Order 1

Order Details: Copy of Judgment
Pdf Text: 1 SC151.18
Received on : 16/04/2018
Registered on : 18/04/2018
Decided on : 15/06/2018
Duration : Y M D
00 01 27
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.151 of 2018
Satyanarayan Girijashankar Pandey
age 66 years, Occu.:bidi cigarette
vendor at shop no.ST75, New
Mini Shopping Complex, New
Navy Nagar, Colaba, Mumbai5 ..Appellant
V/s.
1 The Administrative Officer
Navy Nagar, Colaba, Mumbai5
2 The Estate Officer
Western Naval Command
Headquarter, INS Angre,
SBS Road, Mumbai1 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 15/06/2018
(C.R.No.19)
Advocate Ms.Shradhanand Rodrigues i/b. Advocate Mr.Deepak Pandey
for appellant.
Advocate Mr.Rajguru for respondents.
O R A L J U D G M E N T
The present appeal is against the order of eviction dated 6th
April,2018 passed by the respondent no.2the Estate officer in the
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inquiry proceeding conducted under the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 for the premises i.e. stall no.75, in
New Mini Shopping Complex, New Navy Nagar, Colaba, Mumbai
(hereinafter referred to as the 'inquiry premises').
2 The facts necessary to decide the present appeal are as
under:
Undisputedly, the inquiry premises is a public premises within the
meaning of the Public Premises (Eviction of Unauthorized Occupants)
Act (hereinafter referred to as 'the Act'). It is the case of the appellant
that he is in possession of the inquiry premises for more than 30 years
and running therein a pan bidi shop with the prior approval of the
respondent no. 1. He is a protected lessee and therefore cannot be
evicted without following due process of law.
3 The case of the respondent no. 1 the Administrative officer
in Navy, in short, is that inspite of repeated warnings to the appellant to
stop selling tobacco products in the inquiry premises which is situated
near Central school in the Navy Nagar area, the respondent continued
the same. The respondent no.2the Estate Officer served a show cause
notice dated 16th February,2018 upon him under sub Section (1) and
Clause (b)(ii) of subSection (2) of Section 4 of the said Act. The
appellant replied the same. The Ld.Estate Officer conducted an inquiry
and passed the order of eviction. The impugned order is challenged in
this appeal.
4 I have heard ld.counsels for both the sides and perused the
records. The following points arise for my consideration and my
findings thereon are as under for the reasons to follow:
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POINTS FINDINGS
1 Whether the appellant is in
unauthorized occupation of ..In the affirmative
the inquiry premises?
2 Whether the impugned order
directing eviction of the
appellant is just, proper ..In the affirmative
and legal?
3 What order? ..As per final order
R E A S O N S
5 Points no.1 and 2: Admittedly, entry of the appellant to
the inquiry premises is an authorized one. By an order of the
Administrative Officer dated 12th October,1984, the appellant was
allowed to do the pan bidi and cigarette business in the inquiry
premises. Thereafter, by an order dated 12th April,2000 he was allowed
to sell bread, toffee and chocolates in addition to tobacco, cigarette and
bidi. Thereafter, admittedly as per the directions of the respondents, he
stopped selling gutkha in his shop. Thereafter, vide letters dated 1st
October,2009, 19th August,2010, 1st September,2010 and 29th
September,2010, the respondent no. 1 warned him not to sell tobacco
and its products in view of the complaints from the residence. He did
not stop it. He was also asked to sign the leave and license agreement
to regularize his possession to the inquiry premises. He was adamant
for not signing the leave and license agreement. His condition was that
he shall be given a big premises to change his business. He treated
himself as a protected licensee.
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6 It is pertinent to note here that earlier, in an appeal against
the eviction order under PP Act, 1971, i.e. Misc.Appeal No.121/2010,
this court set aside the eviction order of the Estate Officer vide
judgment dated 4th February,2012 on the ground that appellant was not
given sufficient opportunity to submit his case before the Estate Officer.
The appeal was disposed of with the direction to initiate fresh eviction
proceeding within three months. However, the Respondent no. 1
initiated the present proceeding before the Estate Officer in the year
2017.
7 In the impugned order, the Ld.Estate Officer gave the
following reasons for reaching the conclusion of the unauthorized
occupation of the appellant:
1) Inspite of repeated requests from the concerned authorities
of the respondent no. 1, the appellant refused to execute the leave and
license agreement with respondent no.1 to regularize his possession in
the inquiry premises. He had certain reservations against certain
clauses in the said format. However, the same format of leave and
license agreement have been signed by other shopkeepers of Navy
Nagar.
2) The appellant was found absent for more than 300 days
from the said premises and he was not physically running the shop and
in this way, he has indulged in benami transaction. Even after issuing
warning to him, he continued his same behavior. He also did not obey
the order to close the premises for seven days and to pay the fine.
3) The Administrative Officer vide Circular dated 4th
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May,2000 banned the sale of tobacco products in Naval residential
premises. The appellant continued the sale of such prohibited items
despite revocation of the permission.
4) He cannot claim vested right in the public premises for
allotment of any shop to the public. The Government has to follow the
procedure prescribed and the appellant cannot be allotted a shop of
bigger size directly on his demand.
5) The appellant did not apply for a shop when it was
advertised and has maintained a stand that he should be given a shop
out of way.
6) The appellant's shop is in the close vicinity of the school
and the sale of tobacco exposes the adolescent to the risk of consuming
those products either in active manner or passively.
8 The appellant in his reply to the show cause notice
submitted as under:
He did not sign leave and license agreement as it is
discriminatory and he wants to change certain terms and conditions and
the same were denied to him. For his absence from the shop, he has
stated that he was required to go to his native place. He denied for
indulging in any benami transaction. In his absence, his son Krishanand
Pandey runs his shop as a helper. He denied selling of any gutkha item.
