Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010049132018
Received on : 16.04.2018
Registered on : 18.04.2018
Decided on : 19.08.2018
Duration : Y04:M04:D03:
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.149 OF 2018
(CNR NO.:MHCC010049132018)
Smt.Kalpana Madhukar Shreemante, (Deleted)
a Retired Municipal Employee,
R/at : Room No.4, Bk.No.D/15,
Vikroli Parksite, Municipal Colony,
664 Tenaments Vikhroli(West),
Mumbai.
Mr.Gopal Gajanan Pradhan,
Power of Attorney Holder and brother of
Original Petitioner Smt.Kalpana M.Shreemante,
Staying at : Room No.4, Bk.No.D/15,
Vikroli Parksite, Municipal Colony,
664 Tenaments Vikhroli(West),
Mumbai. ... Appellant
Versus
The Municipal Corporation of Gr.Mumbai,
a body Corporate constituted under the
Mumbai Municipal Corporation Act and
having it's principal Office @ Mahapalika
Marg, Mumbai400 001 and Appellate
Office at EWard, Byculla, Mumbai. ... Respondent
CORAM: CORAM: H.H.THE PRINCIPAL JUDGE
SMT.V.V.JOSHI (C.R.No.19)
DATED: 19th AUGUST, 2022
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Ld.Adv.Ashish Baraskar, for Appellant.
Ld.Adv.Vidya Vyavahare for respondent/BMC.
ORAL JUDGMENT
1. Being aggrieved by the order passed by the Enquiry Officer in
Enquiry No.N/1 of 2017, the appellant has filed this appeal.
2. The Enquiry Officer has issued the show cause notice under Sub
section 2 of Section U/s.105B of the Act upon the appellant. The
appellant represented by his advocate and after considering the
evidence on record, Enquiry Officer has passed the order of eviction.
3. It is the case of the respondent before the Enquiry Officer that
the property known as Room No.4, Chawl No.D/15, @ Vikroli Park
Site, Municipal Colony, 664 Tenaments, Vikroli(W), Mumbai was
allotted to Smt.Kalpana M.Shreemante as staff quarter on leave and
license basis by virtue of his employment with applicant. As per the
agreement executed between the appellant and the respondent, the
license shall terminate on his leaving or retiring from the Municipal
service or on his being discharged or dismissed from the municipal
service. The appellant retired from the Municipal service on 01.01.1994
and thus license to occupy the enquiry premises has come to an end as
per condition no.6. Even after his retirement appellant continued to
occupy the premises. The occupation of the enquiry premises is
unauthorized since the date of his retirement.
4. Instead of vacating or handing over the possession of the
enquiry premises, the appellant preferred the Writ Petition vide Nos.957
of 2013, 1797 of 2009 and other petitions before the Hon'ble High
Court and after dismissal of said petitions, he preferred petitions before
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the Hon'ble Supreme Court and all the litigations upto the Apex Court
are not in favour of the appellant. The Hon'ble High Court in Writ
Petition has directed the appellant to hand over the possession within
three months from the date of order, on failure to do so directed the
respondent to initiate action U/s.105B of the MMC Act. As the appellant
failed to vacate and hand over the staff quarter, the respondent issued
the notice.
5. The appellant appeared before the Enquiry Officer, filed his say
and contested the matter. He has stated that though initially quarter
was alloted to him as staff quarter and he has to vacate it on
superannuation, but said quarter was allotted to him when he was in
service. Municipal Corporation converted it into ownership basis. The
respondent have allowed the appellant to occupy the inquiry premises
after retirement from Municipal services by passing the resolution as
C.R.No.343 dated 01.09.1989. The appellant has stated that as per the
directions of the respondent they have formed Cooperative society and
the appellant is a member of cooperative society. As per resolution of
Corporation the Municipal corporation converted enquiry premises
from staff quarters into ownership basis and therefore the occupation of
enquiry premises by the appellant is authorized.
6. As per the circular, respondent withheld one third of total
gratuity amount and they allowed the appellant to retain enquiry
premises and need not necessary to vacate the enquiry premises. The
cost of the enquiry premises was adjusted and converted from staff
quarter into ownership basis from the withheld gratuity amount and
therefore, they did not ask to vacate the premises. The appellant retired
from the service of the respondent. According to allotment of eqnuiry
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premises as staff quarters, the appellant has executed the leave and
license agreement in respect of inquiry premises. The appellant was
aware about the condition of leave and license agreement. The
appellant mentioned about the retention before the Hon'ble High Court
and Hon'ble Supreme Court and he loses the benefit of judgment of
Hon'ble High Court as he fails to hand over the possession within three
months from the date of judgment.
7. After considering the argument and evidence on record, the
Enquiry Officer has passed the order and evicted the appellant from the
said premises.
8. Being aggrieved by the said order, the appellant has filed this
appeal on following grounds;
That the impugned order is totally against the policy laid down
by the Corporation, arbitrary, against the law, good conscience and
equity.
The Enquiry Officer erred in holding that the appellant was in
unauthorized occupation of the enquiry premises.
The Enquiry Officer ought to have held that the appellant, being
the Municipal employee, was in occupation of the enquiry premises.
The Enquiry Officer failed to appreciate that the corporation had
adopted the policy and had already accorded the sanction vide
C.R.No.343 of 01.09.1989 for conversion of single story structures
alloted as staff quarters to the Municipal Employees into ownership
basis in the four colonies (1) Barve Nagar, Ghatkopar, (2) Mitha Nagar,
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Goregaon, (3) Deonar Municipal Colony and (4) Park site Colony,
Vikroli.
