Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHCC010053192019 Received on :: 28.05.2019
Registered on :: 06.06.2019
Decided on :: 09.02.2023
Duration :: Y03:M08:D12:
Exhibit ::
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.140 OF 2019
(INQUIRY NO.N/30 OF 2018)
[Mr.Eknath Krishanaji Sawant ]
(Since Deceased)
Through the Legal & Representatives i.e.
1(a)Smt.Snehal Surendra Sawant,
Age 62 years. Occ.: Housewife,
1(b)Mr.Rajendra Eknath Sawant,
Age : 62 years., Occ.Retired,
1(c)Mr.Karan Surendra Sawant,
Age :29 years, Occ.Business,
All Indian Inhabitant and
R/at: A8/1, S.G. Barve Nagar,
Municipal Colony, Barve Nagar,
Ghatkopar(W), Mumbai 400 084 and
1(d)Mrs.Tanvi Ravindra Desai,
(Maidan Name Mrs.Tanvi Surendra Sawant)
Age : 34 years, Occ.:Housewife,
Indian Inhabita, residing at D5/6,
S.G. Barve Nagar,Municipal Colony,
Barve Nagar, Ghatkopar(W),
Mumbai 400 084 …Appellants
Versus
1. The Municipal Corporation Gr.Mumbai
A body Corporate constituted under
the Mumbai Municipal Corporation
Act 1888 and having its Principal
Offices at Mahapalika Marg,
Mumbai 400 001.
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2. The Chief Enquiry Officer,
“N” Ward, Mumbai Municipal
Coporation, Jawar Road,
Ghatkopar(East), Mumbai400077. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 9th FEBRUARY, 2023
Ld.Adv.Suresh Muluk for appellants.
Ld.Counsel Dharmesh Vyas a/w Adv.Gajanan Giri for Respondent/BMC.
ORAL JUDGMENT
1. By the present appeal, the appellants challenges the impugned order
passed by the Chief Enquiry Officer in Enquiry No.N/30 of 2018 dated
23.04.2019.
2. It is the case of the appellants herein is that one late Eknath Krishanaji
Sawant was occupying the premises. He said to have retired in the year
1981. Thereafter, after his death, there was some proceedings initiated
and one of the sons Rajendra preferred Writ Petition No.2165 of 2009
along with others employees. The Writ petition was dismissed and
thereafter Special Leave Petition was also preferred and same came to
be dismissed and eviction proceedings have been initiated.
3. The case of the Corporation is that late Eknath Krishnaji Sawant was
allotted the premises on leave and license basis being in service of the
Corporation and as staff quarter and thus on his retirement, death the
other occupants became unauthorized occupants. The aspect of rights
with regard to the ownership and grant of ownership scheme to the
occupiers of these staff quarters was raised by the son Rajendra in WP
No.2165 of 2009 and same has been held in negative and SLP before
the Hon'ble Supreme Court also came to be dismissed. It is contention
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that subsequent thereto notice to vacate has been issued and as no
vacation notice is complied, proceedings U/s.105 have been initiated. It
is further pointed out that considering these circumstances, the findings
of the learned Chief Enquiry Officer are correct. It is further submitted
that the various documents namely the staff register shows that the
quarters were occupied by Municipal employees. It is further pointed
out that the letter of allotment does not show that it was for the
purpose as stated therein. Merely because allocation is given of staff
quarters considering some personal reasons for availing the quarter
cannot be the ground for considering it to be a not staff quarter and of
other category. Further, in view of the submissions made and the
litigation filed earlier they cannot raise this question again. Considering
all these circumstances, the defence of the appellants that he with
father late Eknath Sawant was not occupying the said premises as staff
quarter cannot be accepted and considering the same he submitted that
the appeal be dismissed.
4. The learned Counsel for the appellants/original opponents vehemently
submitted that it is correct that Rajendra had preferred Writ Petition,
but it was under some influences of the other members and employees
of the vicinity and it was subsequently found that the father was in fact
given premises as the tenanted premises was demolished. It is further
submitted that as in contradiction with other employees, all the
retirement dues of the father has also been paid. The pension papers
indicate that no quarter is in the possession of late Eknath. All these
contentions support the factum of the late Eknath occupying the
premises in separate tenancy capacity and not as staff quarter.
Considering the aspect, the termination of the occupation on the basis
of staff quarter cannot be upheld. Further proper notices have not been
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served and issued. Considering the same, impugned order requires
interference and should be set aside.
