cousin thereof
and claimed improper service of notice. Thus, till the year 1988,
the possession of Seksaria and their tenancy is seen to be
admitted and part of record. The same position is seen even in
the earlier notice which was issued on 10th of October 1990. Till
that date nothing was shown to contend that Seksaria was not in
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occupation and it was the appellants' predecessor or appellants
were in occupation. Thus, now it is too late in the day to contend
that the appellants and predecessors were in fact in occupation
and rent receipt was nominally issued in the name of Seksaria. In
fact, the appellants estopped from stating so. If the appeal memo
is considered, the appellant himself contends that the appeal
No.60 of 1987 was in fact contested through Prakashchandra,
predecessor of the appellants. He never contended that Seksaria
was not the occupant and he was the occupant. Thus, their
occupancy would not give them entitlement or protection. The
facts on record at the most would indicate that since 1990 or
thereafter the occupancy was of the predecessors of the
appellants.
8. Considering these contentions and averments, one has to consider
the category of cases as differentiated in the case of the New
India Assurance Company Ltd. V/s. Nusli Neville Wadia &
Another (2008)3 Supreme Court Cases 279,. The cases of stark
unauthorised occupants are to be dealt with accordingly and the
burden lies upon the said person to establish the said fact. It is
not the case that no opportunity was given. The record indicates
that the appellant was granted opportunity to show cause and
also present his arguments. It is not the case that the evidence of
the appellants was discarded. In fact, the evidence of the
appellants was considered,on as is where is basis, without any
reservations. In such circumstances if one considers the entire
facts of the case, it is apparent that the appellants failed to
establish the aspect of entry into the premises as legal occupants
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thereof. A very lame attempt is made and that too late in the day
that there are not distinguishable first and second floor premises
and there is one common entrance. The Ld. Estate Officer has
considered all the documents and contentions without exclusion
and has considered the said circumstance. The Ld. Estate Officer
thus has committed no procedural impropriety or violation of
principles of natural justice. The proceedings were being
conducted for the “category one” of “ stark unauthorised
occupant” as contemplated in the said about judgment of the
Nusli Wadia and thus there is no violation of rights much so
violation of principles of natural justice in this case. The
appellants were aware and furnished written arguments and did
not canvas ,that they wanted to lead evidence in the matter. In
such circumstances the said contention cannot be accepted.
9. In the present case there was contention taken of protection by
virtue of the judgment of Suhas Pophale V/s. Oriental
Insurance Company Ltd. and its Estate Officer, (2014)4 SCC
657. Apparently, the said judgment is not applicable on the face
of it. The present appellants or their predecessors were never the
tenants prior to acquisition of the property by the Postal
Departments of the 1st floor. The record produced by the
appellants itself indicates that Seksaria was the tenant. The
judgment produced by the appellants itself shows that till 1988
Seksaria was the tenant. In such circumstances any induction into
the property is post 1988, and thus the judgment of Suhas
Pophale will not be applicable to the facts of the case.
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10. In the present case the appellants were not tenants prior to
the date of purchase of 1967 and were not protected as such
under the said Act. More so, the record does not indicate that
they were in possession of the 1st floor premises prior to 1967. No
authority is shown to occupy the premises. Their occupation
being after 1967, that is namely after 1988, apparently the
premises is in “unauthorised occupancy” as contemplated under
the Public Premises Act. In such circumstances they are not
protected under the provisions of the Bombay Rent Act or the
Maharashtra Rent Control Act. In such circumstances, the
contention of protection by virtue of Suhas Pophale is not
applicable to the present case and hence this contention is not
accepted. Needless to say that in view of the findings in the
judgment of Suhas Pophale as well as Dr.Preeti Bhatt V/s.
Central Bank of India, Writ Petition No.290 of 2012 that the
said judgment is not contrary to Ashoka Marketing Ltd. and
Anr. V/s. Punjab National Bank and Ors., AIR 1991 SC 855,
the contention of this being contrary to Asoka marketing is also
not accepted. In such circumstances I hold that the appellants are
unauthorised occupants and the Department of Post have
established the said fact and hence I answer point No. 1 in
affirmative.
As to point No.2:
11. The Ld. Estate Officer has considered the right of
occupancy and unauthorised occupancy of the appellants in
correct perspective and the same does not require any
interference. As regards the arrears of rent and compensation,
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there is no finding given for the calculation stated. Considering
the same, the same is set aside with liberty to the authority to
initiate fresh proceedings as contemplated Under Section 7 of the
said Act if so advised. Considering the above aspects, there is no
question of considering the ground of requirement and hence the
additional documents filed are not required for adjudication of
this appeal. Hence, application at Exhibit 5 is liable to be rejected.
Hence, I pass the following order.
O R D E R
1. Misc. Appeal No.142 of 2019 is partly allowed.
2. The order of eviction of the appellants by the impugned order
dated 1st April 2019 is hereby confirmed.
3. The order of grant of compensation by the impugned order is
hereby set aside.
4. Liberty to the respondents to initiate fresh proceedings for
ascertainment of compensation as per law.
5. Application at Exhibit 5 is rejected.
6. Time granted till 31 January 2023 to vacate the premises subject
to the filing of undertaking within 3 weeks that the 1st floor
premises is in their possession and that they shall not create any
3rd party rights in the said property and that they shall honour of
the order on attaining finality.
7. It is contended that the amount has been deposited in this Court.
Considering the amount of FD and interest be adjusted towards
the arrears of rent/compensation and further rent/compensation,
if any.
8. Record and Proceedings be sent back to Respondent.
05/12/2022 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 05/12/2022
Transcribed on : 06/12/2022
Signed by HHJ on : 21/12/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/12/2022 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. 05/12/2022
Judgment/order signed by P.O on 21/12/2022
Judgment/order uploaded on 21/12/2022
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