The enquiry premises is from one of the above four colonies and
hence the status of the occupation of the enquiry premises by the
employee of the respondent no more remains as on leave and license
basis but it had been changed into ownership basis.
The Enquiry Officer failed to appreciate that the appellant was
not a trace passer or an unauthorized occupant of the enquiry premises
but was the original allottee of the respondent.
The Enquiry Officer failed to appreciate the evidence on record.
The impugned order is otherwise bad in law, illegal and not
maintainable and is liable to be set aside and hence prayed to set aside
the order passed by the Enquiry Officer by allowing this application.
9. After hearing both the sides following points arise for my
consideration and I answer the same as follows:
POINTS FINDINGS
1. Whether the order passed by the Enquiry Officer
calls for any interference?
No
2. What order ? As per final
order.
R E A S O N S
AS TO POINT NO.1:
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10. Heard both the learned counsel.
11. It is case of the appellant that the Bombay Municipal
Corporation Act, had empowered the Municipal Commissioner to sell
any immovable property of the Corporation having value less than
Rs.50,000/ with the approval of the Improvement Committee and with
the sanction of Corporation. The Municipal Corporation after
considering the said provision had arrived to the conclusion that the
Corporation would be benefited a lot, if ground floor structures allotted
on ownership basis to the Municipal employees. Therefore, proposal
was made to convert the ground floor structure allotted on leave and
licenese basis into ownership basis. After recovery of construction cost
of the said premises the proposal was submitted to the Improvement
Committee. On 24th April 1985 said proposal was given for sanction of
Corporation. The proposal for converting of quarters on leave and
license into ownership basis after recovery of construction cost of the
premises and leasing of the land to the societies. For conversion
proposal while processing it, the Municipal Commissioner wanted to
give formal intimation about his intention of leasing the plots to the
Societies. Improvements Committee has given the approval to said
proposal on 10th August 1989. The Corporation had accorded their final
sanction on 01.09.1989 for conversion proposal as proposed by
Municipal Commissioner without any change. Many circulars were
issued by the Corporation for the guidance of the staff and for giving
effect to the policy made. The selling price of the quarter is equal to 100
months rent. The proposal for conversion of staff quarters was made
and decided by Municipal Commissioner on 24th April 1985. Since the
date of the decision of Municipal Commissioner i.e. from 1985 to 1998
the Corporation was recovering all the charges as per laid down policy
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and doing the needful in respect of the retiring employees. The
recovery towards the sell cost of the quarter at the rate of five years rent
or one third of gratuity whichever more, was being made.
12. It appears from the record that on the basis of circulars and
resolution passed by the Municipal Corporation, the appellant was in
possession of said staff quarter even after his retirement. According to
appellant, as the Corporation has resolved according to C.R. No.343 the
respondent has converted enquiry premises as staff quarters into
ownership basis and therefore need not to vacate and hand over the
possession of the enquiry premises to the respondent.
13. I have gone through the resolution passed by the said
Corporation. As per the minutes of meeting with the Hon'ble Chief
Minister, Government of Maharashtra, Municipal Commissioner has
submitted true fact that proposal to convert staff quarters into
ownership basis cannot be considered. Appellant challenged the issue
of conversion of enquiry premises into ownership basis as per
C.R.No.343 before the Hon'ble High Court. As per circular the retired
benefit i.e. gratuity of appellant after his retirement is retained and
allowed the appellant to continue the occupation of enquiry premises,
said premises have been converted into ownership basis. The cost of
enquiry premises will be adjusted from retired benefit which is withheld
by respondent and therefore need not vacate and hand over possession.
Though he has made statement there is no any document to show that
he is allowed to retain the possession permanently on ownership basis.
While dismissing the writ petition, the Hon'ble High Court has directed
to hand over the possession within three months from the date of order.
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14. Upto Hon'ble Supreme Court the appellant lost the battle.
Though the specific order is made by the Hon'ble High Court that there
is no provision in the MMC Act which obliges Municipal Corporation to
make a provision for housing its retired employees. The appellant is still
stick up with the assurance given by Mumbai Municipal Corporation on
the basis of resolution. There is no statutory directions which can be
claim in such matters. Only on the basis of resolution passed by the
Municipal Corporation, the appellant is claiming that he is authorized in
occupying the quarter. Admittedly, premises is given as a staff quarter.
He has admitted that he has executed leave and license agreement. He
has also admitted that he retired from the municipal service on
superannuation. Only because there is said resolution which is not in
existence the Hon'ble High Court and Hon'ble Apex Courts have decided
the said issue and rejected the claim of appellant, still he is claiming
that he is in authorized occupation of said quarter. The Enquiry Officer
has rightly held that appellant is in unauthorized occupation in relation
to the corporation premises therefore he has rightly passed the order. I
agree with the observations made by the Enquiry Officer. Hence,
interference at the hands of this Court is not required. In the result, I
proceed to pass the following.
O R D E R
Misc.Appeal No.149 of 2018 stands dismissed.
19/08/2022 (V.V.JOSHI)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 19/08/2022
Transcribed on : 19/08/2022
Signed by HHJ on : 23/08/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
23/08/2022 11.00 a.m. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SMT. V.V. JOSHI (CR No.19)
Date of Pronouncement of Judgment/Order. 19.08.2022
Judgment/order signed by P.O on 23.08.2022
Judgment/order uploaded on 23.08.2022
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