Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 Misc. Appeal 154/19
Received on 21/05/2019
Registered on 22/05/2019
Decided on 24/02/2020
Duration Yrs. Months Days
00 09 02
CNR No. MHCC01-005146-2019
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
MISCELLANEOUS APPEAL NO. 154 OF 2019
Mahendra Kumar Sarvan Singh
Age 48 years
Occupation : Service
R/at : C-5 147,
DGQA Residential Complex,
Ghatkopar (W),
Mumbai – 400 086. ..Appellant.
Versus
Estate Officer,
DGQA Estate Management Cell
Ghatkopar (W)
Mumbai – 400 086. ..Respondents.
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 24th February, 2020.
(C.R.No.19)
APPEARANCES:
Advs. Kartikeya Bahadur alongwith Sangram Chinnappa for appellant.
Adv. Shriram Redij for respondent.
O R A L J U D G M E N T
Dissatisfied with the order dated 08.05.2019, of eviction
passed by the Estate Officer, under Sec. 5 of The Public Premises (Eviction
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of Unauthorised Occupants) Act, 1971 (hereinafter referred to as “Act”).
The present appeal under Sec. 9 of the Act came to be filed.
2. The brief facts which can be gathered from the record of the
Estate Officer that the appellant is working as a “HSK-II (weapon Fitter)
Stenographer with Navy as civilian employees, a non DGQA employee,
under the Ministry of Defence, Union of India. He had applied for
allotment of Quarter at DGQA. By letter dated 15.07.2009, the appellant
was allotted flat No. 147 type-C in building C-5 DGQA residential complex
for 11 months subject to further exchange. The allotment was extended
from time to time, and lastly till March, 2019. Thereafter, the appellant
was directed to vacate the premises. Even letters were written to the
superior of the appellant for direction to the appellant to vacate the
premises as other buildings are in very distress condition and the appellant
is non DGQA employee is not entitled for quarter at DGQA complex.
3. On 02.04.2019, The Estate Officer issued notice under Sec. 4
of the Act, asking the appellant to show-cause why the order of eviction
should not be passed on the ground that the quarters are meant for DGQA
employees and these quarters are required to shift DGQA employees
residing in building No C-1, C-3 & C-4, which are in distress condition.
The appellants were asked to appear before Estate Officer on 16.04.2019
and by the impugned order dated 08,05.2019, the Estate Officer passed an
order of eviction under Sec. 5 of the Act. Being aggrieved with the said
order of Estate Officer, the present appeal came to be filed.
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4. It is contended on behalf of the learned Advocate for the
appellant that there is no such rule which distinguished for the employees
department wise. Since, there is no vacancy in the building of Naval
Dockyard, the appellant cannot be evicted from the premises. He further
submitted that no proper procedure was followed by the Estate Officer. On
16.04.2019, the appellant appeared, but the meeting was taken by officer
other than Estate Officer. Thereafter, on 08.05.2019, the said officer has
has passed the impugned order. According to him, no principle of natural
justice has been followed. Therefore, on this ground the impugned order
is required to be set aside by allowing the appeal.
5. Per contra the Ld. Advocate for the respondent submits that
the allotment to the appellant was temporary one and the authority ends
by efflux. With regard to following of principle of natural justice, learned
Advocate for the respondent submits that R & P is before Court and it is
matter of record. He submitted that the court may consider the material
available on record, and pass suitable order.
6. Having heard Ld. Advocates for the appellant and respondent
and after going through the record, following points arise for my
determination and I have given my findings against each of them for the
reasons mentioned hereinafter.
POINTS FINDINGS
1 Whether the matter needs to be remanded
to Estate Officer for fresh hearing ?
..In the affirmative
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Judgment 4 Misc. Appeal 154/19
2. Whether the impugned order dated
08.05.2019 is just legal and proper?
...In the negative.
3 What order ? ..As per final order
-: R E A S O N S :-
AS TO POINT NOs.1 to 3:
7. At the outset, it is pertinent to mention here that, the present
appeal were not argued in detail on merit. The point only which was
canvassed before me in detail is that, the principle of natural justice were
not followed by the Estate Officer. According to appellant, the Estate
Officer has not taken any personal hearing at all. On 16.04.2019, under
the guise of hearing, another officer attended the meeting and only had
general discussion with regard to alternate accommodation. According to
him, the Estate Officer never heard the appellant and straightway passed
the impugned order on 08.05.2019. It is violation of the principle of
natural justice.
8. Scrutiny of the record and proceeding of the Estate Officer,
goes to show that by issuing notice under Sec. 4 of the Ac, the Estate
Officer has asked the appellant to appear before him on 16.04.2019. The
minutes of proceeding of dated 16.04.2019, goes to show that appellant
appeared alongwith other noticee. However, the said meeting was
conducted by Col. M.K. Sawant, QC Chairman on behalf of Estate Officer
as the Estate Officer, Col. Manish Kumar was on temporary duty at Head
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Judgment 5 Misc. Appeal 154/19
Quarter, New Delhi. Rather, it appears it was some sort of meeting.
Thereafter, no date was given to the appellant and on 08.05.2019
straightway, the Estate Officer passed the impugned order of eviction.
9. On perusal of the provision of the Act and Public Premises
Eviction of unauthorised occupants Rules 1972, goes to show that, it is
imperative on the part of the Estate Officer to give personal hearing to the
noticee or the occupant against whom eviction proceedings are initiated
and examine any evidence produced by the noticee, but that has not been
done in this case. It is proprietory of judicial and quasi judicial authority
that who passes the order shall hear the case. In this case so called
hearing has been taken by Col. M.K. Sawant, who is not an Estate Officer
at all, and subsequent to that hearing the Estate Officer straightway passed
the impugned order. Thus, no hearing was given to the appellant by the
estate officer.
10. No doubt, the objects of the Act is to provide a speedy remedy;
the Estate Officer is expected to arrive at a decision expeditiously.
Although, the provisions of The Code of Civil Procedure and The Evidence
Act are not strictly applicable to the proceeding before the Estate Officer,
what is necessary to be complied with during the inquiry, the principles of
natural justice. Needless to mention that in catena of the judgments
Bombay High Court and the Apex Court have held that in inquiry before
him, the Estate Officer has to follow the principle of the natural justice. In
this case the principle of natural justice has not been followed by the
Estate Officer, on this ground alone the impugned order does not stand on
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Judgment 6 Misc. Appeal 154/19
the judicial scrutiny and is liable to be set aside.
11. In the aforesaid circumstances, the matter needs to be
remanded back by setting aside impugned order. It is made clear that this
Court has not gone into the merit of the case, the Estate Officer shall give
opportunity of hearing to the appellant by following principle of natural
justice and pass the order without being influenced by the order in this
appeal. In the result, the present appeal succeeds. Hence, following
order.
-: O R D E R :-
1. Miscellaneous Appeal is partly allowed.
2. The matter be remanded back to the Estate Officer
for deciding afresh by giving chance to the
appellant of personal hearing.
3. The Estate Officer shall dispose off the case as
expeditiously as possible.
4. Record & Proceeding be sent back to The Estate
Officer.
24.02.2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 24.02.2020.
Transcribed on : 24.02.2020.
Signed by H.H.J. on : 28.02.2020.
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Judgment 7 Misc. Appeal 154/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mr. S.S. Bathe
Upload date and time: 02.03.2020 (12.31 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 24.02.2020
Order signed by P.O. on 28.02.2020
Order uploaded on 02.03.2020
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