Final Order 1

Order Details: Copy of Judgment
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MHCC010050322023 Presented on : 06.05.2023
Registered on : 24.07.2023
Decided on : 27.03.2024
Duration : 00 10 21
Years Months Days
Exh. …
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
MISCELLANEOUS APPEAL NO. 93 OF 2023
Duby Kailashnarayan Umashankar
Adult occupation – worker
Presently residing at
Room/Hut No. Nill,
Samyak Nagar, Vikhroli (West),
Mumbai - 400 083.
…. Appellant
Versus
The Union of India
Through Divisional Engineer (LM),
Central Railway, Administration …. Respondents
CORAM : HIS HONOUR THE PRINCIPAL JUDGE, SHRI
A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 27th DAY OF MARCH, 2024
Appearances :-
Adv. Mayur Sapkale, Learned Counsel for the appellant.
Adv. L. K. Tripathi, Learned Counsels for the Respondents.
ORAL JUDGMENT
1. By the present appeal, the appellant/s is/are challenging the
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impugned order passed by the learned Estate Officer with regard to
properties situated at Vikhroli as the properties involved and the issues
involved in these set of appeal is the same factually and legally, these
bunch of appeals are disposed of by common Judgment herein.
2. The learned Estate officer issued show cause notice calling to show
cause on 11.08.2022. In pursuance to the show cause, the concerned
occupant/s appeared and tendered documents and reply. The learned
Estate officer thereafter passed impugned order. Hence, present set of
appeals.
3. Heard learned counsel for the appellant/s. It is vehemently
contended that these notices issued U/s.4 of Public Premises Act does
not state the nature of information and the grounds for eviction and so
also does not mention description of the properties. It only mentions of
alleged illegal construction. No hearing is given, no opportunity of
contesting the show cause is properly given. There is no source of
information or information received to the learned Estate Officer given.
The copy of plan is neither certified nor from public record nor
supporting evidence in support thereof. Thus, entire unilateral attempt
has been made. The present appellant/s are slum lands by the Bombay
Municipal Corporation and accordingly. They cannot be said to be
unauthorized occupancy. The areas are declared as slum. The
properties is of not of Railways. The tenancy is of MCGM. The
documents are not even noted and considered hence there is no proper
procedure followed and proper findings given. Hence, appeal/s be
allowed.
4. Heard learned Counsel for the respondents. He vehemently
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submitted that the Railways itself is the record maintaining authority
and record itself is source of information for the concerned learned
Estate officer. On perusal of the said information, notice was issued.
There is due compliance and information given with regard to the
allegations. The appellants do not have any right to occupy. They have
tendered documents which does not contemplate any further hearing or
raise any questions to challenge the authority of Railways. There is is
no objection taken of improper description or raised any reason. Parties
were duly noticed and were present and more than nine months were
taken to decide the said matter. Provisions of Slum Rehabilitation Act is
not applicable. Considering the same, one has to consider principles of
natural justice in its correct perspective. Same has been followed. The
Railways empowerment is stalled because of illegal acts and hence the
appeals should be dismissed.
5. Perused the record and proceedings, impugned order, appeal memos
and documents, considered the submissions, 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 proper and due procedure
is followed by the concerned Authority?
In the
Negative
2. Whether the appellant/s can be said to
be unauthorized occupant/s?
Does not survive.
3. Whether the impugned order
requires an interference?
In the
affirmative
4. What order? As per final order
REASONS
As to Point Nos.1 & 2:
6. The provisions of the Public Premises (Eviction of Unauthorized
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Occupants) Act is a special and self contained procedure that
contemplates of proceedings can be initiated by the learned Estate
officer on receipt of information and being satisfied with the nature of
information received that action should be initiated and eviction is
required to be directed. Thus, satisfaction is of a stronger basis and
nature, then general prima facie case. Thus, some prior steps and
satisfaction has to be followed. The source of information and the
information received by the learned Estate officer would be of
considerable importance for placing reliance in defence by the
opponents in the said proceedings.