However, he was selling cigarette and bidi in view of the permission
granted to him. He has further stated that, in the meeting of the shop
committee dated 16th October,2005 it was resolved that after
completion of complex, the appellant will be allotted a shop in the
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complex with bigger area to enable him to do the business other than
bidi, cigarette shop. The appellant states that several persons have
come later than him and they have been allotted premises in the Mogul
Park, however, the appellant has been denied for the reasons known to
the authorities. He is a protected licensee and he cannot be evicted
without following due process of law. He denied selling of any tobacco
products to minor students at any point of time. It is his stand that he
may be allowed to change the business and allot the shop of bigger size
to run business. He submits that his present shop (inquiry premises) is
in the corner and of small size and it is difficult to do any other
business. He is paying rent every month and also following the
guidelines issued by the authorities from time to time. In the last he
says that the show cause notice has been issued to him by singling him
out and it is issued without following principles of natural justice.
9 In his appeal, the appellant raised the following grounds
against the impugned order:
The impugned order is passed without following due process of
law. No evidence has been led by respondent no.1 to prove the
allegations against the appellant. As he has denied to sign the leave
and license agreement, the impugned order was passed against him.
The respondent no.1 since 1991 is trying to evict the appellant and
every time the courts have observed that the respondents have not
followed the due process of law for eviction of the appellant. The
respondent no.1 has initially given him a bigger shop and thereafter the
size of the shop was reduced to 7 x 7 sq.ft. in the year 2016 by reducing
rent of Rs.3,500/ to Rs.1,600/ p.m. The rule of physical presence of
the appellant in the shop was intentionally put upon him to harass him.
At the end, the appellant submits that the impugned order is perverse,
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bad and illegal and therefore prayed to set aside the same.
10 In the instant case, admittedly there is no leave and license
agreement. The appellant refused to sign the same. He claims to be a
protected lessee. However, the ld.counsel for the appellant could not
show me as to how the appellant is a protected lessee. Furthermore,
the respondent no.1 has not directly and highhandedly removed the
appellant from the inquiry premises. The inquiry under the P.P. Act for
eviction of the appellant from the public premises is nothing but a due
process of law. The appellant cannot behave with such an adamant
attitude. The ld.Estate Officer reasonably justified that he cannot be
given a bigger premises directly out of turn. He did not apply for it
when there was an advertisement.
11 It is one of the contentions on behalf of the appellant that
the impugned order was passed without recording the evidence on
behalf of the respondent no. 1 by the ld.Estate Officer and the appellant
was not given proper opportunity to present his case. On careful perusal
of the impugned order, the ld.Estate Officer in para 33 and 34
mentioned details about the opportunity given to the appellant. Para
33 and 34 are reproduced below :
“33That you were intimated vide letter
No.127/Eviction/ST75 dated 06 Mar 18 that the Estate
Officer has considered your request. Accordingly, the
next date of personal hearing was fixed on 13 Mar 18.
However, you had refused to accept the letter
communicating the next date of personal hearing hence
the letter was pasted on the front portion of your shop so
that it was clearly visible to you. You thereafter, had
failed to appear before the Estate Officer on said dated or
time. Further the Estate officer, in the interest of Natural
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Justice and good conscience had given you one more
opportunity to appear for personal hearing on 20 Mar 18
at 11.00 hrs. You had again failed to appear before the
Estate Officer for personal hearing on 20 Mar 18. The
Estate Officer once again, in the interest of Natural
Justice and good conscience had given opportunity to
appear for personal hearing fixed on 21 Mar 18.”
“34 And whereas consequent to the personal
hearing, a written submission was handed over by you on
28 Mar 18. The same was scrutinized and it was found
that in your submission you have levelled
unsubstantiated, false and frivolous allegations. The said
submission was misconceived, misleading, baseless and
devoid of merits. Therefore, is held untenable.”
This shows that inspite of sufficient opportunities he preferred
not to appear. Furthermore, the Evidence Act and the Code of Civil
Procedure are not strictly applicable to the proceeding under PP Act. It
is a kind of summary proceeding. In such circumstances, in my opinion,
it cannot be said that this time also the appellant was not given proper
opportunity of hearing. The adamant attitude of the appellant for not
signing the leave and license agreement and putting the condition that
he should be given a bigger premises does not appear to be reasonable.
Even he cannot compel the Naval Authorities that as per resolution
passed in the meeting of the shop committee dated 16th October,2005,
he should be allotted a bigger premises. He has no documents at all to
show his entitlement to continue his possession in the public premises.
He cannot claim a vested interest in the public premises. He cannot
compel the Central Government officials to accept his terms. It is not
the case that the Naval Authorities arbitrarily and forcefully evicted
him. They are going through the process of law. No infirmity in the
order of the ld.Estate Officer. Even he could not show me his license
under Maharashtra Shops and Establishments Act, 1948 for running his
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business in the inquiry premises. It appears that he is running his shop
since many years without license. For these reasons, I hold that the
appellant is an unauthorized occupant in the inquiry premises and the
order of the ld. Estate Officer is legal proper and correct. In such
circumstances, I do not find substance in the appeal and as such I
answer both the points accordingly.
12 This court also made abortive attempts to settle the matter
between the parties before pronouncement of this judgment. However,
the appellant was firm to his stand. Hence, I pass the following order:
O R D E R
Misc.Appeal No.151/2018 stands dismissed with cost.
15/06/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on :15/06/2018
Transcribed on :15/06/2018
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: 20/06/2018 (At 3.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 15th June,2018
Order signed by P.O. on 20th June,2018
Order uploaded on 20th June,2018
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