5. Perused the impugned order and 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 findings in the Writ
Petition No.2165 of 2009 will bind the
appellants?
:: In the
Affirmative
2. Whether the Corporation establishes
that the appellants are in unauthorized
occupation?
:: In the
Affirmative
3. Whether the impugned order requires
any interference?
:: In the
negative
4. What order? :: As per final order
REASONS
As to Point Nos.1 & 2:
6. It is necessary to point out that the earlier Writ Petition No.2165 of
2009 was preferred by another son Rajendra and the present petition is
preferred also by other legal heirs. It is also admitted that late Eknath
was in employment of the Corporation. Rajendra preferred the Writ
petition specifically contending that the quarters were allocated as staff
quarters. It was specific case of Rajendra that the Corporation had
assured that the premises would be given on ownership to the staff
quarters and as it was not complied with, preferred the said writ
petition. The reliefs claimed in the Writ Petition are also of considerable
importance. The reliefs specifically relate to the same premises and state
about status of late Eknath and status of Shri Rajendraji and other legal
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heirs in the present premises. Considering this aspect, it would be
necessary to consider, if now a different stands can be now permitted.
7. At the outset, I would submit that if one considers the documents on
record although it cannot be said to be conclusively so, there is some
force in the contention with regard to the occupation of the premises by
late Eknath because of the residential premises having collapsed. But at
the outset, it cannot be said that merely because premises have
collapsed, by way “rehabilitation” this premises was allotted. Thus,
although one can accept at the most that the premises were given to
late Eknath, after the event of collapsing of his tenanted premises, one
is not sure in what capacity he occupied the new premises as
rehabilitation or staff quarters. Suffice to say that at this moment the
statement in the Writ Petition is clearly in contradiction of the present
case put up.
8. The various documents of retirement also do not conclusively establish
the aspect of the quarter being allotted as private tenancy between
Corporation and late Eknath. Even if one considers that aspect, the
appellants cannot take up that stand as they are now their rights are
already adjudicated of the counter stand taken. Once a question and
right is raised and decided by a Competent Court and has attained
finality, the same dispute cannot be reopened again. It is surprising that
the delay in taking stand is doubtful and , the facts were in knowledge
of the appellants then also. If there is rightful selection of option by the
Legal heirs then, they cannot now turn over and contend otherwise,
once they lost the earlier cause.
9. In these circumstances, one has to consider the aspect in view of the
staff tenancy. It is apparently clear that for the purpose of present
appeal that claim of staff tenancy is abandoned by the present
appellants. Thus, there is nothing on record to show by the appellants
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in what capacity or what right they can occupy the premises. Thus, the
contention of the Corporation that the appellants are unauthorized
occupants is established on the face of it.
10. In my view, if at all the appellants wanted to retract from their
earlier statements, it should have approached the appropriate Court and
forum and present claim to be considered. The earlier Writ Petition's
statements are of allocation of staff quarters, the original allottee having
retired and subsequently died, shows that the present appellants are
unauthorized occupants.
11. Considering the same, I hold that the findings of Writ Petition
would bind the present appellants and they cannot aver counter to the
same and raise different case altogether and secondly in view of these
circumstances and findings in that Writ Petition also, the appellants are
unauthorized occupants and I answer point nos.1 and 2 accordingly.
As to Point No.3:
12. Having consider these circumstances, the learned appellate
authority has considered these circumstances in view of which probable
of the facts and documents of case, it cannot be said to be perverse. In
such circumstances, I am of the view that the impugned order does not
require any interference and I pass the following order.
O R D E R
1. Misc.Appeal No.140 of 2019 is dismissed.
2. Judgment and order passed by the learned Chief Enquiry Officer in
Enquiry Proceedings No.N/30 of 2018 dated 23.04.2019 stands
confirmed.
3. The appellants are granted time to vacate the premises by
31/03/2023 subject to filing of undertaking that they physically are
in occupation of the premises and that they will not create any 3rd
party interest therein and further that they will honour the order
passed by the learned Chief Enquiry Officer.
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4. An undertaking to be filed within 4 weeks, failing which the order
will be liable to be executed forthwith.
5. Record and Proceedings be sent back to Respondent No.1.
09/02/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 09/02/2023
Transcribed on : 13/02/2023
Signed by HHJ on : 17/02/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17/02/2023 3.00p.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. 09.02.2023
Judgment/order signed by P.O on 17.02.2023
Judgment/order uploaded on 17.02.2023
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