7. In the present case, there is no source of information or prior
information disclosed or what information was considered by the
learned Estate Officer to arrive at the satisfaction. Thus, if there is no
information there should be no satisfaction and thus U/s.4 notice
cannot be issued. It is contended that the learned Estate Officer suo-
moto examined the record of Railways. Such examination and
documents should be made available to the respondents so that their
fair right can be upheld. Same has not been done.
8. In the present proceedings, it is seen that the Railways rely upon a
small chit of a map which has no seal mark authenticity or description.
Said map is also not explained or relied by any supporting evidence by
the Railways. Mere filing of a map or extract of a map will not suffice.
As rightly opined by the learned Estate officer, the ownership rights or
occupancy rights of a party are required to be supported by the some
documents like 7/12 extract, property card, Kami-Jast Patrak, Mutation
Entry, Award Plan, Registration etc. I believe same rule could be made
applicable to the Railways also at least to some extent. Same is absent.
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9. The record does indicate that the documents were submitted namely
premises falling in Slum. The Ld Counsel for respondents relied upon
the Judgment of Mrs. Asha Shikare V/s State in W.P. No 3254-2016
dated 23-1-2017 which can be distinguished in a manner that Sec 5A
proceedings under PP Act were initiated there and decided and attained
finality. The areas were not declared as Slum Areas . Thus that has to be
considered if applicable by the Ld. Estate Officer. Same is not
considered. Considering these circumstances, the right of occupancy, the
right of Railways will have to be considered by the learned Estate
officer, if so required but certainly some hearing would be certainly
contemplated.
10. The proper hearing could not take place for the simple reasons that
the show cause notice issued U/s.4 does not mention any of the ground
and does not even mention the description of the property. . This would
make the entire procedure non-est. It is mandatory to state grounds.
Merely because some documents are filed by the appellants will not
imply that the grounds were known to them. Thus, the information on
the basis of which notices are issued are absent.
11. Sec 4(2) of P.P. act states that “ The notice shall—(a) specify the
grounds on which the order of eviction is proposed to be made; and “.
Notice u/s 4 of P.P. act does not mention the information, the notice
does not mention the grounds, the notice does not mention the
description of property. All create serious doubt about the nature of
proceedings and this resulted in lack of proper issues being considered
and findings of the learned Estate Officer. Considering this, no proper
procedure has been followed by the learned Estate Officer. Useful
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reference can be taken from the judgment of New India Assurance
Company Ltd. V/s. Nusli Neville Wadia & Another (2008)3 Supreme
Court Cases 279.
12. In such circumstances, I hold that due and proper procedure is not
followed. Considering these aspects, I would leave open the Railways
and the learned Estate officer to follow proper procedure. Whether the
learned Estate officer can act upon his own information is also a matter
of consideration. Considering all these circumstances, I intend to
remand the matter back to the learned Estate officer without giving any
finding of merits of the case on aspect of unauthorized occupancy.
Hence, I answer the point no.1 in negative and point no.2 does not
survive.
As to Point No.3:
13. The learned Estate Officer has not appreciated the procedure to be
followed and also has not given fair opportunity to the parties to
represent and put up their claims and has also not considered the
documents. In such circumstances, the impugned order requires
interference and hence, I pass the following order.
ORDER
1. Misc. Appeal is partly allowed.
2. The order passed by the learned Estate Officer is hereby set aside.
The matter is remitted back to the learned Estate Officer to
proceed from the fact, stage of collection of information.
3. Fresh Notices would require to be issued U/s.4 of the Public
Premises (Eviction of Unauthorized Occupants) Act.
4. The learned Estate Officer is requested to complete the
proceedings within Nine Months of receipt of the order.
5. The parties to cooperate for early disposal of the cases before the
Learned Estate Officer.
6. All the pending interim application/s, if any, is/are disposed off.
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7. All the rights and contentions of the parties are kept open.
8. Record and Proceedings be sent back to Respondents.
9. Appeal is disposed off accordingly.
DATE : 27.03.2024 (ANIL SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated on : 27.03.2024.
Signed on : 24.04.2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24/04/2024 4:30p.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. 27.03.2024
Judgment/order signed by P.O on 24.04.2024
Judgment/order uploaded on 24.04.2024
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